Section 25 Instructions
Library | Condemnation Practice 2009 |
The latest MAI forms should be closely followed or paralleled, taking into account that, in inverse condemnation, the plaintiff is thrust into the posture of the true first party with attendant responsibilities of burden of proof, opening and closing, going forward with the evidence, and even mechanics such as preparation of instructions. Unlike a formal condemnation action, the parties’ positions will not be reversed.
The nature of the case being one for damages for appropriation of property rights, the instructions should endeavor to follow the forms set forth by MAI on eminent domain. There must be some modification of existing approved instructions, but failure to use them in an inverse condemnation proceeding would doubtless be error. Thus, an action for damage to land by reason of permanent nuisance was determined to be controlled by the law of eminent domain, and MAI instructions on eminent domain were applicable to the exclusion of any other instruction on the subject. Stewart v. City of Marshfield, 431 S.W.2d 819 (Mo. App. S.D. 1968). See also Shelton v. M&A Elec. Power Coop., 451 S.W.2d 375 (Mo. App. S.D. 1970); Barr v. KAMO Elec. Corp., 648 S.W.2d 616 (Mo. App. W.D. 1983).
Different than ordinary condemnation cases, the question of “taking” could well be a contested issue in inverse condemnation that would necessitate a jury determination of that fact...
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- Section 1 Scope of Chapter
- Section 2 Theory of Inverse Condemnation
- Section 3 Function of Inverse Condemnation
- Section 4 Parties Entitled to Originate Inverse Condemnation Action
- Section 5 Timeliness in Bringing Action
- Section 6 Torts Distinguished
- Section 7 A Taking or Damaging
- Section 8 Lawful Authority
- Section 9 Public Use
- Section 10 Permanency of Taking
- Section 11 Date of Taking
- Section 12 Generally
- Section 13 Missouri Cases Finding No Taking or Damaging
- Section 14 Missouri Cases Finding a Taking or Damaging
- Section 15 Federal Cases Analyzed
- Section 16 Generally-Civil Rules
- Section 17 Venue
- Section 18 Necessary Parties
- Section 19 Necessary Contents
- Section 20 Form of Petition
- Section 21 Responsive Pleadings
- Section 22 Jury Trial
- Section 23 Burden of Proof
- Section 24 What Is Compensable: Measure of Damages, Interest, and Attorney Fees
- Section 25 Instructions
- Section 26 Judgment
- Section 27 Statutory Inverse Condemnation
- Section 28 Injunction
- Section 29 Ejectment
- Section 30 Mandamus
- Section 31 Trespass
- Section 32 Declaratory Judgment
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