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...