— This was a proceeding by the city of Kansas to widen and extend Broadway street from Twenty-third street south to city limits. The defendants are persons whose property was condemned by the *218ordinance and persons who own property within the district over which benefits were to be assessed. There was a trial anew in the circuit court, and from the judgment of that court, confirming the verdict of the jury, two of the defendants, namely, Wilkinson and Egelhoff, appealed. The appellants are owners of property taken and of property assessed with benefits.
The circuit court, in its instructions to the jury, told them that in assessing damages and benefits they had the right to and would be guided by all the evidence in the case “as well as their own judgment.” It is to the quoted words that appellants object. By the charter of the City of Kansas, the jury in these cases must consist of six householders of the city, and are to be selected by the judge of the circuit court. Parties interested may submit proof to the jury, and the latter shall examine personally the property to be taken and assessed. (Art. 7, sees. 3, 6, Acts of 1875, pp. 245, 247.) These charter provisions show clearly enough that in making up their verdict the jurors are to be guided by their own judgment as to damages and benefits, as well as by such information as they get from witnesses. Por this reason freeholders of the city are selected. The law seeks to get persons to perform this jury duty who are familiar with values. Why send them to examine the property unless it be that they are to make use of •the information thus acquired? The jury should not be told that they may disregard the evidence before them. City of Kansas v. Hill, 80 Mo. 523. But they may give to the evidence such weight as they believe it entitled to receive ; and in, fixing the damages and benefits, they may also act upon their own knowledge and judgment. The instruction is in accord with what has been said and with the ruling in the recent case of City of Kansas v. Butterfield, 89 Mo. 646.
Prom this record there can be no doubt but this is a proceeding to widen and extend one of the public highways of the City of Kansas, and the use to which *219the city seeks to put the property is a public not a private one, and so the court ruled. The whole record shows that the use is a public one, and that is sufficient. But if we understand counsel for the appellants, he insists that there is no finding that there is any public necessity for the present widening and extending of this street. When a question arises whether the use is really a public one, it is the duty of the courts to determine that question ; and this they must do, under our present constitution, without any regard to a legislative declaration that the use is public. But it appearing that the proposed street is for public use, the question of the present public necessity for it, is not a question to be tried in the proceeding to condemn property, unless the statute makes it the duty of the court or jury to p>ass upon that question. City of Savannah v. Hancock, 91 Mo. 54. There is nothing in the charter of the City of Kansas which makes it the duty of the trial court to pass upon or submit any such question to the jury. Whether a given public street shall be opened or not, is a matter confided to the common council, and that body determines the question by the passage of an ordinance for the opening of the street and the condemnation of property therefor.
Further complaint is made because the court refused to instruct the jury that if the street, when opened, would be impassable for travel and use, then the jury should assess no benefits to adjoining land. The evidence does show that the street passes over a rough and broken country, and that if no work is done upon it, when opened, it will be useless, but we are at a loss to see what that has to do with the validity of this condemnation. There is no evidence that the street cannot be made passable, and the very object of this proceeding is, that the city may acquire the property and then bring the street to a reasonable grade.
We find no merit in this appeal; and the judgment is affirmed.
All concur.