Section 12 Public Purpose or Public Use

• Library: Condemnation Practice 2009

The inherent power of the state to take private property is limited to property needed for a “public use.” Mo. Const. art. I, § 26. The power to take cannot be used to take private property for a private use. Mo. Const. art. I, § 28; State ex rel. Mo. Cities Water Co. v. Hodge, 878 S.W.2d 819 (Mo. banc 1994). There are two minor exceptions to this rule. Private property may be taken for private use “for private ways of necessity” or “for drains and ditches across the lands of others for agricultural and sanitary purposes.” Mo. Const. art. I, § 28.

Therefore, unless one of the narrow exceptions applies, before the power of eminent domain can be exercised, the use for which the taking occurs must be shown to be a public one. State ex rel. Devanssay v. McGuire, 622 S.W.2d 323 (Mo. App. E.D. 1981). For example, when a taking is ostensibly for a public improvement, but the improvement does not serve a public purpose, there is no taking for a “public use,” and the condemnation may not proceed. City of St. Louis v. Butler Co., 223 S.W.2d 831 (Mo. App. E.D. 1949).

The Missouri Constitution specifies that the issue of public use must be resolved by the court “without regard to any legislative declaration that the use is public.” Mo. Const. art. I, § 28. Thus, while a legislative determination that a use is public is one piece of evidence a court may consider in reaching its decision on the issue of public use, these legislative findings are not determinative or entitled to deference. City of Kansas City v. Hon, 972 S.W.2d 407 (Mo. App. W.D. 1998).

But in redevelopment cases in which the condemnation is based on a legislative determination that an area is “blighted,” the tension between the judicial question language of Missouri Constitution article I, § 28, and article VI, § 21, which authorizes the enactment of legislation for the taking of blighted property, has led to the adoption of a different standard of review in redevelopment cases on the issue of public use. State on inf. of Dalton v. Land Clearance for Redevelopment Auth. of Kansas City, Mo., 270 S.W.2d 44 (Mo. banc 1954); State ex rel. United States Steel v. Koehr, 811 S.W.2d 385 (Mo. banc 1991). In these cases, the legislative declaration of blight, in effect, declares the public use. Accordingly, a court will defer to a legislative determination of blight unless it is arbitrary or was induced by fraud, collusion, or bad faith. Dalton, 270 S.W.2d 44; Parking Sys., Inc. v. Kansas City Downtown...