Section 11 Necessity

• Library: Condemnation Practice 2009

The issue of necessity raises the question of whether the taking of the property is “necessary” for the condemnor’s purpose; that is, whether the designated location, the amount of property involved, and the interest being taken are “necessary” to advance the condemnor’s public purpose. Public use and public necessity are jurisdictional prerequisites to a condemnation, and the burden to prove both is on the condemnor. State ex rel. State Highway Comm’n v. Curtis, 222 S.W.2d 64 (Mo. banc 1949); State ex rel. Mo. Highway & Transp. Comm’n v. Perigo, 886 S.W.2d 149 (Mo. App. S.D. 1994). But the standard of review used by the courts with respect to the issues of public use and public necessity are different.

As explained in §1.12 below, public use is deemed to be a judicial question, and the court is not bound by a legislative declaration that the use is public. In contrast, “necessity” is said to be
a legislative or public...