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 alsoShelton 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...