Leslie v. City of St. Louis

Wagner, Judge,

delivered the opinion of the court.

The appellant’s bill prayed for an injunction to restrain the city of St. Louis from selling certain real estate which had been assessed for benefits upon a pretended condemnation before the *477 land commissioner. A. demurrer being interposed and sustained by the court, the allegations in the petition must be taken as confessed. Rut it is not deemed necessary to examine all the charges, as the two leading questions are decisive. These are: first, whether, before instituting proceedings for the condemnation of the property, it was necessary that an attempt should be made with the owner to effect an agreement in reference thereto ; and second, whether injunction in the present case is the appropriate remedy.

The city charter declares that whenever the city council shall provide by ordinance for the establishing, opening, widening or altering any street, avenue, alley, wharf or public square, or route for sewer, and it becomes necessary for that purpose to take private property, and no agreement can be made with the owner or owners thereof, to the satisfaction of the city council, just compensation shall be paid therefor, to the person or persons whose property is so taken, which the land commissioner shall cause to be ascertained by a jury of six disinterested freeholders of the city, etc. (Sess. Acts 1867, p. 72, § 2.)

As no effort was ever made to agree upon any terms with the appellant, who owned the property, and the land commissioner proceeded in total disregard of this provision, we must determine whether it is merely directory or whether it is imperative and constitutes a condition precedent to the exercising the right of eminent domain by the city.

. Perhaps no principle has been oftener proclaimed by the courts, or is more firmly established in the very ground-work of the law, than that whenever, in pursuance of authority, the property of an individual is to be divested against his will, there must be a strict compliance with all the provisions of the act authorizing such a proceeding.

The power to take private property for public use without the consent of the owner is in derogation of the rights of the citizen, and can only be justified on grounds of absolute necessity; and, when exercised, the power conferring the right must be strictly adhered to and complied with. It is no answer to say that certain things in a given enactment, ccmferring the authority, do not *478 appear to be essential. Everything is essential which the law has said should be done before this high prerogative right can be carried out and enforced.

^ Where the law relating to roads in St. Louis county authorized the seizure of material belonging to individuals for road purposes, “when no private bargain could be made on fair terms,” this court held that under the provisions of the enactment the County Court could not authorize a contractor for building a public road to divest the owner of his property for such a purpose when the proof before it failed to show any attempt to make a bargain with the owner. (Lind v. Clemens, 44 Mo. 540 .)

So, where the act in Pennsylvania regulating railroad companies provided that if the companies could not agree with the owner or owners of property for the compensation proper for the damages done or likely to be done, or sustained by the owner or owners, then the court should appoint viewers to meet and decide upon the amount of damages and make their report, it w7as decided that there was no right to petition for the appointment of viewers until an effort had been made to agree upon terms of compensation. (Reitenbaugh v. The Chester Valley R.R., 21 Penn. St. 100.)

In New York, where the statute authorized the exercise of the powrer in cases where the commissioners and owners disagreed as to the amount of compensation, the court declares that the Legislature manifestly intended to give the owner the benefit and opportunity of a voluntary sale, and required the other party to make a fair and honest effort to purchase the land of him before commencing proceedings to take it adversely. Therefore the disagreement of the parties as to the amount of compensation was a material requirement of the statute and an essential prerequisite to the exercise of jurisdiction in the premises. (Dyckman v. The Mayor, etc., 1 Seld. 434; Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. 107 .)

The act provides that when no agreement can be made with the owner or owners of the property to the satisfaction of the city council, then the land commissioner shall cause the amount to be ascertained by a jury of six disinterested freeholders. The failure *479 of the parties to agree is the essential prerequisite, and without it the land commissioner has no jurisdiction to proceed. The duty of proving the disagreement devolves upon the city, for the rule is that the party who claims title under the exercise of the right of eminent domain must show affirmatively that the requirements of the statute have been complied with.

The evident intention of the Legislature was that the owner should have the right and opportunity to dispose of his property for a just and fair compensation, before proceedings should be instituted to deprive him of it against his will. This consideration he is entitled to, and it was not designed to deny him this right. The plain language imports this, and to hold otherwise would do violence to its meaning and injustice to the citizen.

The next question is, can the party, claim equitable relief and pursue his remedy by the process of injunction? In cases like this the prior adjudications of this court have decided the question in the affirmative. Courts of equity never allow relief by injunction to prevent the sale of personal property, but where real property is about to be sold by a municipal corporation, for the payment of taxes or assessment, equity will interpose. The distinction lies in the fact that in the one case a full and complete remedy is furnished at law, while in the other a cloud is about to be cast over a land title, and the court interferes to prevent it. (Lockwood v. City of St. Louis, 24 Mo. 20 ; Fowler v. City of St. Joseph, 37 Mo. 228 .) Wherefore the judgment must be reversed and the cause remanded.

Judge Currier concurs. Judge Bliss, being interested in the question, expresses no opinion