Section 13 Missouri Cases Finding No Taking or Damaging

• Library: Condemnation Practice 2009

Before analysis of the various events found by Missouri courts to be “takings” or “damagings,” it is important to note that not all of these events are takings in the constitutional sense, although, measured by degree, they could become so if found to be excessive.

State ex rel. Washington University Medical Center Redevelopment Corp. v. Gaertner, 626 S.W.2d 373 (Mo. banc 1982), holds that the following do not rise to the level of taking in the constitutional sense:

• A city’s declaration that an area is blighted
• The mere threat of condemnation
• Offers to buy
• Precondemnation negotiations
• The creating of plans

But see Clay County Realty Co. v. City of Gladstone, 254 S.W.3d 859 (Mo. banc 2008), and Roth v. State Highway Commission of Missouri, 688 S.W.2d 775 (Mo. App. E.D. 1984), in which evidence of aggravated delay in condemning and untoward activities by the condemnor did establish a constitutional taking.

Gardner v. City of Cape Girardeau, 880 S.W.2d 652 (Mo. App. E.D. 1994), held that a city’s precondemnation survey was neither a taking nor a damaging.

There is no taking when a county fails to provide a legal description of a previously acquired roadway, even if the failure creates a cloud on the title of the adjoining landowners. Wyper v. Camden County, 160 S.W.3d 850, 853 (Mo. App. S.D. 2005).

Similarly, in State ex rel. City of...