Section 8 Access to Property Before Condemnation

• Library: Condemnation Practice 2009

In many circumstances, it is necessary or desirable for a condemnor to have access to the property to be acquired before the institution of a condemnation action. Indeed, in regard to land surveying, Missouri courts have ruled that "pre-condemnation surveying is not only necessary to the exercise of the right of eminent domain, it is a part of eminent domain." State ex rel. Rhodes v. Crouch, 621 S.W.2d 47, 48 (Mo. banc 1981). Rule 86.04 provides that, in all cases, a petition for condemnation "shall contain a description of the property or right sought to be taken." The Supreme Court of Missouri has held that the condemnor must describe the land to be acquired "with such particularity that the owner can, without too much difficulty ascertain exactly what is being taken. . . ." Crouch, 621 S.W.2d at 48 (citing State ex rel. Morton v. Allison, 365 S.W.2d 563 (Mo. banc 1963)). Such a requirement necessitates access to the property before the filing of the condemnation petition.

Additionally, many enabling statutes require land surveys. For example, the Missouri Highway and Transportation Commission is obligated by statute to "determine the most advantageous route." Section 227.120.1(13), RSMo Supp. 2008. Likewise, railroad corporations are required to conduct precondemnation surveys "as may be necessary to the selection of the most advantageous route." Section 388.210(1), RSMo 2000. Thus, courts generally permit a condemnor to enter onto the land to be taken, without the owner's permission, to undertake a land survey.

But there are limits on these rights. Our courts also recognize that "[t]he power of eminent domain does not carry with it the right to enter upon the land of another, commit a trespass . . ., and in defense to such action claim the power to condemn." Pogue v. Associated Elec. Coop., Inc., 760 S.W.2d 169, 173 (Mo. App. S.D. 1988) (quoting Harris v. L.P.&H. Constr. Co., 441 S.W.2d 377, 382 (Mo. App. E.D. 1969)). Thus, courts generally uphold the rights of a landowner to prohibit condemners from conducting activities that...