Section 35 Abandonment of Condemnation Proceedings

• Library: Condemnation Practice 2009

A condemnor has the unqualified right to abandon the condemnation proceedings at any time within ten days after the filing of the commissioners’ report, or when exceptions are filed, within ten days after the assessment of damages is final. Section 523.040, RSMo Supp. 2008; Rule 86.06; Ctr. Sch. Dist. No. 58 of Jackson County v. Kenton, 345 S.W.2d 120 (Mo. 1961); Wash. Univ. Med. Ctr. Redevelopment Corp. v. See, 654 S.W.2d 192 (Mo. App. E.D. 1983). The courts have recognized that § 523.040 and Rule 86.06 should be construed to give the condemnor the right to ascertain the final price for the property to be acquired and to discontinue proceedings if the price is too high. See Wash. Univ. Med. Ctr., 654 S.W.2d at 194.

Once the assessment of damages becomes final by judgment or appeal, the right to abandon is waived if not timely exercised. In addition, if the condemnor takes possession or exercises the right of ownership, title vests in the condemnor. State ex rel. State Highway Comm’n v. DeMarco, 422 S.W.2d 644 (Mo. 1968); State ex rel. Mo. Highway & Transp. Comm’n v. Turner, 857 S.W.2d 293 (Mo. App. W.D. 1993).

Under Rule 86.06, if the condemnation proceedings are abandoned, a new proceeding by the same condemnor to condemn the same property cannot be instituted again for two years. The only judicially recognized exception to this Rule appears to be when the abandonment is because of an erroneous legal description caused by a good-faith mistake by the condemnor and not instituted to harass the condemnee or to procure a more favorable assessment. State ex rel. Morton v. Allison, 365 S.W.2d 563 (Mo. banc 1963).

...