Section 26 Appeal of Order of Condemnation

• Library: Condemnation Practice 2009

An order of condemnation is an interlocutory order; it only becomes final for purposes of appeal after the jury has assessed damages. See:

• Norfolk & W. Ry. Co. v. Greening, 458 S.W.2d 268 (Mo. 1970)

• State ex rel. State Highway Comm’n v. Hammel, 290 S.W.2d 113 (Mo. 1956)

• State ex rel. Union Elec. Co. v. Godfrey, 673 S.W.2d 14 (Mo. banc 1984)

• State ex rel. Mo. Cities Water Co. v. Hodge, 878 S.W.2d 819 (Mo. banc 1984)

But Missouri courts have recognized that prohibition is a proper vehicle to determine the propriety of a condemnation order. State ex rel. Devanssay v. McGuire, 622 S.W.2d 323 (Mo. App. E.D. 1981). In explaining the rationale for using prohibition to ascertain
the propriety of an order of condemnation, the court in McGuire explained: “If the trial court lacks jurisdiction to entertain the condemnation proceeding the damage to relators from the destruction of their property prior to appeal may well be beyond redress and would result in injustice.” Id. at 326.

If a preliminary writ of prohibition is granted, the hardship on the condemnor may be significant. The entire development may cease until a disposition on the merits of the writ is reached. But if the landowner fails to obtain a preliminary writ of prohibition, the landowner is then confronted with great difficulties in perfecting an appeal. Under Missouri law, a condemning authority obtains title to the property as soon as it pays the amount of the commissioners’ award into the registry of the court. City of St. Louis v. Int’l Harvester Co., 350 S.W.2d 782 (Mo. banc 1961). Thus, by the time an appeal can be perfected, the landowner’s property may have been taken and, in all likelihood, put to a different use. Moreover, to perfect an appeal, the landowner must refrain from withdrawing the very funds from the registry of the court that are to compensate for the loss of the property. Once a landowner...