117 S.W.3d 140 (Mo.App. W.D. 2003), WD 61718, Riverside-Quindaro Bend Levee Dist., Platte County, Missouri v. Missouri American Water Co.

Docket NºWD 61718.
Citation117 S.W.3d 140
Party NameIn the Matter of RIVERSIDE-QUINDARO BEND LEVEE DISTRICT, PLATTE COUNTY, MISSOURI, Respondent, v. MISSOURI AMERICAN WATER COMPANY, Appellant.
Case DateJune 03, 2003
CourtCourt of Appeals of Missouri

Page 140

117 S.W.3d 140 (Mo.App. W.D. 2003)

In the Matter of RIVERSIDE-QUINDARO BEND LEVEE DISTRICT, PLATTE COUNTY, MISSOURI, Respondent,

v.

MISSOURI AMERICAN WATER COMPANY, Appellant.

No. WD 61718.

Court of Appeals of Missouri, Western District.

June 3, 2003.

Motion for Transfer to Supreme Court Denied July 29, 2003.

Application for Transfer Denied Oct. 28, 2003.

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R. Dan Boulware, St. Joseph, MO, Ronald L. Holt, Todd Henry Bartels, Kansas City, MO, for appellant.

John W. McClelland, Kansas City, MO, R. Michael McGinness, Platte City, MO, for respondent.

Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH and EDWIN H. SMITH.

ROBERT ULRICH, Judge.

Missouri American Water Company ("Water Company") appeals the judgment of the Circuit Court favoring Riverside-Quindaro Bend Levee District ("Levee District") in its condemnation of property that certain entities had authorized the Water Company to utilize and on which the Water Company had placed water distribution lines. 1 Water Company raises

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six points on appeal. It claims that the Circuit Court erred in finding that: (1) Water Company failed to introduce any evidence establishing that it has a legal right to locate and maintain its water distribution lines in Riverside because no substantial evidence supported this finding and it was against the weight of the evidence; (2) its Highway 9 License and Riverside Licenses are common law licenses not compensable in condemnation because Missouri's public right-of-way utility statutes establish special licenses occupancy interests for utilities that cannot be modified or terminated without compensation unless relocation is mandated by roadway improvement and maintenance needs; (3) Water Company's Railroad License is a license and not compensable because the finding was against the weight of the evidence and erroneous under the law; (4) Water Company will not be required to move its line outside of the ten-foot wide area of the Private Easement and that such finding is against the weight of the evidence; (5) a compensable taking of an easement interest does not occur if the holder of that interest is not required to completely leave the easement area and instead is required to relocate facilities from one area within the easement to another area, because a taking of a compensable interest occurs whenever the holder is required to surrender any part of its occupancy rights under the easement; and (6) a utility's costs for relocation of its facilities are not compensable in condemnation because a utility is not required to shoulder such costs for relocation from a public right-of-way unless the relocation is necessitated by roadway needs, it is not required to bear such costs for relocation from a private license unless the licensor has demanded the relocation, for reasons precluding condemnation, and it is not required to bear such costs for relocation from or within a private easement because relocation essentially destroys an existing occupancy which has a value at least commensurate to the relocation costs. The judgment of the trial court is affirmed in part and reversed in part.

Factual and Procedural Background

This appeal originates from condemnation proceedings brought by Levee District. Levee District, the United States Army Corps of Engineers ("Corps"), and Riverside are working together to build a levee and flood control project in Platte and Clay Counties which will protect roughly 2,400 acres of land from flooding. Levee District was created in 1918 and operates by authority of Chapter 245 of the Revised Missouri Statutes. Water Company is a privately held Missouri utility company that is regulated by the Missouri Public Service Commission pursuant to Chapter 386. Water Company operates nine systems in Missouri, one of which is located in Platte County and contains over 4,800 end users.

In March 1999, Levee District prepared and submitted to its board of supervisors a "Report of Engineer and Supplement to Plan for Reclamation." The plan was designed to protect transportation facilities located within Levee District, namely the railroad lines of BNSF, Missouri State Highways 9, 69, and 169, and Interstate Highways 635 and 29. To protect the transportation facilities, the plan required Levee District to acquire certain property to provide a permanent right-of-way for construction of the levee as well as relocation of certain utilities. After approving

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the plan, the board authorized Levee District to file a petition as provided by section 245.110. Levee District filed the petition on April 21, 1999, in the Circuit Court of Platte County ("Circuit Court") seeking approval to amend the district boundaries, to acquire additional properties including easements and rights-of-way, and to appoint commissioners to value the property interests to be taken and assess benefits and damages. The Circuit Court approved the plan on July 13, 1999.

A new plan was issued and presented on April 17, 2000, to Levee District's board. The board approved the amended plan and filed an amended petition with the Circuit Court on April 26, 2000. The amended plan identified those parties holding rights-of-way and easements over tracts of land that Levee District was condemning. The Circuit Court subsequently approved the amended plan. Throughout 2000 and 2001, the commissioners conducted hearings with fee title owners in property subject to acquisition under the plan.

Water Company was one of the property owners identified in the amended plan as holding property interests to be condemned by Levee District. Construction of the new levee requires Water Company to relocate distribution lines in seven locations: (1) one is located within a private easement granted to Water Company by Line Creek Properties ("Private Easement"); (2) another is a railroad license granted to Water Company by BNSF and located within a right-of-way owned by BNSF ("Railroad License"); (3) one area is a public right-of-way license granted to Water Company via a 1967 permit from the Highway Commission and located within a Missouri Highway and Transportation Commission right-of-way ("Highway 9 License"); and (4) the other four areas were granted to Water Company by Riverside and are located within rights-of-way on Riverside streets ("Riverside Licenses"). Water Company's distribution lines have been installed in these seven locations between ten to forty years.

Between 1999 and 2000, Water Company and Levee District had several discussions about the relocation of Water Company's lines. On January 28, 2000, Mike McGinness, a Levee District attorney, sent a letter to Mark Griffin, Water Company's engineering manager. The parties dispute the purpose of the letter. Water Company claims that the purpose of the letter was to assure Water Company that Levee District would pay all of Water Company's costs of relocating water lines necessitated by the construction of the new levee. Levee District contends that the letter was intended to inform Water Company that it might be eligible to receive reimbursement for relocating its water lines through the Uniform Relocation Assistance and Real Properties Acquisition Policies Act of 1970, 42 U.S.C.A. § 4601 et seq. ("Federal Relocation Act"). Levee District further claims that the letter recited its intent to comply with the Federal Relocation Act.

Levee District commissioners issued their report, fixing values for property interests taken, and assessing the damages and benefits accrued to landowners on September 13, 2001. The commissioners found that Water Company was not entitled to damages and that its property interests were not compensable interests in the condemnation proceeding. Water Company filed exceptions to the report on September 21, 2002, objecting to the taking of its property interests without compensation and requesting a jury trial on the damages it would incur as a result of the taking. On October 23, 2001, the Circuit Court entered an order confirming the commissioners' report. Water Company filed a motion for clarification of the Circuit Court's October 23, 2001 order. Specifically,

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Water Company sought to determine whether it would be receiving a jury trial on its exceptions to the commissioners' report. The Circuit Court held an evidentiary hearing on Water Company's exceptions to the commissioners' report on April 25, 2002.

The Circuit Court issued its holding on June 12, 2002, concluding that Water Company had no compensable interest in any of the seven locations and would not be compensated for any of its relocation costs. This holding did not constitute a final judgment because other property owners' exception claims were yet undecided. Water Company sought a 74.01(b) determination on June 21, 2002. On July 25, 2002, the Circuit Court ruled under Rule 74.01(b) that no just reason existed for delay of Water Company's appeal and issued a final judgment regarding its claims. This appeal followed.

Standard of Review

The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Id. In applying this standard, the evidence and all reasonable inferences drawn therefrom is viewed in the light most favorable to the trial court's judgment and all contrary evidence and inferences must be disregarded. Wildflower Cmty. Ass'n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App. W.D.2000) (citing Lance v. Lance, 979 S.W.2d 245, 248 (Mo.App. W.D.1998)). 2 A judgment should be set aside on...

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17 practice notes
  • 180 S.W.3d 66 (Mo.App. S.D. 2005), 26893, Sheedy v. Missouri Highways and Transp. Commn.
    • United States
    • Missouri Court of Appeals of Missouri
    • December 21, 2005
    ...and is binding on successive owners. See Riverside-Quindaro Bend Levee Dist., Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 155 (Mo.App. 2003); Borton v. Forest Hills Country Club, 926 S.W.2d 232, 234 (Mo.App. 1996)....
  • 417 S.W.3d 269 (Mo.App. W.D. 2013), WD 76014, Sparks v. Sparks
    • United States
    • Missouri Court of Appeals of Missouri
    • November 26, 2013
    ...of the trial court result, not the route taken to reach it." In re Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140, 146 (Mo.App. W.D.2003). Therefore, " [n]otwithstanding the fact that the trial court's judgment contains wrong or insufficient proffered rea......
  • 456 S.W.3d 120 (Mo.App. W.D. 2015), WD77476, Noble v. Noble
    • United States
    • Missouri Court of Appeals of Missouri
    • March 10, 2015
    ...Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo. App. W.D. 2013) (quoting In re Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140, 146 (Mo. App. W.D. 2003)). " Therefore, '[n]otwithstanding the fact that the trial court's judgment contains wrong or insufficient proffer......
  • 226 S.W.3d 211 (Mo.App. W.D. 2007), WD 67116, Piazza v. Combs
    • United States
    • Missouri Court of Appeals of Missouri
    • June 12, 2007
    ...none, part, or all of the testimony of any witness." Riverside-Quindaro Bend Levee Dist., Platte County, Mo. v. Mo. Am. Water Co., 117 S.W.3d 140, 154 (Mo.App. W.D. 2003). "An appellate court will not substitute its judgment for that of the trial court judge's on credibility issue......
  • Request a trial to view additional results
17 cases
  • 180 S.W.3d 66 (Mo.App. S.D. 2005), 26893, Sheedy v. Missouri Highways and Transp. Commn.
    • United States
    • Missouri Court of Appeals of Missouri
    • December 21, 2005
    ...and is binding on successive owners. See Riverside-Quindaro Bend Levee Dist., Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 155 (Mo.App. 2003); Borton v. Forest Hills Country Club, 926 S.W.2d 232, 234 (Mo.App. 1996)....
  • 417 S.W.3d 269 (Mo.App. W.D. 2013), WD 76014, Sparks v. Sparks
    • United States
    • Missouri Court of Appeals of Missouri
    • November 26, 2013
    ...of the trial court result, not the route taken to reach it." In re Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140, 146 (Mo.App. W.D.2003). Therefore, " [n]otwithstanding the fact that the trial court's judgment contains wrong or insufficient proffered rea......
  • 456 S.W.3d 120 (Mo.App. W.D. 2015), WD77476, Noble v. Noble
    • United States
    • Missouri Court of Appeals of Missouri
    • March 10, 2015
    ...Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo. App. W.D. 2013) (quoting In re Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140, 146 (Mo. App. W.D. 2003)). " Therefore, '[n]otwithstanding the fact that the trial court's judgment contains wrong or insufficient proffer......
  • 226 S.W.3d 211 (Mo.App. W.D. 2007), WD 67116, Piazza v. Combs
    • United States
    • Missouri Court of Appeals of Missouri
    • June 12, 2007
    ...none, part, or all of the testimony of any witness." Riverside-Quindaro Bend Levee Dist., Platte County, Mo. v. Mo. Am. Water Co., 117 S.W.3d 140, 154 (Mo.App. W.D. 2003). "An appellate court will not substitute its judgment for that of the trial court judge's on credibility issue......
  • Request a trial to view additional results