Section 2 Authority to Exercise Power of Eminent Domain

• Library: Condemnation Practice 2009

The right to exercise the power of eminent domain does not naturally inhere in counties, municipalities, or public service corporations. State ex rel. Mo. Cities Water Co. v. Hodge, 878 S.W.2d 819 (Mo. banc 1994). Rather, the legislature is the sole source of and has the exclusive role of delegating the power of eminent domain to various public and private entities, subject to limitations found in the United States and Missouri Constitutions and other Missouri statutes. U.S. Const. amends. V and IV; Mo. Const. art. I, §§ 26 and 28; Hodge, 878 S.W.2d 819; Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569 (Mo. App. S.D. 1997). When promulgated by the legislature, statutes conferring the power of eminent domain define the scope of the power and the manner in which the power may be exercised, and the statutes are strictly construed. Osage Water Co., 950 S.W.2d 569. But once delegated, unless restricted by a constitutional provision, the power is practically absolute. City of Arnold v. Tourkakis, 249 S.W.3d 202 (Mo. banc 2008).

Eminent domain can be exercised to condemn personal as well as real property. State ex rel. State Highway Comm’n of Mo. v. Park, 15 S.W.2d 785 (Mo. banc 1929). In addition, the power of eminent domain is not limited to condemnation of private property. The state may take public property held by a subordinate political subdivision for the state’s immediate purposes regardless of whether the taking impairs an existing public use. State ex rel. State Highway Comm’n v. Hoester, 362 S.W.2d 519 (Mo. banc 1962). But a political subdivision of the state can only condemn the public property of another political subdivision when the taking will not totally...