Section 2 Theory of Inverse Condemnation

• Library: Condemnation Practice 2009

The action of inverse condemnation is not a condemnation proceeding at all. Rather, it is a remedy solely for the benefit of the landowner whose property was damaged or taken without prior payment by the taker, contrary to constitutional guarantees. Therefore, it has been said to be in the nature of a condemnation proceeding.

In State ex rel. State Highway Commission v. Swink, 537 S.W.2d 556 (Mo. banc 1976), the Supreme Court of Missouri pointed out the two typical fact situations that authorize a landowner to sue a condemning authority:

1. When a condemnor fails to condemn a tract of land either through error or design but appropriates it anyway

2. When the condemnor does not actually appropriate the land but, as a direct consequence of the improvement, damages the land not appropriated

For an example of the second situation, see Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993). Barr v. KAMO Electric Corp., 648 S.W.2d 616 (Mo. App. W.D. 1983), held that when a condemning authority commits an act amounting to a permanent nuisance affecting the property of another, the plaintiff’s cause of action for damages to the land is governed by the law of eminent domain and so a claim for damages is converted into an action in the nature of a condemnation proceeding. In Heins, the Supreme Court reached...