Section 14 Missouri Cases Finding a Taking or Damaging

• Library: Condemnation Practice 2009

A landmark case in the realm of inverse condemnation is Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993). Heins, while sounding the death knell to the common enemy doctrine, also explored other areas, including the proper remedy in what would amount to a traditional nuisance claim when the damage is caused by a party with condemning authority. In Heins, the Missouri Highway and Transportation Commission built an overpass that had the effect of damming the flow of surface water. A group of flooded property owners filed suit, alleging nuisance and negligence, against the Missouri Highway and Transportation Commission and others. The Supreme Court, on appeal, found that “when private property is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action in inverse condemnation.” Id. at 693. The Supreme Court further substituted the reasonable-use directive for the common-enemy doctrine and, in doing so, opined in footnote 15 (citing Wilson v. Ramacher, 352 N.W.2d 389 (Minn. 1984), and Bd. of Transp. v. Terminal Warehouse Corp., 268 S.E.2d 180 (N.C. 1980)), that even a reasonable diversion of surface water by a public entity could be a taking or damaging.

Another landmark decision came in the form of Clay County Realty Co. v. City of Gladstone, 254 S.W.3d 859 (Mo. banc 2008), in which the Supreme Court approved inverse condemnation claims for “condemnation blight.” Condemnation blight is a term used to describe damages that occur to a property as a result of an announcement that property is blighted followed by a lengthy delay in the acquisition of the property. Id. at 864. Before Gladstone, Missouri courts had avoided deciding this issue. The Court held, very specifically, that “actions for condemnation blight are inverse condemnation claims that property owners may advance in order to recover consequential precondemnation damages, such as . . . for increased operating costs and for lost rental and lease income.” Id. at 869. To succeed, property owners will have to prove that there has been “aggravated delay or untoward activity in instituting or continuing the condemnation proceedings at issue.” Id. (emphasis added). To determine if undue delay has occurred, one factor will be if any statutory time limitation for the exercise of eminent domain has expired. Id. It appears as though the Gladstone Court set out a prima facie case of untoward delay if such a time period has elapsed, but the Court does not specifically indicate this. However, the Court does say that, if such a time period has not elapsed, “untoward...