Section 33 Necessity of the Taking

• Library: Condemnation Practice 2009

In addition to establishing the power to condemn and that the condemnation is for a public purpose, the condemnor must show
the necessity of acquiring the property for that public purpose.
While public purpose is considered a judicial question, necessity is said to be a legislative or public question. Mapco, Inc. v. Williams, 581 S.W.2d 402 (Mo. App. W.D. 1979). Consequently, Missouri courts have traditionally deferred to and do not second guess a legislative body in determining the issue of necessity. Bowman v. Kansas City, 233 S.W.2d 26 (Mo. banc 1950); State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo. App. S.D. 1958). Thus, a legislative determination of necessity will not be upset unless there is evidence of fraud, bad faith, or the arbitrary exercise of legislative discretion. See:

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