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 question. Mapco, Inc. v. Williams, 581 S.W.2d 402 (Mo. App. W.D. 1979). Consequently, Missouri courts have traditionally deferred to and do not second guess a legislative body in determining the issue of necessity. Boman v. Kansas City, 233 S.W.2d 26 (Mo. banc 1950); State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo. App. W.D. 1958). Thus, a legislative determination of necessity will not be upset unless there is evidence of fraud, bad faith, or the arbitrary exercise of legislative discretion. Parking Sys., Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo. 1974); In re Armory Site in Kansas City, 282 S.W.2d 464 (Mo. 1955); City of Blue Springs, Mo. v. Cent. Dev. Ass’n, 684 S.W.2d 44 (Mo. App. W.D. 1984).

Likewise, the courts will generally defer to a condemning authority’s determination of necessity. For example, in Perigo, 886 S.W.2d 149, the court sustained a Highway Commission finding as to the designated route of a new highway despite the fact that an alternate route was available. In deferring to the Highway Commission’s determination of public necessity, the court pointed out that article IV, § 29, of the Missouri Constitution, and Chapter 227, RSMo, gave the Commission the right to:

• decide where to locate a state highway

• determine its width

• determine its type of construction; and

• determine the extent of land needed for economical...