362 S.W.2d 519 (Mo. 1962), 49521, State ex rel. State Highway Commission v. Hoester

Docket Nº49521.
Citation362 S.W.2d 519
Party NameSTATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Robert G. J. HOESTER, Judge of the 21st Judicial Circuit of Missouri and of Division 8 of the Circuit Court of St. Louis County, Harry Gershenson, S. M. Aronson, and Edward B. Southall, Condemnation Commissioners, Respondents.
Case DateNovember 14, 1962
CourtSupreme Court of Missouri

Page 519

362 S.W.2d 519 (Mo. 1962)

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Relator,

v.

The Honorable Robert G. J. HOESTER, Judge of the 21st

Judicial Circuit of Missouri and of Division 8 of the

Circuit Court of St. Louis County, Harry Gershenson, S. M.

Aronson, and Edward B. Southall, Condemnation Commissioners,

Respondents.

No. 49521.

Supreme Court of Missouri, En Banc.

November 14, 1962

Rehearing Denied Dec. 11, 1962.

Page 520

Robert L. Hyder, Samuel C. Ebling, Jefferson City, for relator.

Paul Taub, Overland, Attorney for respondent Judge and for intervenor.

HYDE, Judge.

Relator commenced a condemnation proceeding in the Circuit Court of St. Louis County, in June 1961, for 6.5 miles right of way for a state highway. All required land has been acquired (including 42 parcels condemned) except the property owned

Page 521

by the Ballwin Fire Protection District (hereinafter called Fire District) which has been permitted to intervene. Separate commissioners were appointed to appraise Fire District's property but, because Fire District had filed a notice of appeal from the order of condemnation, these commissioners were instructed by the court not to proceed.

Relator seeks mandamus to require the court and the commissioners to complete the proceedings. Fire District contends that the State Highway Commission (hereinafter called Commission) has no authority to condemn its property saying it is a political subdivision of the state using this property for governmental functions. (Fire District would be so classed for purposes of taxation under Sec. 15, Art. X, Const.) Of couse, if the Commission has no authority to condemn this property, a peremptory writ of mandamus should not be ordered. To expedite the matter we made the following order: 'Petition for writ of mandamus sustained. Alternative writ ordered issued returnable to Court en Banc within 30 days because appeal in this case appears to be premature. State ex rel. State Highway Commission v. Hammel, Mo.Sup., 290 S.W.2d 113. It is further ordered that no possession of property in question be taken pending the final determination of these proceedings.'

Returns have been filed by respondents and intervenor and relator has filed motion for judgment on the pleadings. Therefore, the well pleaded averments in the returns will be taken as true and those averments of the petition specifically denied by the returns taken as false. State ex rel. Pontiac Realty Co. v. Nangle, Mo.Sup., 315 S.W.2d 214, 216, and cases cited; see also State ex rel. Reeves v. Brady, Mo.Sup., 303 S.W.2d 22, 23. Fire District says there were denials in the return which raised fact issues but these (so far as briefed) concern the right to appoint the Commissioners which is really a question of law and is so treated. The contention is that there is no right or authority to condemn Fire District's property already devoted to a public use and therefore appointment of Commissioners by the court for that purpose could not be valid. Thus decision of the basic issue of the right to condemn will dispose of all contentions made.

Fire District was established under Chapter 321, Secs. 321.010-321.450 (statutory references are to RSMo and V.A.M.S.) and is given authority to exercise the power of eminent domain by Sec. 321.220(10). Its claim is that Commission's authority to condemn is conferred by Sec. 227.120 which after specifying the purposes for which it may condemn in subparagraphs 1-13 states: 'If condemnation becomes necessary, the commission shall have the power to proceed to condemn such lands in the name of the state of Missouri, in accordance with the provisions of chapter 523, RSMo 1949, insofar as the same is applicable to the said state highway commission * * *.' Therefore Fire District says Sec. 523.100 limits Commission's authority so that it only can condemn for a use that will not materially interfere with the present use being made by it and so would not permit taking Fire District's...

To continue reading

Request your trial
12 practice notes
  • 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.
    • United States
    • Missouri Court of Appeals of Missouri
    • June 3, 2003
    ...the power of eminent domain being in each case insufficient. Id. at 821 (quoting State ex rel. State Highway Comm'n v. Hoester, Page 158 362 S.W.2d 519, 522 (Mo. banc 1962) (quoting 29 C.J.S. Eminent Domain § 74 at 861-62)). This doctrine does not apply to this case for two reasons. First, ......
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...not totally destroy or materially Page 422 impair or interfere with the former use. See State ex rel. State Highway Com'n v. Hoester, 362 S.W.2d 519, 522 (Mo. banc 1962). Therefore, we turn to Smithville's next point on appeal. B. Smithville's Condemnation Will Totally Destroy or Materially......
  • 406 S.W.2d 584 (Mo. 1966), 51618, Kansas City v. Ashley
    • United States
    • Missouri Supreme Court of Missouri
    • September 12, 1966
    ...as the state or federal government, * * * rather than by a * * * municipality.' State ex rel. State Highway Commission v. Hoester, Mo., 362 S.W.2d 519, 522(2, 3). The rule has been applied in respect to taking a railroad for a street, e.g., '* * * a power to appropriate the property of the ......
  • 143 S.E.2d 87 (N.C. 1965), 704, State Highway Commission v. Greensboro City Bd. of Ed.
    • United States
    • North Carolina Supreme Court of North Carolina
    • July 23, 1965
    ...The condemnor is, in essence, the sovereign.' In State ex rel. State Highway Commission v. Hoester, Missouri Supreme Court, En Banc, 362 S.W.2d 519 (1962), reh. den. 11 December, the Supreme Court of Missouri held that the State Highway Commission in condemning a right of way for a highway ......
  • Request a trial to view additional results
12 cases
  • 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.
    • United States
    • Missouri Court of Appeals of Missouri
    • June 3, 2003
    ...the power of eminent domain being in each case insufficient. Id. at 821 (quoting State ex rel. State Highway Comm'n v. Hoester, Page 158 362 S.W.2d 519, 522 (Mo. banc 1962) (quoting 29 C.J.S. Eminent Domain § 74 at 861-62)). This doctrine does not apply to this case for two reasons. First, ......
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...not totally destroy or materially Page 422 impair or interfere with the former use. See State ex rel. State Highway Com'n v. Hoester, 362 S.W.2d 519, 522 (Mo. banc 1962). Therefore, we turn to Smithville's next point on appeal. B. Smithville's Condemnation Will Totally Destroy or Materially......
  • 406 S.W.2d 584 (Mo. 1966), 51618, Kansas City v. Ashley
    • United States
    • Missouri Supreme Court of Missouri
    • September 12, 1966
    ...as the state or federal government, * * * rather than by a * * * municipality.' State ex rel. State Highway Commission v. Hoester, Mo., 362 S.W.2d 519, 522(2, 3). The rule has been applied in respect to taking a railroad for a street, e.g., '* * * a power to appropriate the property of the ......
  • 143 S.E.2d 87 (N.C. 1965), 704, State Highway Commission v. Greensboro City Bd. of Ed.
    • United States
    • North Carolina Supreme Court of North Carolina
    • July 23, 1965
    ...The condemnor is, in essence, the sovereign.' In State ex rel. State Highway Commission v. Hoester, Missouri Supreme Court, En Banc, 362 S.W.2d 519 (1962), reh. den. 11 December, the Supreme Court of Missouri held that the State Highway Commission in condemning a right of way for a highway ......
  • Request a trial to view additional results