Section 29 Taking by the Sovereign

• Library: Condemnation Practice 2009

The linchpin case on condemnation of property devoted to a public use is State ex rel. State Highway Commission v. Hoester, 362 S.W.2d 519 (Mo. banc 1962). In Hoester, the State Highway Commission sought to condemn property belonging to a fire protection district established under Chapter 321, RSMo. The Court stated the general rule that property already devoted to a public use cannot be taken for another public use that will totally destroy or materially impair or interfere with the former use unless the intent of the legislature to allow such condemnation is clearly expressed. A mere general authority to exercise the power of eminent domain is normally not sufficient to condemn land already devoted to a public use. Nevertheless, when the condemnor has only general authority, it still may be allowed to condemn property devoted to a public use on a showing that the property has been abandoned, subjecting it to condemnation...