text:
    In re Proceedings Taking and Condemning Private Property in Kansas City. KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. James G. ASHLEY, Sr., et al., Respondents.
    No. 51618.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 10, 1966.

      Herbert C. Hoffman, City Counselor, Ned B. Bahr, Assoc. City Counselor, Benj. M. Powers, Sp. Counsel, for appellant.
    Charles W. Hess, Kansas City, for respondent, Ashley, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, of counsel.
    Abraham E. Margolin, Norman M. Ar-nell, Margolin & Kirwan, Kansas City, for respondents American Academy of General Practice, Inc., Twin Oaks, Inc., Althea Steil and Louis Mang.
    Maurice O’Sullivan, Kemp, Koontz, Clag-ett & Norquist, Kansas City, for respondent Rock Springs Realty, Inc.
    Seth Lacy, Lacy & Lacy, Kansas City, for respondent Meadow Park Land Co.
    Loeb Granoff, Rich, Rich & Granoff, Kansas City, for respondents Safehi Realty Co. and Emma Seymour.
    Terence M. O’Brien, Kansas City, for respondent Cecilia W. Bradley.
    Dick H. Woods, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondents Second Presbyterian Church of Kansas City, Gladys Schnorf, Howard M. and Frances C. Gaston and Katz Drug Co.
    Charles L. Carr, Kansas City, for respondents Theodore and Doris Aschmann.
   HIGGINS, Commissioner.

Appellant’s condemnation proceeding was dismissed upon respondents’ motions to dismiss which raised a constitutional question of lack of power and authority in appellant to condemn a railroad right of way longitudinally.

Appellant is a constitutional charter city under Article VI, Section 19, Constitution of Missouri, 1945, V.A.M.S., and it brought this condemnation proceeding under Articles I and VI of its charter. Appellant’s Ordinance 24408, together with the required plat prepared by appellant’s city engineer, was filed as the pleading in this condemnation suit November 25,1959. The ordinance provided in pertinent parts:

“WHEREAS, it is necessary for the convenience and safety of the public that a nonaccess freeway be provided to facilitate movement of north and south vehicular traffic to and from the congested downtown area and the outlying areas in a southerly section of the city; and
“WHEREAS, the right of way owned by Kansas City Public Service Company and now used for a single track railroad * * * to serve certain businesses and industries, to the extent that said right of way extends from the southerly line of Westport Road to the center line of Prospect Avenue in Dodson is deemed suitable and necessary for said nonaccess freeway for public use, NOW, THEREFORE,
“BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
“Section 1. That a nonaccess freeway or highway be and the same is hereby opened and established and shall be constructed from the southerly line of Westport Road to the center line of Prospect Avenue in the Dodson area, including in its boundaries the lands hereinafter described.
“Section 2. The following lots and tracts of private property hereinafter described are hereby condemned and taken for public use for said freeway * * * : (Here follow descriptions of property taken, same being a strip of land 100 feet wide and approximately eight miles long except for part of the strip which is 50 feet wide and 1,282 feet long.)
“Section 3. Said condemnation shall be subject to, and there are reserved to Kansas City Public Service Company, its subsidiaries, successors and assigns, such rights as Kansas City Public Service Company now has to use said right of way for railroad purposes, * * *. Such improvements as the City may make upon said freeway shall be at the expense of the City and the City shall have the right to cause the relocation of rails, ties, tracks, poles, wires, and other appurtenances within said right of way, at its own expense, but not in such manner as to prevent the rendition of adequate and efficient railroad service.
“Section 4. No abutting owners shall have the right of direct access to or from said freeway or its right of way, but this provision shall not be deemed to prevent the delivery of freight by or to abutting owners or others using the service of Kansas City Public Service Company, its subsidiaries, successors and assigns, for railroad transportation.
“Section 5. Just compensation for the private property herein condemned and taken, and damages accruing by reason of said improvement shall be assessed and paid according to law * *

Several motions seeking dismissal of the proceeding alleging the ordinance to be invalid and unconstitutional were filed, after which appellant obtained a continuance to amend its ordinance “as an amended pleading to clarify the interests intended to be taken and to indicate there was a taking of all of the railroad owner’s right-of-way interest, and (deleting) the reservation.” The amended ordinance, Ordinance 26364, was filed August 28, 1961, and it provided in pertinent parts:

“WHEREAS, it is necessary for the convenience and safety of the public that a non-access freeway be provided to facilitate movement of north and south vehicular traffic to and from the congested downtown area and the outlying areas in the southerly section of the city; and
“WHEREAS, there is now pending in Division No. 3 of the Circuit Court of Jackson County, Missouri, Cause No. 621,035, a proceeding to condemn certain private property and rights therein for the right of way for a nonaccess freeway authorized by said Ordinance No. 24408, and by reason of pleadings filed in said cause, it appears necessary to clarify the description of the easement, rights, and interests intended to be condemned and taken thereby, and to describe the private property and rights taken with such particularity that all ambiguity therein be removed; and
“WHEREAS, for said reasons, it is necessary to strike out and repeal from said Ordinance 24408 all the provisions of Sections 1, 2, 3, 4 and 5, and to enact and insert in lieu thereof new sections 1 and 2, and re-enacting as a new section 3 the provisions of section 5 of said Ordinance 24408; and
“WHEREAS, the amendment of Ordinance No. 24408 in the above respects should be completed as soon as possible in order that said ordinance, as amended, may be filed promptly as an amended pleading in the aforesaid Cause No. 621,035 * * *. NOW THEREFORE,
“BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
“Section A. That Ordinance No. 24408, passed October 16, 1959, is hereby amended by striking out and repealing therefrom all of sections 1, 2, 3, 4 and 5 thereof in their entirety, and enacting in lieu thereof new sections 1, 2 and 3, and incorporating the same description by metes and bounds of the tracts condemned, and re-enacting as new section 3 the provisions of section 5 of Ordinance 24408, all relating to the same subject and plan of improvement, and which shall read as follows:
“Section 1. That a controlled access freeway or highway be and the same is hereby opened and established over and upon all of the lands described in Section 2 hereof by metes and bounds, extending from the southerly line of Westport Road to the center line of Prospect Avenue in the Dodson area, including in its boundaries the tracts hereinafter described.
“Section 2. All of the lands, property, interests, ownerships of or legal rights which are claimed by all parties in the following lots and tracts of private property is hereby condemned and taken for public use as an easement for a controlled or non-access freeway or highway, to be known as the Country Club Freeway, all of said lots and tracts being in Kansas City, Jackson County, Missouri, and described as follows: (Same as in Ordinance 24408.)
“Section 3. Just compensation for the private property herein condemned and taken, and damages, if any, accruing by reason of said improvement shall be assessed and paid according to law * * *.
“Section B. It is the intent of the Council that the plan of improvement incorporated in and all portions of Ordinance 24408, passed October 16, 1959, shall remain in full force and effect, except as to the aforesaid matter stricken and repealed therefrom and the new matter inserted in lieu thereof by way of amendment, for the purpose of clarifying and more particularly describing the rights and interests condemned herein.
“It is declared that the aforesaid changes do not constitute an abandonment of the proceedings in Cause No. 621,035, instituted pursuant to said Ordinance No. 24408, or affect the continuity of said proceedings except as to clarify the private property, rights and interests taken for public use.”

The Kansas City Public Service Company changed its name to Kansas City Transit, Inc., and the interest it owned in connection with this proceeding was transferred to its subsidiary, Kansas City and Westport Belt Railway Corporation, and it transferred the interest to respondents James G. Ashley, Sr., and James G. Ashley, Jr. The Ashleys contracted with the Belt Railway to continue railroad switching service in the same manner as they had rendered such public service under previous contract with the Kansas City Public Service Company and they were operating the railroad under tariffs filed with the Interstate Commerce Commission and the Missouri Public Service Commission at the time of the hearing when the proceeding was dismissed.

The motions to dismiss which resulted in the order of dismissal suggest three categories of movants-respondents: (1) The Ashleys as owners of the railroad right of way sought to be condemned; (2) American Academy of General Practice, Inc., Twin Oaks, Inc., Althea Steil and Louise Mang, Rock Springs Realty, Inc., Meadow Park Land Company, Emma Seymour, Safehi Realty Company, Cecilia W. Bradley, Second Presbyterian Church of Kansas City, Gladys Schnorf, Howard M. and Frances C. Gaston, and Katz Drug Company (Academy, et al.), owners of properties abutting the railroad right of way; and (3) Theodore and Doris Aschman, abutters who claim additional interest as owners of an alleged private road of necessity across the right of way.

It is admitted that this is an attempt to condemn a railroad right of way lengthwise or longitudinally at a time when it was devoted to a public use by operation of a railroad thereon; that “all matters presented for appellate review are on the pleadings, which include ordinances, motions and judgment of dismissal,” and the grounds for dismissal in the motions are in substantially the same language as the reasons stated by the trial court for sustaining the motions and dismissing the condemnation proceeding:

“(a) Kansas City does not have the jurisdiction or power, either expressly or impliedly, to condemn an operating railroad right-of-way lengthwise for a public highway, and the said movants have a sufficient compensable interest in the railroad right-of-way sought to be condemned to raise said question.
“(b) The railroad being presently operated upon the right-of-way involved is operated under tariffs filed with the Missouri Public Service Commission and with the Interstate Commerce Commission, and Kansas City has failed as a condition precedent for maintaining this proceeding to obtain permission from the Federal Interstate Commerce Commission and the Public Service Commission of Missouri authorizing the presently operating railroad to cease operation.
“(c) That the maintenance of this proceeding by Kansas City would constitute an abandonment (either actual or constructive) of the railroad right-of-way for which it has no authority.
“(d) That said railroad right-of-way is property already devoted to a public use and Kansas City cannot substitute one form of highway for the present form of public highway or railroad use.
“(e) That Kansas City acting through its City Council by passing Ordinance 26364 on July 14, 1961, seeks to cause an abandonment of the railroad right-of-way by taking all the legal rights of the present operating railroad so as to deny its operation, but said Ordinance 26364 does not constitute such a departure from the original proposed condemnation ordinance so as to constitute an abandonment of the proceeding.
“(f) That movants, James G. Ashley, Sr., and James G. Ashley, Jr., doing business as Kansas City Public Service Freight Operation, are not estopped to contest the validity of the condemnation proceeding * * * »

Respondents have moved to dismiss this appeal for alleged failure to comply with appeal provisions of the Kansas City charter ; but it appears from the transcript that the appeal was perfected within the time granted by the trial court and that compliance with other provisions is sufficient to justify overruling such motion in this case.

Appellant contends that under its constitutional charter it “has broad powers of eminent domain and may exercise same to take the railroad right-of-way described by its ordinance 26364.”

Kansas City has the power “to exercise the right of eminent domain and to condemn property, real or personal, or any right, interest, easement, restriction or use therein, within or without the City or state for any public or municipal use or purpose,” Article I, Section 1(9), Kansas City, Missouri, Charter, 1956, and such provision has the force and effect of an act of the legislature so long as it is consistent with the constitution and laws of the state, Giers Imp. Corp. v. Investment Service, Mo., 235 S.W. 2d 355, 358[3]; Kansas City v. J. I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W. 2d 195, 202[6]; State ex rel. Kansas City v. Lucas, Mo., 296 S.W. 781, 784[1]; Brunn v. Kansas City, 216 Mo. 108, 115 S.W. 446; State ex rel. Graham v. Seehorn, 246 Mo. 541, 151 S.W. 716; Turner v. Kansas City, 354 Mo. 857, 191 S.W.2d 612, 616(4]; Kansas City v. Liebi, 298 Mo. 569, 252 S.W. 404, 28 A.L.R. 295.

Appellant does not contend that it has express authority to condemn a railroad right of way longitudinally, but argues that its power to take “any property for public or municipal use is unlimited.” In making the argument appellant recognizes the exception when the condemnor seeks “to devote same to a conflicting or inconsistent use.” The general rule is stated in 29A C.J.S. Eminent Domain, § 74, page 326: “ * * * property alreadiy devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient,” and this rule has been held to apply except “where the power of eminent domain is being exercised by the sovereign itself, such as the state or federal government, * * * rather than by a * * * municipality.” State ex rel. State Highway Commission v. Hoester, Mo., 362 S.W.2d 519, 522 [2,3]. The rule has been applied in respect to taking a railroad for a street, e. g., “ * * * a power to appropriate the property of the railroad in such a manner as to destroy or greatly injure its franchise, or render it impossible or very difficult to prosecute the object of the organization,” could not be inferred. City of Hannibal v. Hannibal & St. Joseph R.R. Co., 49 Mo. 480, 481. Other jurisdictions have also applied the rule: “The general rule is that a municipal corporation, under general authority to condemn land for public streets, has no power to lay a street longitudinally over ground legally acquired by a railway and occupied by it for its tracks and roadbed, although it may extend streets across such right of way”, Portland Ry., Light & Power Co. v. City of Portland, 9 Cir., 181 F. 632, 634; and “‘[ujnder a general authority to condemn lands for streets, a street may be laid out across a railroad, but not longitudinally on the railroad track. Under general laws, property cannot be taken, where the appropriation will destroy or impair the exercise of the franchise of another corporation, unless the power to take is given in express terms, or arises from a necessary implication. * * But under a general authority to lay out highways a part of the right of way of a railroad cannot be taken longitudinally;” Union Pac. Ry. Co. v. Kindred, 43 Kan. 134, 23 P. 112, 113. See also City of Moline v. Greene, 252 Ill. 475, 96 N.E. 911, 913[2], 37 L.R.A.,N.S., 104. The texts have also given expression to the general rule: “The rule is that where property is already devoted to one public use it cannot be taken for another public use, unless there is a statute which clearly authorizes such a taking,” 3 Elliott, Railroads, 3d Ed., § 1572, p. 383; “* * * a general authority to lay out streets will not authorize the municipal corporation to establish a street on the line located by the railroad company,” 1 Elliott, Roads and Streets, 4th Ed., § 247, p. 297; and “ * * * if a municipality merely seeks to extend a street over a railroad right of way * * *, it is well settled that the use is a consistent one and that the general power to condemn land for streets is sufficient to authorize the condemnation of so much of the right of way as is necessary for a crossing. On the other hand, if the extension of a street across a railroad track will preclude the railroad from using its tracks, or the two uses cannot coexist, or the use by the railroad company will be materially impaired or destroyed, a municipality cannot extend a street across railroad property in the absence of statutory authority expressly or by necessary implication granted. * * * where no special provision is made by statute for taking the land of a railroad company, a municipality cannot condemn for a street a strip of land on which the tracks of the railroad company were laid longitudinally, unless a joint use of the strip for street and railroad purposes simultaneously is contemplated,” 11 McQuillin, Municipal Corporations, 3d Ed.Rev., § 32.71, p. 432. The rule has also been applied in refusing to permit condemnation of property devoted to school uses for a highway under general powers of eminent domain. City of St. Louis v. Moore, 269 Mo. 430, 190 S.W. 867, 869; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050, 1055 [3]. Application of the rule and its exception as stated by McQuillin, supra, may be found in City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541, 545 [4], and City of Los Angeles v. Allen, 32 Cal.App. 553, 163 P. 697, 698, where the condemnor alleged in its petition that it did not seek to prevent or interrupt operation by the railway company on the land sought to be condemned. See also Portland Ry. Light & Power Co. v. City of Portland, supra, 181 F. l. c. 634[3], and Oregon Short Line R. Co. v. Postal Tel. Cable Co., 9 Cir., 111 F. 842, 846, stating that to authorize a second condemnation of properties already devoted to public use to a second use which is subversive of the first there must be specific legislative authority.

Kansas City does not possess any powers of the sovereign to enable it to condemn property already devoted to public use as can the State of Missouri, State v. Hoester, supra, and the United States, United States v. Carmack, 329 U.S. 230, 236, 67 S.Ct. 252, 91 L.Ed. 209; its charter provides only for a general right of condemnation, and it does not provide specifically for taking the easement of a railroad company. It is, therefore, subject to the general propositions previously stated.

This proceeding was begun by enactment and filing of appellant’s Ordinance 24408 which stated that the property to be taken was a railroad right of way held and used by a railroad with right to continue its operation being reserved to the railroad. However, this ordinance (and pleading) was amended by enactment and filing of Ordinance 26364 and by its clear and unequivocal language, the railroad reservation is deleted and it is absolutely deprived of its easement and the use of it. The description of the land to be taken for street purposes is coextensive with the longitudinal railroad right of way, and “[t]here is no exception, reservation, or proviso by which the company is to be permitted to use the street or any part thereof for railway purposes. Under the proceedings, if carried into effect, the control and supervision of the entire street will belong exclusively to the city with the right to prevent its obstruction or use by the (railroad), and the (railroad) will be deprived of any right to use or enjoy the street or to maintain its tracks thereon or to operate its cars there-over.” Portland Ry., Light & Power Co. v. City of Portland, supra, 181 F. l. c. 634. Certainly the effect of the stated taking would be inconsistent with and in conflict with continued use of the land by the railroad; the taking would materially impair, injure, and interfere with such use; there is no provision for joint or shared use of the land for street and railroad purposes simultaneously, and Kansas City does not have the power, absent consent of all interested parties, either expressly or impliedly, to exercise its right of eminent domain to that extent.

Appellant states in its brief that it “does not seek to destroy the existing public use” and that it intends simply to adapt a “highway” to vehicular traffic instead of rail traffic, Kansas City Terminal Railway Co. v. Kansas City Transit, Inc., Mo., 359 S.W.2d 698, suggesting an existence together such as a railroad track in a city alley, Brown v. Chicago Great Western Ry., 137 Mo. 529, 38 S.W. 1099; but, admittedly, and as previously demonstrated, no such statement, intention, covenant, or reservation is contained in the ordinance seeking to condemn the railroad right of way. If appellant intended to provide for uses other than as described in the ordinance of taking, such uses should have been spelled out in the ordinance rather than to attempt to reserve them by testimony, agreements, and statements. Missouri Edison Co. v. Gamm, Mo.App., 379 S.W.2d 166, 170[8]; Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917, 918[3]; Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 481[2],

Appellant contends further, however, that its proceeding is not void for all purposes and that the rule against condemning a railroad right of way longitudinally should not be applied to this attempted taking by Kansas City because the respondent abutters, Aschman and Academy, et al., have no right to object to the taking in that “they have only a possibility of reverter,” and the only parties who could object, Ashleys, are estopped by entering into a contract to fix compensation for taking their interest.

The general rule is stated in 29A C.J.S. Eminent Domain § 95, pages 389, 390: “The owner of property to be taken or affected by the exercise of the power of eminent domain may raise the objection that the condemning corporation or body is exceeding its powers, but such objection cannot be raised by a third person not interested in the property. * * * Citizens and taxpayers may file objections to the taking of property already devoted to a public use.” See also Nichols, Eminent Domain, Section 46, page 446. Under the rule it is obvious that one who does not object cannot rely on objections made and abandoned by others, Kansas City v. Woerishoeffer, 249 Mo. 1, 155 S.W. 779, 783[2]; Kansas City v. Cain, Mo.App., 319 S.W.2d 266, 270[5, 6]; nor can one not otherwise entitled to object place himself in the shoes of one entitled to object who chooses not to do so, Everett W. Cox Co. v. State Highway Commission, 4 N.J.Misc. 510, 133 A. 419, 420; University City v. Chicago, R. I. & P. R. Co., 347 Mo. 814, 149 S.W.2d 321. Of course the owners of the property sought to be condemned can always object, and citizens and taxpayers have been recognized as proper parties to object where the property in question is already devoted to a public use. Carmack v. United States, 8 Cir., 135 F.2d 196, 199[1]; United States v. Carmack, supra; City of Moline v. Greene, supra, 96 N.E. l. c. 913 [3].

Appellant says that Aschmans and Academy, et al., the abutting owners, have “only a possibility of reverter” and that their interest is too remote for their objections to be heard. People of Puerto Rico v. United States, 1 Cir., 132 F.2d 220, 221-222[1-3] ; Chandler v. Jamaica Pond Aqueduct Corp., 125 Mass. 544, 547; State ex rel. Sayers v. School Dist., 79 Mo.App. 103. Appellant also cites Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286, which is not in point because “ * * * plaintiff (did) not seek to condemn rights in any land owned by them. Intervenors do not even claim an easement in the lands described in the petition for condemnation.” 296 S.W.2d l. c. 102[3].

The status of Aschmans and Academy, et al., as the owners of property abutting the railroad right of way sought to be condemned by Kansas City was fixed in Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 136 A.L.R. 286, where it was contended that such owners had but a possibility of reverter. “The law is settled in this state that where a railroad acquires a right of way whether by condemnation, by voluntary grant or by a conveyance in fee upon a valuable consideration the railroad takes but a mere easement over the land and not the fee”, 152 S.W.2d l. c. 652 [1-3]; and since an easement only is received by a railroad company “the land goes back to the original owner, or his grantees, freed from the public use or easement” in the event the easement is abandoned for railroad purposes, 152 S.W.2d l. c. 654-655 [14]. “It is a primary rule that in the grant of an easement no title passes but the title rests and continues in the holder of the servient estate so that when the estate ceases there can be no such thing as a reversion of title. In such an event the servient estate is merely freed from the burden of the use and any reversion is merely that of the use.

“We find that the term ‘revert’ in its technical sense was inappropriately employed as far back as Kellogg v. Malin, 50 Mo. 496, 11 Am.Rep. 426 which seems to have been the source of the inaccuracy in this State. * * *

“The court clearly intended by the employment of such term that the use of the land, upon abandonment of the easement, was turned back to the owner of the soil freed from the exclusive possession of the railroad. * * * It is clear * * * the use of the word ‘revert’ was not in relation to title, nor by so using it intended to imply that anything more than an easement was involved.” 152 S.W.2d l. c. 655[16]. See also State ex rel. Highway Comm. v. Jacob, Mo., 260 S.W.2d 22, 24[1]; Bray v. St. Louis-San Francisco Ry. Co., Mo., 310 S.W.2d 822, 824; Hennick v. Kansas City Southern Ry. Co., 364 Mo. 883, 269 S.W.2d 646, 648[1]; and if a railroad easement is to be disposed of it “could only (be) disposed of to another railroad corporation for those uses, and those alone, for which the original grant was made. The attempt to divert the subject of the grant to other purposes would result in reversion to the last owner of the premises”, Chouteau v. Missouri Pac. Ry. Co., 122 Mo. 375, 22 S.W. 458, 460, 461.

Several cases have recognized the - right to object to a diversion of, or an additional burdening of the public use easement to exist in persons in the circumstances of the abutters here. The situation was aptly described in St. Louis, I. M. & S. Ry. Co. v. Cape Girardeau Bell Tel. Co., 134 Mo.App. 406, 114 S.W. 586, 588: “There is still another class of cases in some respects resembling the one now under consideration. In this class the railroad right of way consists of an easement only, as here, the fee thereto residing in the adjacent landowner, and the telegraph is constructed thereon under a contract with the railroad company for the purpose of serving the railroad in its operations; but for the purpose, as well, on the part of the telegraph company, to serve the general public as a commercial enterprise. Under such circumstances, where the adjacent owner of the fee has asserted a right, it is declared that, in so far as the telegraph company serves the purpose of the railroad, its occupancy of the right of way easement is not an additional servitude or burden upon the fee of which he may complain. The right of the adjacent fee owner is precluded on the theory that such use is a legitimate development for railroad purposes essentially contemplated in the grant of the easement and for which he received compensation at the time. Nevertheless, in so far as the telegraph or telephone company thus rightfully occupying the right of way serves the general public as a commercial enterprise, distinct from the avocation of the railroad, it constitutes a use of the right of way easement other than for railroad purposes, and it is therefore a servitude not contemplated in the original grant and a burden upon the fee of which the adjacent owner may rightfully complain.” The foregoing quotation was relied upon in Eureka Real Est. & Inv. Co. v. Southern Real Est. & Financial Co., 355 Mo. 1199, 200 S.W.2d 328, 332 [8], in preventing a similar additional servitude and interest in land not contemplated in the grant of the easement. See also Muncie Electric Light Co. v. Joliff, 59 Ind.App. 349, 109 N.E. 433; State ex rel. Northern Pac. Ry. Co. v. Superior Court, 136 Wash. 87, 238 P. 985, 986-987[1,2], In Board Regents Normal School Dist. No. 3 v. Painter, 102 Mo. 464, 14 S.W. 938, 10 L.R.A. 493, defendant’s predecessor in title conveyed land to the inhabitants of Cape Girardeau for establishment of a public school and defendant was permitted to defend (successfully) against the attempt of plaintiff under deed from the city to divert the use of the property for the very similar use as a normal school. Similarly, in Carmack v. United States, supra, and United States v. Carmack, supra, the federal government sought to condemn land donated to Cape Girardeau “for the convenience and encouragement of the inhabitants * * * and owners of lots in and near the same,” and a direct heir of the original owner-donor, who was also a lot owner and taxpayer, was held entitled to object to a taking of the land for a purpose destructive of the use for which it was dedicated. And abutting owners may insist “that their land continue to be used for legitimate railroad right-of-way purposes.” Hennick v. Kansas City Southern Ry. Co., supra, 269 S.W.2d l. c. 652[15, 16]. Under these authorities Aschmans and Academy, et al., abutting property owners, have the necessary interest to entitle them to object to the railroad easement being taken for purposes which, from the description of use in the ordinance of taking, would be destructive of and inconsistent with the purpose originally contemplated by the grant of the railroad easement. To hold otherwise and deny them the right to object and be heard in these circumstances would be illogical.

Appellant suggests that University City v. Chicago, R. I. & P. R. Co., supra, stands for the proposition that abutting owners have no right to complain of this condemnation. In that case University City sought to condemn a railroad right of way for street purposes and the railroad, the abutting owners, and the heirs of the grantor of the easement were joined as defendants. However, in contrast to Kansas City’s attempted taking, the abutters either failed to object or waived their objections by accepting an award of damages, and the railroad consented to the taking and agreed to accept a certain sum as damages. Only the heirs made any objection and, since the fee interest in a railroad easement is in successive abutting owners as previously demonstrated, rather than in heirs of the original grantor, they properly were held to have no standing in which to object. The questions presented by Kansas City’s attempted taking were never reached. 149 S.W.2d l. c. 323[1], So it is that the case also recognizes the standing of abutting owners to object to a longitudinal condemnation of a railroad easement but they chose there not to exercise the right.

Since the abutters have the necessary standing to object successfully to this attempted condemnation, it is unnecessary to discuss whether Ashleys are estopped to object and whether Aschmans have any additional rights by virtue of their alleged way of necessity across the railroad easement. It is also unnecessary to go into matters of abandonment or those related to the authority of the Interstate Commerce Commission and the Missouri Public Service Commission.

The judgment of dismissal is affirmed.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

HOLMAN, P. J., HYDE, J., and WOLFE, Special Judge, concur.

HENLEY, J., not sitting.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Paul Franklin WOODS, Appellant.
    No. 51894.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      J. Whitfield Moody, J. Arnot Hill, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Anthony J. Miceli, Sp. Ass’t. Atty. Gen., Kansas City, for respondent.
   DONNELLY, Judge.

Appellant, Paul Franklin Woods, was convicted of burglary in the second degree under § 560.070, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of five years. By amended information he was charged with burglary in the second degree and stealing (§§ 560.070, 560.156 and 560.110, RSMo 1959, V.A.M.S.), and under the Habitual Criminal Act, supra. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. However, a brief summary is in order. John Joseph Ruby was the owner and operator of the Summit Buffet, 721 West 16th Street, Kansas City, Jackson County, Missouri. On June 19, 1965, he closed the Summit Buffet at about 1:35 a. m. When he left there were no broken windows in the premises and there was approximately $40 in the cash register. He was subsequently called, returned to the Summit Buffet, found a window broken, a rock in the middle of the floor, and that money had been taken from the cash register. Three partial fingerprints were “lifted” from the surface of the glass from the broken window and two of them were found to be identical with two of appellant’s fingerprints.

Marcia Lorraine Rorrer, age 13, who lived with her father in an apartment over the Summit Buffet, testified that between 1:30 and 2:00 a. m., June 19, 1965, she observed appellant “bust” out a window at the Summit Buffet with a rock, “bust” out more glass with a stick, crawl in the window, stay inside for “around ten or five minutes,” come back out the window, drop and pick up some coins, and leave. She identified appellant at the police station and at the trial.

The trial court instructed the jury as to both burglary in the second degree and stealing. The jury found appellant guilty of burglary in the second degree and not guilty of stealing. It is evident that the evidence was ample to sustain the conviction.

Appellant asserts that the trial court erred in failing to instruct the jury as to the crime of stealing less than Fifty Dollars. Section 560.161, RSMo 1959, V.A.M.S. The jury found appellant guilty of burglary in the second degree but not guilty of stealing. Appellant was not prejudiced by the trial court’s failure to instruct the jury as to the crime of stealing less than Fifty Dollars and no error was committed. State v. Person, et al., 234 Mo. 262, 136 S.W. 296, 297.

Appellant complains of a portion of the assistant prosecuting attorney’s argument to the jury. The argument complained of is as follows: “ * * * I interpret the evidence favorably toward the State, admittedly, partly because I am a representative of the State, but more importantly because I believe the evidence. I believe this man did, in fact, break into—

“MR. HILL: May it please the Court, I want to object to the prosecutor stating his personal belief.
“THE COURT: Sustained.
“MR. GALLIPEAU: Excuse me, Your Honor.
“MR. HILL: I further move the jury be discharged and a mistrial declared.
“THE COURT: Overruled.”

Defendant cites State v. Cole, Mo. Sup., 252 S.W. 698; State v. Goodwin, Mo. Sup., 217 S.W. 264; State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120 and State v. Pope, 338 Mo. 919, 92 S.W.2d 904. These cases all hold “that it is improper for a prosecuting attorney to express to the jury in argument his belief of the defendant’s guilt in such way that it implies knowledge on his part of facts not in evidence pointing to the defendant’s guilt.” State v. Lenzner, 338 Mo. 903, 905-906, 92 S.W.2d 895, l. c. 896. That rule has no application here. Statements by a prosecuting attorney in argument indicating his opinion that the accused is guilty, where it is apparent that such opinion is based on the evidence in the case, are permissible. It is apparent that the opinion of the assistant prosecuting attorney was based solely on the evidence. There is no merit in appellant’s contention. State v. Stokes, Mo.Sup., 387 S.W.2d 518, 520-521; State v. Reppley, 278 Mo. 333, 213 S.W. 477, 480; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, 784; State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670, 673; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881, 23A C.J.S. Criminal Law § 1104; and 50 A.L.R.2d 766.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author:
JOHN J. WOLFE, Special Judge.
      PER CURIAM.

text:
    David DONNELLY, Administrator with the Will Annexed of the Estate of Bessie Irene Egan, Deceased, and Ione Scott, Plaintiffs-Respondents, v. Horace T. ROBINSON, Administrator of the Estate of James Egan, Deceased et al., Defendants-Respondents, Melford Egan and Alberta Egan, Intervenors-Appellants.
    No. 51533.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Cohn & Lentz, Waynesville, by Mr. Arthur B. Cohn, for intervenors-appellants.
    Francis A. Casserly, Paul S. Brown, St. Louis, Claude T. Wood, Richland, Donnelly & Donnelly, David Donnelly, Lebanon, for respondents.
   JOHN J. WOLFE, Special Judge.

This is an action for a declaratory judgment brought by the administrator of the estate of Bessie Irene Egan, deceased, to determine the right of her estate to $15,250. This amount was one-half of a sum paid by the Missouri State Highway Commission for land in which Bessie Egan and her husband, James Egan, held a life estate. The administrator of the estate of James Egan, also deceased, was named as defendant together with certain known and unknown heirs. Melford and Alberta Egan, his wife, intervened in the action asserting a right to the $15,250. The court found against the intervenors and held that the sum in dispute belonged to the estates of Bessie Irene Egan and James Egan. The intervenors prosecute this appeal.

Bessie and James Egan died simultaneously in an automobile accident on October 25, 1960. Bessie left a will which was probated and David Donnelly was appointed administrator of her estate. James Egan died intestate and Horace T. Robinson was appointed administrator of his estate.

Early in 1960 there was pending in the Circuit Court of Pulaski County, Missouri, a suit in which James and Bessie Egan were the plaintiffs and Melford and Alberta Egan, the intervenors here, were the defendants. That suit concerned title to the land later acquired by the Missouri State Highway Commission and here involved. It was settled by an agreement between the parties. A stipulation was filed and a judgment entered in accordance with the stipulation. The judgment provided that James Egan and Bessie Egan, his wife, had an estate for and during their natural life and for and during the natural life of the survivor of them with the remainder in fee to Melford Egan, intervenor here, upon the death of the survivor. The judgment also carried another provision contained in the stipulation which stated:

“ * * * Provided, however, that in the event said real property and improvements described above should be acquired for public use by condemnation under the right of eminent domain, or in the event that said life tenants and the remainder-man should voluntarily agree to the sale of said real property and improvements and should sell the same during the lifetime of the said James Egan and Bessie Egan, his wife, or the survivor of them, one-half of the net proceeds of the sale of said property shall be paid to defendant Melford Egan and one-half of said net proceeds shall be paid to James Egan and Bessie Egan, his wife, or the survivor of them, and the amounts so paid to said remainderman and to said life tenants shall be their property absolutely.”

The judgment also provided that deeds and documents necessary to effectuate it should be executed and exchanged between the parties. This was done and a life estate was deeded to James Egan and Bessie Egan by Melford Egan and Alberta Egan, his wife. The deed contained the same provision as the judgment in relation to the division of money received for the property if it was taken by eminent domain or voluntarily sold for highway purposes.

On October 4, 1960, the Right-of-Way Agent approached James and Bessie Egan and Melford and Alberta Egan about purchasing the land to which title had been adjudged as above stated. On October 5, an agreement having been reached, a deed conveying the land to the State Highway Commission for the sum of $30,500 was signed and acknowledged by all four of the Egans. It was at their request left with the Wayne County Bank to be held in escrow by the bank until the check for the purchase price was received from the State Highway Commission. The check went through the usual processing of the Highway Commission and was paid on November 29, 1960. After the signing of the deed and turning it over to the bank James and Bessie Egan suffered the fatal automobile accident mentioned. As stated, that occurred on October 25, slightly over a month before the check for $30,500 was paid.

The sum paid by the Highway Department was divided between the parties, by the administrators of the estates of the two decedents taking half ($15,250) and Mel-ford and Alberta Egan, intervenors here, taking a like sum.

This suit followed to determine the rights of the parties to the amount paid to the administrators of the estates of James Egan and his wife Bessie Egan. Inter-venors Melford and Alberta Egan claimed that the whole amount paid by the state belonged to them. They contended that the sale was not made prior to the death of the life tenants because the payment was not made by the state prior to their deaths. They maintained that they were the owners in fee at the time the sale was made and seek the $15,250 paid to the administrators. The court found the facts to be substantially as stated here and held that the $15,250 paid to the administrators properly belonged to the two estates.

In pressing their claim for the one-half of the purchase price paid to the administrators of the life tenants’ estates the appellants intervenors first assert that title had not passed to the State of Missouri at the time of James and Bessie Egan’s deaths because there was no delivery of the deed to the State of Missouri. Among other cases relating to delivery the appellants cite Klatt v. Wolff, Mo., 173 S.W.2d 933, in which this court restated the established rule that a deed to be operative as a transfer of ownership of land, must be delivered to the grantee or someone for him. In Harrison v. Edmonston, Mo., 248 S.W. 586, also cited, this court restated the necessity of delivery of a deed with the intention to part with control over it, in order to pass title.

The respondents do not question these rules but they rely, as the trial court did, upon the effect of the delivery of the fully executed deed dated October 5, 1966, to the Wayne County Bank. The bank was to deliver this deed to the Missouri Highway Department upon payment of the purchase price. The purchase money was paid; the deed delivered and the respondents contend that the trial court properly held that the date of the concluded transaction related back to the date of the deed and its delivery to the bank. After so holding the court logically divided the sum paid for the property in accordance with the interests of the grantors existing at the time of the execution and delivery to the bank.

The court invoked the rule that upon final delivery by a depository of a deed deposited in escrow the instrument will be treated as relating back to, and taking effect at the time of the original deposit in escrow. This shall apply even though one of the parties to the deed dies before the second delivery. This relation back doctrine has wide and general acceptance. Its roots are ancient for as far back as the Sixteenth Century we find the Perryman’s Case, 77 Eng.Rep. 181, l. c. 183, in which it was said:

“ * * * if a man delivers a writing (d) as an escrow to be his deed on certain conditions to be performed, and afterwards the obligor or obligee dies, and afterwards the condition is performed, the deed is good, for there was traditio inchoata in the life of the parties, sed postea consummata existens by the performance of the condition takes its effect by force of the first delivery, without any new delivery * *

The same doctrine was pronounced by this court in Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, l. c. 570, wherein it was said:

“ * * * The relation of vendor and purchaser exists as soon as a contract for the sale and purchase of land is entered into. Equity . regards the purchaser as the owner and the vendor as holding the legal title in trust for him: * * *. This equitable principle may be invoked in actions at law: * * * and that even though the purchaser has not been put in possession: * * *.”

Hernandez v. Prieto, 349 Mo. 658, 162 S.W.2d 829; Seibel v. Higham, 216 Mo. 121, 115 S.W. 987; Schooler v. Schooler, 258 Mo. 83, 167 S.W. 444; 19 Am.Jur., Escrow, §§ 26 and 27; 117 A.L.R. 69, 70. There are also numerous cases in which the rule is applied to deeds given to one other than the grantee to be unconditionally delivered to the grantee upon the grantor’s death. Haer v. Christmas, Mo., 312 S.W. 2d 66; Meredith v. Meredith, 287 Mo. 250, 229 S.W. 179; Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22.

Appellants concede that the “relation back doctrine” is a recognized rule in Missouri but contend that it should only be used for the protection of the buyer. They assert that upon the death of the life tenants they as remaindermen held title and the life tenants had nothing to convey, citing Bullock v. Porter, 365 Mo. 572, 284 S.W.2d 598. That case had nothing to do with the theory here under consideration, but appellants cite it as authority for the proposition that their signatures on the deed were sufficient to pass title upon the death of the life tenants and that there is no need to employ the relation back rule to protect the buyer.

As stated in Savings Trust Co. of St. Louis v. Skain, above quoted, the doctrine is an equitable principle. So we weigh the equities here presented. All four of the Egans had been in litigation over the title to the land conveyed. They had settled the litigation, as stated, by stipulation, judgment and deeds. All of these took into consideration the impending condemnation or sale of the land for highway purposes and the compensation that was to be derived from the sale or condemnation. This is apparent throughout the case. When the anticipated time came the deal was closed with the state. When James and Bessie Egan signed the deed with Melford and Alberta Egan all parties disposed of their interest in one deed with full agreement and knowledge of what each would receive. For them it was a completed transaction. It therefore appears that the application of the doctrine of relation back to these facts is within the intended use of the doctrine as an equitable means to effectuate the intent of the parties.

The trial court did not err in so holding and the judgment is affirmed.

PER CURIAM.

The foregoing opinion by WOLFE, Special Judge, is adopted as the opinion of the Court.

HOLMAN, P. J., and HYDE, J., concur.

HENLEY, J., not sitting.


text:
    John TALLANT et al., d/b/a Tallant and Company, Plaintiffs-Respondents, v. W. A. HAMILTON et al., Defendants-Appellants.
    No. 51674.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Rehearing Denied Oct. 10, 1966.
    Daniel, Raskas & Ruthmeyer, H. Jackson Daniel, St. Louis, for plaintiffs-respondents.
    Northern & Crow, Rolla, for defendants-appellants.
   DONNELLY, Judge.

This suit for an accounting was instituted in the Circuit Court of Pulaski County, Missouri, by John Tallant and his four sons, Lewis, Charles, Leasle and Billie, against defendants, W. A. Hamilton and his two sons, Doyle and Glenn. An accounting was agreed to by the parties and by their consent was referred to a referee who found plaintiffs entitled to receive from defendants the sum of $21,258.91. Upon exceptions the circuit court approved the report of the referee and entered judgment for plaintiffs and against defendants for $21,258.91. Defendants perfected their appeal to this Court.

We will refer to plaintiffs as the “Tal-lants” and to defendants as the “Hamil-tons.” The Tallants were co-partners during the period 1952 to 1960, engaged in the business of buying and selling new and used automobiles, trucks, trailers and tractors. The Hamiltons were, during said period of time, engaged in the business of financing the sales and purchases of new and used automobiles, trucks, trailers and tractors. During this period the Tallants bought and sold new and used automobiles, trucks, trailers and tractors, and a majority of such sales were made on an installment plan, whereby the purchasers delivered to the Tallants, as part of the purchase price, their promissory notes secured by separate chattel mortgages on the vehicles sold. As the Tallants sold motor vehicles and received promissory notes, secured by chattel mortgages, they sold or discounted to the Hamiltons the promissory notes and chattel mortgages of their customers and guaranteed payment.

In addition to the notes of the Tallants’ customers, which were sold or discounted to the Hamiltons, the Tallants borrowed money from the Hamiltons in order to acquire vehicles for sale purposes and executed their promissory notes, secured by chattel mortgages on such vehicles, to cover such loans. They paid off such obligations at the time the vehicles in question were sold. This practice of borrowing money on vehicles purchased by the Tallants for resale was known as “floor planning.”

In addition to the percentage of discount at which promissory notes and chattel mortgages were sold and discounted to them, the Hamiltons retained a sum of money as a reserve against credit losses that might, from time to time, be suffered as the result of any defaults in the payment of the promissory notes and chattel mortgages by the individual makers thereof and as a reserve against losses resulting from repossession of vehicles. This reserve was known as the “dealer’s reserve.”

This business arrangement between the parties continued for several years. On or about September 4,1959, the Tallants ceased to do business with the Hamiltons and after that date they sold or discounted no more “paper” to the Hamiltons. On or about September 9, 1959, the Hamiltons initiated replevin actions whereby they obtained possession of the 14 vehicles upon which they then held chattel mortgages under the “floor plan.” Between the months of September, 1959, and June, 1960, the Hamil-tons repossessed 33 vehicles under chattel mortgages securing promissory notes of the Tallants’ customers, which notes had been sold or discounted by the Tallants to the Hamiltons. All of these vehicles were sold by the Hamiltons during the period between November, 1959, and August, 1960. It is agreed and stipulated by the parties that the “dealer’s reserve” now held by the Hamil-tons amounts to $29,275.06.

It is our duty to review the case upon both the law and the evidence as in actions of an equitable nature. Novak v. Baumann, Mo.Sup., 329 S.W.2d 732; Hogan v. Krohn, Mo.Sup., 318 S.W.2d 163; Baerveldt & Honig Const. Co. v. Dye Candy Co., 357 Mo. 1072, 212 S.W.2d 65. We review the action de novo on the record and we must make our own findings of fact, draw our own conclusions of law, and enter or direct the entry of the judgment thus indicated, giving due deference to the referee on matters of conflicting evidence. Watkins v. Watkins, Mo.Sup., 397 S.W.2d 603, 609.

The referee found, and we hold, that the Hamiltons are entitled to retain from the “dealer’s reserve” the difference between the amount the Tallants owed them on the notes and the value of the vehicles repossessed, less the cost of repossession. The basic dispute between the parties involves a determination of the value of the vehicles repossessed. The Hamiltons contend that the value of the vehicles repossessed was the total amount received by them from sales after repossession, and that, under Universal C. I. T. Credit Corp. v. Byers, Mo.App., 299 S.W.2d 559, 562, the Tallants did not sustain the burden of proof to show that the Hamiltons “failed to act in good faith and did not use every reasonable means to obtain the full value of the mortgaged property.” The referee found that the agreement of the parties, as to the “dealer’s reserve,” was that the value of the repossessed vehicles should be determined as of the time of repossession and, in effect, that the Byers case, supra, does not rule the question. We agree.

There was evidence adduced as to “average retail market value” of the types of vehicles involved as stated in the Red Book, National Market Reports, Incorporated, for the period of September, 1959. The referee accepted such evidence as to value of each repossessed vehicle. Such evidence, when proper foundation is laid, is admissible. Baker v. Atkins, Mo.App., 258 S.W.2d 16, 20, 21, and cases cited therein. However, this evidence did not take into consideration the mechanical condition of a great number of the vehicles when the Hamiltons took possession. We have reviewed the entire record and make our own findings of fact.

There were 14 “floor plan” vehicles repossessed by the Hamiltons. The total principal amount due on the notes covering such vehicles was $6,363.00, plus interest in the amount of $736.61, making a total amount due of $7,099.61. The total expenses of repossessions were $160.24. Therefore, the Hamiltons were entitled to receive on such “floor plan” vehicles the sum of $7,259.85. We find that the Hamil-tons received vehicles of a value of $6,395.-00. Subtracting the amount of the value of such vehicles from the total amount due under the notes, including the expenses of repossessions, we find that the Hamiltons are entitled to $864.85 from the “dealer’s reserve” for “floor plan” vehicles.

There were 33 vehicles repossessed by the Hamiltons under the “customer contracts.” The total amount due on the notes covering such vehicles was $41,091.42. The total amount of expenses for such repossessions was $2,136.03. Therefore, the Hamiltons were entitled to receive on such “customer contract” vehicles the sum of $43,227.45. The Hamiltons received $998.66 on such notes after the vehicles in question were repossessed. We also find that the Hamiltons received vehicles on repossession of a value of $25,535.64. Therefore, the Hamiltons received property, money and vehicles, of a total amount of $26,534.30. It is our finding that the Hamiltons are entitled to $16,-693.15 from the “dealer’s reserve” for “customer contract” vehicles.

There were 16 customer accounts where the balance due is unpaid and there were no repossessions because the whereabouts of customers and vehicles are unknown to the parties. The total amount due on such notes is $7,151.30. It is our finding that the Hamiltons are entitled to $7,151.30 from the “dealer’s reserve” on these vehicles.

Based on the evidence, it is our conclusion that of the total amount of $29,275.06 in “dealer’s reserve” the Hamiltons are entitled to $24,709.30, and the Tallants are entitled to $4,565.76.

The judgment is reversed and the cause remanded with directions that judgment be entered for plaintiffs in the amount of $4,565.76, costs to be taxed equally between the parties.

All concur.


author: BARRETT, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Edwin Thomas BARRETT, Appellant.
    No. 51305.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Robert B. Curtis, Special Asst. Atty. Gen., St. Louis, for respondent.
    Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   BARRETT, Commissioner.

Upon a charge of robbery in the first degree with a dangerous and deadly weapon, a revolver, the appellant was found guilty and a jury assessed the minimum punishment of five years’ imprisonment. RSMo 1959, § 560.135.

The court appointed two lawyers to represent the appellant but he insisted upon trying his own case, his lawyers being restricted to an area back of the bar and employed but occasionally by way of consultation. Upon this appeal the appellant is represented by a third lawyer who has briefed and argued three points, none of which were set forth in his motion for a new trial. Some of the matters, however, may appear “upon the record before” the court and therefore may be considered. Criminal Rule 28.02, V.A.M.R.

As stated, the appellant was charged with robbery in the first degree with a dangerous and deadly weapon, an offense punishable by death (RSMo 1959, § 560-135), and since the offense and trial were both in Jackson County in the normal course of events the appellant would have been entitled to a panel of forty-seven jurors and twenty peremptory challenges rather than a panel of thirty-four jurors. RSMo 1959, § 546.180. The appellant contends, because the offense was punishable by death, that he is entitled to a new trial because a panel of forty-seven jurors was not called. However, when this question arose as the jury panel was being called the state specifically waived the death penalty. Unlike murder in the first degree (RSMo 1959, § 559.030, State v. Tillett, Mo., 233 S.W.2d 690) life imprisonment or death are not the only penalties for first degree robbery, the minimum punishment for first degree robbery is five years’ imprisonment (RSMo 1959, § 560.135) and thus this case is unlike State v. Kinne, Mo., 372 S.W.2d 62, in which the jury had a choice of only life imprisonment or death. State v. Redding, Mo., 357 S.W.2d 103. The state having waived the death penalty there was no necessity for a panel of forty-seven jurors and the appellant’s assignment of error in this respect is without merit. State v. Redding, supra; State v. Burnett, 357 Mo. 106, 206 S.W.2d 345.

Another matter urged by counsel is that in violation of the constitutional safeguards to “a speedy and public trial by an impartial jury” (Sixth Amend. Const.U.S.; Art. I, Sec. 18(a) Const, of Mo., V.A.M.S.) his case was continued more than two terms while he was in custody (RSMo 1959, §§ 478.247 ; 545.890-545.910) and therefore he is now entitled to a new trial. The difficulty with this position is that it is refuted by the necessary factual basis, the appellant was arraigned on January 13, 1964, at the January 1964 term of court, the defendant then declined counsel, entered a plea of not guilty, and the cause was continued for the term and set on March 9, 1964. On that date, March 9, 1964, the cause was reset for April 6, 1964, and when the case was called on the latter date the record recites that “Now on this day at the request of the defendant, it is ordered by the Court that the following * * * causes be continued for the term and set on the 1st day of May 1964,” the first day of the May term. On May 5,1964, appellant’s first lawyer was appointed and the case set for trial on June 15. The next record entry, June 22, 1964, is that “Now on this day at the request of the defendant the cause was continued to September 14, 1964, the first day of the September term. On August 6, 1964, his newly appointed counsel asked for a mental examination which was ordered and the case again set for October 13, 1964. On October 26 appellant moved to dismiss the cause for lack of counsel, the case was reset for November 9 but, again, on November 2 the record recites that “on this day at the request of the defendant” the cause was “continued for the term” and again reset for November 16, 1964, on which date the trial was begun.

The purpose of the statute against continuances while a defendant is in custody is not only to secure a speedy trial but to prevent laches on the part of the state (State v. Woods, 346 Mo. 538, 142 S.W.2d 87), and the right to a discharge if the statute is not observed is not jurisdictional, it is a privilege and may be waived if not invoked at the proper time in an appropriate manner before trial. Osborne v. Owsley, Mo.App., 257 S.W.2d 691. In the second place, the record here affirmatively shows that the appellant sought or by his own conduct caused the continuances and of course is in no position to now complain. State v. Werbin, Mo., 345 S.W.2d 103; State v. Nelson, Mo., 279 S.W. 401.

Another matter not set forth in his motion for a new trial is the briefed assertion that the court erred in failing to supply the appellant with “a transcript of testimony prior to time for filing motion for new trial” which he says is a denial of due process and of equal protection. In the first place, at a charge of $337.50 a free transcript of 442 pages covering everything that occurred in the trial of the cause was prepared and made available to appellant’s counsel who briefed and argued his cause. In the second place, it is nowhere pointed out just what would or could have been raised had a transcript been made available before the filing of his motion for a new trial. In short, he asserts the bare right, there is no claim that he was prejudiced in any particular respect or that any rights have been infringed or denied because there was no transcript before the filing of the motion for a new trial. In furnishing the transcript now before the court Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and subsequent cases have been complied with and there has been no infringement of constitutional rights.

As stated the three matters above considered were not set forth in appellant’s motion for a new trial in connection with which there is another problem. Upon the appellant’s motion, after the jury verdict, for among other matters a transcript before filing a motion for a new trial and for which he asked sixty days’ time the court delivered to the appellant a memorandum in which on “its own motion” the court allowed the defendant thirty days in which to file a motion for a new trial. The memorandum recited that “the last day for filing such motion would be on December 18, 1964,” which of course was ten days less under the rules than the court could have granted. Criminal Rule 27.20. In any event the appellant’s motion for a new trial was not filed until December 24, 1964, which obviously was not timely. State v. Hamilton, Mo., 391 S.W.2d 872. However, even if it may be said that there was some ambiguity and the appellant was in fact given forty days in which to file his motion as in State v. Knicker, Mo., 364 S.W.2d 544, the only valid assignments in his motion for a new trial would have no merit because the one is unfounded and there “was substantial evidence to support a finding of defendant’s guilt as charged in the amended information” hence no merit in the assignments that there was insufficient evidence to support the conviction. State v. House, Mo., 349 S.W.2d 928, 929.

In brief the circumstances as they could reasonably be found by the jury were that Mr. and Mrs. Kenneth B. Carlson operated the Carlson Watch Repair and Jewelry at 1108 E. Armour. On September 14, 1963, about 5:50 in the afternoon the appellant walked into the jewelry store, pretended to look at a lighter case, and when Mrs. Carlson asked if she could help him, he asked for the “man that repairs lighters.” Mrs. Carlson pointed to her husband at his watch bench “and he pulled this gun, and he said, ‘This is a holdup.’ ” With the gun in Mrs. Carlson’s back he “walked” her over to her husband, tied her to a radiator with a rope, removed her husband’s crutches and tied him to a chair. In the meantime the appellant’s accomplice, a Negro, walked in, locked the door and pulled the blinds. The appellant and his accomplice took lighters, watches, a radio, three to four hundred dollars in cash and other property of a total value of $1500. Both Mr. and Mrs. Carlson identified the appellant at the trial, in a police “line up” and in photographs as their robber. Needless to say this evidence supports the charge and verdict of first degree robbery with a dangerous and deadly weapon. State v. Ray, Mo., 354 S.W.2d 840.

Surprisingly enough in view of his lack of respect for his three or four court-appointed lawyers and his insistence on trying his own case his other only valid assignment of error is that “Defendant was clearly prejudiced in that he conducted his own defense. Defendant is unqualified as a lawyer; was unable to adequately cross-examine witnesses; and was unable to present to the jury his side of the case due to his lack of legal training and general inability.” It might have been wiser to entirely rely on his lawyers but both the result, a minimum punishment of five years, and the record refute his claim of unfair prejudice by reason of his conducting his own defense. In any event, the appellant does not claim mental incompetency, he voluntarily and understanding^ made but partial use of his lawyers, the court took every precaution to safeguard his rights and in all these circumstances he may not be heard to complain of his own conduct. 23 C.J.S. Criminal Law §§ 979(3) (4), pp. 916-927; 21 Am.Jur.2d (Criminal Law) § 310, p. 335; State v. Slicker, Mo., 342 S.W. 2d 946; State v. Ingram, 316 Mo. 268, 289 S.W. 637; State v. Warren, Mo., 321 S.W.2d 705.

The information appropriately charged the offense of robbery in the first degree by means of a dangerous and deadly weapon (State v. Jarrett, Mo., 317 S.W.2d 368), the minimum punishment was assessed, there was allocution and the sentence and judgment are responsive to the verdict. Criminal Rules 27.08, 27.09. Since no prejudicial error is found or demonstrated upon the transcript the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Joseph WARREN, Jr., Appellant. Joseph WARREN, Jr., Petitioner, v. Edward E. HAYNES, Superintendent [of the Missouri Training Center for Men, at Moberly], Respondent.
    Nos. 51670, 51757, 52457.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Dewey S. Godfrey, Jr., St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Richard K. Wilson, Sp. Asst. Atty. Gen., Springfield, for respondent.
   HENLEY, Judge.

Defendant was found guilty of forcible rape (Section 559.260) by a jury in the circuit court of the City of St. Louis and sentenced by the court under the habitual criminal act (Section 556.280) to imprisonment for forty-five years. The judgment was affirmed on appeal. See: State v. Warren, Mo., 366 S.W.2d 311. He was represented by counsel of his own choice at the trial and on appeal.

Thereafter the defendant, pro se, filed a motion in the trial court pursuant to Rule 27.26 to vacate and set aside the above judgment and sentence. The motion was overruled without a hearing and defendant appealed, the appeal being docketed and assigned case number 51,670 in this court. Fifteen days after the above notice of appeal was filed in this court, defendant, by counsel, filed another motion in the trial court to vacate and set aside the same judgment and sentence. This motion was also overruled without a hearing and defendant appealed, the appeal being docketed and assigned case number 51,757 in this court. Case number 51,670 is treated as submitted and ordered consolidated with case number 51,757 for disposition of both appeals in one opinion.

While the above-numbered cases were pending on appeal, defendant, pro se, filed in this court on August 23, 1966, a motion for leave to file in forma pauperis a petition for writ of habeas corpus with his petition for the writ attached, the same being styled: Joseph Warren, Jr., petitioner, vs. Edward E. Haynes, Superintendent [of the Missouri Training Center for Men, at Moberly.] The motion and petition were assigned case number 52,457. Case number 51,757 having been previously assigned to Division One and set for argument for September 14, 1966, case number 52,457 was on September 12, assigned to the same Division and ordered consolidated with case number 51,757 for disposition.

We will dispose of case number 52,-457 first. Petitioner’s (defendant’s) motion for leave to file in forma pauperis his petition for writ of habeas corpus is sustained and the petition ordered filed. The petition alleges, in substance, that petitioner is unlawfully detained and deprived of his liberty, because: (1) the “statement of facts” in the brief of counsel for the state on the original appeal was erroneous and known by counsel to be false, thereby misleading this court; and (2) the evidence in that case was not sufficient to make a case for the jury. Obviously petitioner seeks to employ the writ as a means for a second appeal to review the sufficiency of the evidence. The writ may not be used for this purpose. Furthermore, petitioner inaccurately describes the state’s brief and its effect.

The writ of habeas corpus is denied.

Defendant’s motion in case number 51,670 alleges that the court erred: (1) In permitting a witness to testify that he recognized defendant at a police “show-up” as the same person he had previously seen at prosecutrix’s residence, because this witness’ identification of defendant at the “show-up” was after defendant had been detained more than twenty hours without a warrant; (2) In admitting in evidence a report of a medical examination of the prosecutrix; and, (3) In failing to call a panel of forty-seven veniremen. We will treat with the last allegation in our discussion of case number 51,757 where the same point is raised and briefed by defendant’s counsel. The fact that defendant was “identified” at the police station after he had been held more than twenty hours without a warrant does not, of itself alone, require the exclusion of evidence of such identification. This court has held that not even a confession is rendered involuntary, and therefore required to be excluded, merely because the confession was made after defendant had been held more than twenty hours without a warrant. State v. Bridges, Mo., 349 S.W.2d 214, 218 [3]; State v. Goacher, Mo., 376 S.W.2d 97, 103 [7]. Furthermore, this allegation and the next pertaining to alleged errors in the admission of evidence are purported trial errors that should have been raised and preserved for review on the original appeal. They do not state grounds for relief under Rule 27.26. State v. Hagedorn, Mo., 305 S.W.2d 700, 702 [3]; State v. Schaffer, Mo., 383 S.W.2d 698, 699 [1],

In case number 51,757, defendant’s counsel briefs one point: That defendant was denied due process because the court failed to call a panel of forty-seven jurors so that he might have twenty peremptory challenges afforded him by Section 546.180.

Paragraph 2 (subparagraphs (1) (a) and (2) (a)) of Section 546.180 requires a panel of forty-seven jurors in the City of St. Louis, where defendant was tried, “If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life * * Here, the offense is punishable with death or imprisonment in the penitentiary for not less than two years. Section 559.260. The transcript on appeal from the original judgment and sentence discloses that less than forty-seven jurors were called. Defendant relies on one case: State v. Kinne, Mo., 372 S.W.2d 62 [1], an original appeal from a conviction of first degree murder and a sentence of life imprisonment reversed and remanded for error in failing to call a panel of forty-seven jurors. In that case the state waived the death penalty and, over defendant's objection, the court called a panel of thiry-four jurors rather than forty-seven. In this case, we note that the transcript on appeal from the original judgment and sentence shows no objection to the calling of a panel of less than forty-seven jurors and that the motion for new trial does not assign, such failure as error. We note parenthetically that defendant’s brief on the original appeal did not raise this question.

The identical point under essentially the same facts was raised by a Rule 27.26 motion and ruled adversely to the defendant in State v. Cox, Mo., 392 S.W.2d 265, 266 [1]. The decision in that case controls the result in this.

The orders overruling defendant’s motions in cases numbered 51,670 and 51,757 are affirmed.

All concur.

      . References to statutes are to RSMo 1959 and V.A.M.S.

      . References to rules are to Rules of Criminal Procedure and V.A.M.R.


author: HOLMAN, Presiding Judge. HYDE, Judge

text:
    STATE of Missouri, Respondent, v. Leroy ADAMS, Appellant.
    No. 51964.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James A. Pudlowski, Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, Sloan Richard Wilson, The Legal Aid and Defender Society, Kansas City, for appellant.
   HOLMAN, Presiding Judge.

Defendant was charged with the offense of robbery in the first degree. See §§ 560.120 and 560.135 (all statutory references are to RSMo 1959, V.A.M.S.). The amended information also charged a prior felony conviction. The jury found defendant guilty as charged and the court fixed his punishment at imprisonment in the penitentiary for a term of five years. Defendant has appealed from the judgment.

The victim of the alleged robbery was one Wilbur Wilks. Wilks died shortly after the robbery. The transcript indicates that his death may have resulted from a heart attack rather than from blows struck by defendant.

Virginia Johnson testified that Wilks came to her home in Kansas City at about 7 a. m. on the morning of the robbery, and that defendant was also there and they were all drinking; that she had ordered some beer delivered to her home and defendant had seen the money in Wilks’ billfold when Wilks paid for the beer; that between 9 and 10 a. m., they started to the drug store in Wilbur’s car to get some cough syrup for her; that Wilbur was driving, she was in the back seat, and defendant was seated on the passenger side of the front seat; that after they had traveled about a half block defendant grabbed Wilbur and asked for his money; that Wilbur tried to turn off the ignition and opened the door of the car and tried to get out, but could not because defendant was holding him; that defendant stopped the car and started hitting Wilbur with his fist; that he took Wilbur’s billfold from his hip pocket and took all of the bills out of it. Mrs. Johnson further testified that she then jumped out of the car and ran back to her house; that defendant was not far behind her and had the money in his hand; that defendant told her he got $97 and he gave her $25 “to keep my mouth shut.”

Defendant and Mrs. Johnson were seen leaving the car by Willard Thompson who lived nearby. Thompson testified that the car was parked in the middle of the street with the door open on the driver’s side, and that there was a man seated in the front seat who appeared to be unconscious; that his wallet was lying on his lap. This witness called the police and later identified defendant and Mrs. Johnson as the persons he had seen leaving the car.

A patrolman who arrived at the scene at 9:48 a. m., found Wilks, apparently dead, seated behind the steering wheel with a billfold in his right hand.

Richard James, a police detective, testified that he interrogated the defendant at about 8:30 a. m. on the day following the robbery; that defendant told him that “he met Mr. Wilks at the home of Virginia Johnson at 3531 Wayne * * * at about 8 o’clock on the morning of the 19th and that they had drunk some beer together, and he wasn’t sure about the time but he said that about an hour after that, which would be around 9:00 or after, he and Mr. Wilks and Virginia Johnson got in Mr. Wilks’ car to go for a ride. He said that he asked Mr. Wilks to loan him five dollars, and when Mr. Wilks pulled out his billfold, while they were all in the car, he grabbed the billfold away from him and [that] Mr. Wilks tried to get the billfold back and they began to fight and that he hit him several times with his fist.” This witness further testified that defendant said that he had taken about $90 from Mr. Wilks’ billfold and had given Virginia Johnson $25 “to be quiet.” Defendant offered no evidence.

The main contention of defendant on this appeal is that the trial court erred in failing to give an instruction on stealing from the person. No request was made for such an instruction but if there was substantial evidence to support the submission of that offense the court was required to give such an instruction whether requested or not. State v. Herron, Mo.Sup., 349 S.W.2d 936; § 546.070(4).

There is no question but that the testimony of Virginia Johnson was sufficient to make a submissible case of robbery in the first degree. However, defendant says that the testimony of Detective James, in which he related the statment made by defendant, would have supported a submission of the offense of stealing; that if the jury believed that the offense occurred in the manner defendant said it did he could have been found guilty only of stealing because there was no “violence” to the person of Wilks or “putting him in fear” prior to or contemporaneous with the taking.

It is elementary that in order to constitute robbery in the first degree the property must be taken from the person robbed by violence to his person or by putting him in fear. It is well settled that the violence or fear must precede or be contemporaneous with the taking of the property, and the subsequent use of force or intimidation to prevent the retaking of the property by the victim will not convert the act of stealing into the offense of robbery. State v. Parker, 262 Mo. 169, 170 S.W. 1121, L.R.A. 1915C, 121. There is nothing in defendant’s version of the occurrence to indicate that the snatching of the billfold was accomplished by putting Wilks in fear. Therefore, the serious question for us to determine is whether the act of defendant in taking the billfold from Wilks’ hand constituted sufficient force or violence to warrant a conviction of robbery or whether that act merely constituted the offense of stealing.

“The rule prevailing in most jurisdictions is that the mere snatching or sudden taking of property from the person of another does not in itself involve such force, violence, or putting in fear as will constitute robbery * * *. The authorities are agreed that a sudden taking or snatching may be accompanied by sufficient force to constitute robbery. Thus, if a struggle immediately ensues to keep possession of the property and the thief overcomes the resistance, or the article snatched is so attached to the owner’s person as to afford resistance or injure the possessor in the taking, the violence is sufficient to constitute the act a robbery.” 46 Am.Jur., Robbery, § 21, p. 149.

In State v. Thompson, Mo.Sup., 238 S.W. 115, it was held that a submissible case of robbery was made where there was testimony that defendant grabbed a bag containing money which was held by a woman and that she tried to hold onto it but he wrenched the bag from her arm by force. Also, in State v. Broderick, 59 Mo. 318, there was held to be sufficient violence to support a conviction of robbery where defendant grabbed the watch chain of the victim with such violence as to break the chain and straighten out the hook which fastened it into a buttonhole. On the other hand, it is uniformly held that “taking valuables from another’s pocket surreptitiously or without using force or putting in fear is merely larceny, not robbery. This distinction was clearly explained by this court in the case of State v. Parker, 262 Mo. 169, l. c. 178, 170 S.W. 1121, L.R.A. 1915C, 121.” State v. Spivey, Mo.Sup., 204 S.W. 259, 261. In an early court of appeals case it was said that “it seems to be now held that sudden snatching of property from a person is not robbery, if there is no struggle and no injury done to the person robbed.” State v. Sommers, 12 Mo.App. 374, 376. In the case of Routt v. State, 61 Ark. 594, 34 S.W. 262, defendant asked one Holt for a loan of $10. When Holt took some bills from his pocket defendant snatched a $100 bill from his hand. A confederate took the bill and used a gun in making his escape. In holding that the facts did not constitute robbery the court stated: “It is well established that the snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it.” 34 S.W. 263. A rather exhaustive review of the “purse snatching” cases is contained in the opinion in State v. White, 326 Mo. 1000, 34 S.W.2d 79. In that case it was held that there was no submissible case of robbery in the first degree where the defendant snatched a purse from a young lady walking along the sidewalk.

We conclude from a consideration of the authorities cited that snatching a valuable article from another is robbery where force is exercised in overcoming the resistance of the person robbed or in detaching the article taken where it is fastened to the clothing or person of the victim, but that where the article is merely snatched from the hand of another the offense is stealing and not robbery.

In the case at bar it appears from the statement given by defendant to the officer that Wilks had no reason to expect the billfold to be snatched from his hands and hence offered no resistance and that defendant used a minimum amount of force in obtaining possession of the billfold. We have therefore concluded that such facts would support a submission of the offense of stealing. See §§ 560.156 and 560.161. We accordingly rule that the trial court erred in failing to give an instruction submitting the offense of stealing in addition to the instruction submitting the more serious offense of robbery in the first degree.

Other points briefed will not likely recur upon another trial and therefore need not be ruled.

The judgment is reversed and the cause remanded for a new trial.

HENLEY, J., concurs.

HYDE, J., dissents in separate opinion filed.

HYDE, Judge

(dissenting).

I respectfully dissent from the opinion of Holman, P. J., herein. I consider this to be a case of robbery by violence under Sec. 560.120 RSMo, V.A.M.S.

The opinion recognizes, as quoted from 46 Am.Jur. 149, Robbery, Sec. 21: “The authorities are agreed that a sudden taking or snatching may be accompanied by sufficient force to constitute robbery. Thus, if a struggle immediately ensues to keep possession of the property and the thief overcomes the resistance, or the article snatched is so attached to the owner’s person as to afford resistance or injure the possessor in the taking, the violence is sufficient to constitute the act a robbery.”

An immediately ensuing struggle to keep possession is exactly what happened in this case according to the statement of defendant relied on by the opinion as the basis for its holding that the taking was not by violence, namely: “He said that he asked Mr. Wilks to loan him five dollars, and when Mr. Wilks pulled out his billfold, while they were all in the car, he grabbed the billfold away from him and [that] Mr. Wilks tried to get the billfold back and they began to fight and that he hit him several times with his fist.”

All of this occurred in Wilks’ car with defendant in the front seat with Wilks. Defendant was not able to get out of the car with Wilks’ billfold, or even to get away from Wilks on the seat, until he had struck him several times with his fist so violently that Wilks died shortly afterward. Although Wilks’ death may have been due to a heart attack, this condition resulted from the violence used even though the blows would not have caused the death of one with a normal heart. This is far different from a snatch-and-run case like State v. White, 326 Mo. 1000, 34 S.W.2d 79. Here the snatching alone was not enough to enable defendant to get away with Wilks’ billfold and he had to use great violence to do so. I would affirm the judgment.