Section 28 Duties of Commissioners, Notice of Viewing, Viewing the Property, Assessment of Damages, and Filing Report

• Library: Condemnation Practice 2009

It is within the province of the court to inform all commissioners of their duties and responsibilities. State ex rel. State Highway Comm’n v. Klipsch, 365 S.W.2d 76 (Mo. App. E.D. 1963). The duties of the commissioners are set forth in § 523.040, RSMo Supp. 2008.

Once sworn, the commissioners are required to:

• “view the property

• hear arguments, and

• review other relevant information that may be offered by the parties.”

Section 523.040.2. The commissioners must notify all parties named in the condemnation petition at least ten days before their viewing of the property of the landowner’s right “to accompany the commissioners on the commissioners’ viewing of the property and of the named parties’ opportunity to present information to the commissioners.” Id.

The formality, or informality, of how the commissioners’ hearings are conducted varies widely, and counsel are encouraged to discuss the expectations of the commissioners in this regard as soon as the commissioners are appointed. The rules of evidence generally are not adhered to at a commissioners’ hearing, and it is not unusual for commissioners to consider information that would never be permitted in a jury trial, such as executory contacts or settlements made with other landowners.

In evaluating the just compensation to be awarded, the commissioners are required to apply the definition of fair market value contained in § 523.001(1), RSMo Supp. 2008. Fair market value is defined as:

the value of the property taken after considering comparable sales in the area, capitalization of income, and replacement cost less depreciation, singularly . . . based upon its highest and best use, using generally accepted appraisal practices. If less than the entire property is taken, fair market value shall mean the difference between the fair market value of the entire property immediately prior to the taking and the fair market value of the remaining or burdened property immediately after the taking.

Section...