
    S. R. OWEN, Respondent, v. CITY OF SPRINGFIELD, Appellant.
    St. Louis Court of Appeals,
    March 13, 1900.
    Condemnation of Land for Public Use: DAMAGES: ABANDONMENT OE SUIT: CORPORATION. Where a corporation has instituted proceedings against a landowner to condemn a strip of land for public use, and the proceedings are dismissed, the corporation must answer to the landowner for the damages sustained in defending the suit.
    
      Appeal from the Greene Circuit Count. — Hon. Jamas Tilford Neville, Judge.
    Affirmed.
    
      Arch A. Johnson for appellant.
    (1) There was no abandonment of the condemnation proceedings by the city, such as would render it liable to plaintiff. Leisse v. Railroad, 2 Mo. App. 105; Leisse v. Railroad, 72 Mo. 561; Gray v. Railroad, 81 Mo. 126; Railroad v. De Lissa, 103 Mo. 125; Simpson v. Kansas City, 111 Mo. 237; Lohse v. Railroad, 44 Mo. App. 645.
    
      White & 'McCammon for respondent.
    (1) The appellant’s contention is that there was no abandonment of the original condemnation proceeding, that fou-r or five months after the dismissal of the action to condemn a thirty foot lot, the city began a second proceeding to condemn 'a forty-foot lot, which included the thirty-foot lot and that such second suit was, in effect, a continuance of the former suit. To this we dissent. The actions were not identical in their object, not brought to obtain the same land. One can not compel the conveyance of 160 acres by a suit to enforce a contract for forty acres. That the greater contains the less — can not be made to read “the greater is the less.” (2) For four or five months after the dismissal there was no action pending for either tract. The first suit was dead, not in a condition of suspended animation, merely to await the resurrection necessities of appellant, but dead, very dead, so that the suit begun for other land, months after its unfortunate end, can not masquerade as the same old case and deceive anybody. (3) The landowner has the right, in defending, to dispute the power, and to question the regularity of the proceedings, as well as insist upon just compensation. If be fail to defeat tbe proceedings and tbe land is in tbe end appropriated, be is not entitled to recover tbe expense incurred in making bis defense. St. Louis v. Menitz, 107 Mo. 611. (4) But after a long legal contest, defendant discontinued its proceedings altogether, thereby virtually admitting either that tbe acquisition of tbe right claimed was not a public necessity or that it did not have the power to appropriate or did not properly exercise power if possessed. Plaintiff bad tbe right to make all tbe defenses the record shows it did make, and none of tbe expenses incurred therein can be said to have been useless “and tbe judgment for expenses of making all defenses was sustained.”
   BIGGS, J.

In 1895, tbe defendant instituted proceedings against the plaintiff to condemn a strip of land for public use. Tbe matter reached tbe circuit court on appeal, where, after several mistrials, tbe proceeding was dismissed by the court. No appeal was taken from the judgment of dismissal. Tbe present action is to recover the expenses incurred by plaintiff in defending tbe action. It was agreed at tbe trial that if plaintiff was entitled to recover anything her damages should be assessed at tbe sum of one hundred and twenty-five dollars. 'The cause was submitted to the' court without a jury. The judgment was for the plaintiff for tbe stipulated amount, and tbe defendant has appealed.

It is conceded by counsel for appellant that if tbe dismissal of tbe condemnation proceedings bad been voluntary tbe right of plaintiff t to recover tbe amount legitimately expended by her in defending the action would be unquestioned. But a recovery is contested on the ground that tbe dismissal was tbe result of tbe judgment of tbe court. "We have been unable to appreciate tbe distinction which counsel urge. It is true that in all of tbe reported cases in this state tbe proceedings of condemnation were voluntarily abandoned, but in these cases tbe liability of the corporations were not predicated on that fact. The reason for the rule is that the power conferred by the state upon a corporation to appropriate private property for public usé is an extraordinary power, and that such a high prerogative is only allowed “where the plain letter of the law permits it and under a careful observance of the formalities prescribed for the owner’s protection,” Oooley Const. Lim., 651. Therefore the reported cases in this state have declared the rule that if such a proceeding is abandoned the corporation must answer to 'the landowner for the damages sustained in defending it. St. Louis Railway Company v. Railroad, 138 Mo. 591; Leisse v. Railroad, 2 Mo. App. 105; Simpson v. Railroad, 111 Mo. 231; Gibbons v. Railroad, 40 Mo. App. 146. If the corporation is answerable in case of voluntary abandonment, why should it not be held if the court should rule that the action had been improvidently instituted? In either case the landowner has been damaged through the act of the corporation.

The judgment of the circuit court will be affirmed.

All concur.  