Cole County v. Board of Trustees of Jefferson City Free Library Dist.

• Decision Date: 27 December 1976
• Docket Number: No. KCD,KCD
• Citation: 545 S.W.2d 422
• Parties: COLE COUNTY, Missouri and the County Court of Cole County, Missouri, Appellants, v. BOARD OF TRUSTEES OF the JEFFERSON CITY FREE LIBRARY DISTRICT and Roy A. Scheperle Construction Company, Respondents. 28373.
• Court: Missouri Court of Appeals

Page 422

545 S.W.2d 422

COLE COUNTY, Missouri and the County Court of Cole County, Missouri, Appellants, v. BOARD OF TRUSTEES OF the JEFFERSON CITY FREE LIBRARY

DISTRICT and Roy A. Scheperle Construction

Company, Respondents.

No. KCD 28373.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1976.

James F. McHenry, Ronald J. Prenger, Jefferson City, for appellants.

Thomas d. Graham, T. Christopher Graham, Jefferson City, for respondents.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Plaintiff Cole County filed this condemnation suit to acquire property in Jefferson City, Missouri, owned by defendant Board of Trustees of the Jefferson City Free Library District. As part of its petition, the County sought a temporary restraining order to enjoin the defendant Board and its contractor Roy A. Scheperle Construction Company from proceeding with a proposed demolition of building improvements located on the tract, and a restraining order was issued by the trial court. The defendant Board filed a motion to dismiss on the ground that the County had no right to condemn property already being used for a public purpose. After a bench trial, the trial court sustained the motion and ordered the petition dismissed; however, the restraining order was continued in effect pending appeal. The County pursues this appeal from the order dismissing its petition. We affirm.

The property in question is the site of a library building which had been occupied by the Board and used as a free public library for more than 70 years. In 1966 the Thomas Jefferson Regional Library District was formed, composed of the library districts of Jefferson City and the Counties of Cole, Miller, Maries and Osage. See § 70.210(2). (All statutory references are to RSMo 1969.) In the same year, a consulting firm was hired to make a study to determine future needs for library services in Jefferson City and surrounding areas. The consulting firm recommended a new and larger library building and that it be accompanied with parking facilities.

Pursuant to the recommendation, the Board did construct a new library building just to the south across a narrow street (also sometimes known as Hog Alley) from the old library building. The Board took occupancy of the new building in 1974. The offices of the Regional Library are located in this new Jefferson City library are located and all employees in the Jefferson City library are paid from district funds.

Early in 1975, the Board took up the question of what to do with the old building and moved to demolish that building for the purpose of creating a parking lot to serve the new building. To this end, the Board advertised for bids on the demolition of the old building and creation of a parking lot, the bids to be opened February 28, 1975.

At about this time, some public concern began to be voiced in favor of saving the old building. The City Council of Jefferson City held a meeting to which representatives of the Board were invited to explore the subject. At this meeting, the City Council asked the Board to determine the value of the old building by calling for purchase bids on it. In response to that request, the Board did advertise publicly for such bids and set the date for opening of these bids on February 28, 1975, the same date that the construction bids were to be opened.

The County was interested in acquiring additional space for its own purposes and therefore submitted a bid to purchase the old library building, which proved to be the only such bid. On February 28, the construction bids and the sole bid to purchase were opened at the same time. The bid from Scheperle for demolition of the old building and parking lot construction was then accepted. However, before Scheperle could begin its demolition work, the County commenced the present lawsuit and obtained its temporary restraining order.

The Points Relied Upon set forth in the County's brief consist solely of abstract statements of law, thereby violating Rule 84.04. However, the dispute here is between public bodies, pertains to public property and directly involves the public interest. In addition, the issues as set forth in the arguments of the parties are simple and sharp. Under these special circumstances, the requirements of Rule 84.04 will be suspended in this case.

The County concedes in its brief that '(a)s a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the forever (sic) use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, were (sic) general authority to exercise the power of eminent domain being in such case insufficient.' This concession is of course forced by the square holding to that effect in State ex rel. State Highway Commission v. Hoester, 362 S.W.2d 519, 522 (Mo. banc 1962). See also to the same effect Kansas City v. Ashley, 406 S.W.2d 584 (Mo.1966). The County further concedes that its statutory authority for condemnation, § 49.300, grants a 'mere general authority to exercise the power of eminent domain' which Hoester holds insufficient to permit the taking of property already devoted to a public use.

The County contends, however, that this case falls within two exceptions to the foregoing rule. The first exception upon which it relies is that property which was originally acquired for a public use, but which has subsequently been abandoned, may be taken under a general power of eminent domain. The application of this exception requires of course a showing that the Board has abandoned the old library building.

It is well established that in order to show abandonment, an intention to abandon must be proved. Intention is the first and paramount object of inquiry, for there could be no abandonment without the intention to abandon. In re Clark's Estate, 213 S.W.2d 645, 651 (Mo.App.1948); Northwest Missouri State Fair, Inc. v. Linville, 448 S.W.2d 274, 279 (Mo.App.1969); Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Such an intention may be inferred only from strong and convincing evidence. Gibson v. Sharp, 277 S.W.2d 672, 679 (Mo.App.1955).

In an effort to comply with this requirement, the County relies upon the Board's solicitation of public bids for purchase of the property. As stated in the County's brief: 'It is the position of the appellants that the offering of the property for sale by public bid, after the advertisement for demolition bids, indicated a clear abandonment of the public nature of the use of the property.' That argument carries no persuasion. The actual intention of the Board in soliciting these bids for purchase was convincingly explained by Mr. Priddy, the Board's president, in his testimony that the sole purpose for that solicitation 'was to meet the requests of those (the City...