City of Blue Springs, Mo. v. Central Development Ass'n

• Decision Date: 13 November 1984
• Docket Number: No. WD,WD
• Citation: 684 S.W.2d 44
• Parties: The CITY OF BLUE SPRINGS, MISSOURI, Appellant, v. CENTRAL DEVELOPMENT ASSOCIATION, et al., Respondent. 34848.
• Court: Missouri Court of Appeals

Page 44

684 S.W.2d 44

The CITY OF BLUE SPRINGS, MISSOURI, Appellant, v. CENTRAL DEVELOPMENT ASSOCIATION, et al., Respondent.

No. WD 34848.

Missouri Court of Appeals Western District.

Nov. 13, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled

and Denied Dec. 26, 1984.

Application to Transfer Denied

Feb. 26, 1985.

Tom J. Helms, Kansas City (Collet, Borich & Helms and Russell D. Jacobson, Kansas City, of counsel), Robert H. Markey, Edwards & Markey, Blue Springs, for appellant.

Thomas H. Bennett, Reorganized Church of Jesus Christ of Latter Day Saints, Independence, Dick H. Woods, Michael W. Lerner, Stephen J. Owens, Stinson, Mag & Fizzell, Kansas City, for respondent Central Development Ass'n.

William A. Piedimonte, Piedimonte & Piedimonte, P.C., Independence, for respondent Community Water Co., Inc.

C. William Kramer, Cochran, Kramer, Kapke & Willerth, Independence, for respondent Atherton Levee Dist.

Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

The City of Blue Springs, a fourth class city, appeals from the trial court's dismissal of its petition to condemn land owned by respondents, Central Development Association (CDA), Community Water Company (CWC), and the Atherton Levee District (ALD), for the purpose of constructing a municipally owned water system. Blue Springs claimed that in 1979 the Missouri Water Company informed them that it would not renew its 20-year contract to supply water to the city. This contract, from which came the entire supply of city water expires December 6, 1990. After instituting a study of the current situation, future water needs, and several alternative sources, Blue Springs decided on a water source in the Atherton Bottoms, on land in question near the Missouri River which has substantial subsurface aquifer (underground river or reservoir). In essence the city sought to sink wells and extract water from the underground supply and build a treatment plant near the wells. Easements also were to be obtained to drain off the waste from the treatment plant and to pipe the water to the city.

CDA is the real estate title holding corporation for the Reorganized Church of Latter Day Saints (RLDS) and owning 6,000 acres in the Atherton Bottoms, it was the principal entity concerned in the Blue Springs plan. CWC is a corporation which acquired the subsurface water rights to the CDA land and that of some surrounding neighbors. The president of CDA's farm division was named as the president of CWC. CDA has farmed the land for years and has irrigated those lands from the aquifer. ALD is a Missouri statutory public service corporation whose purpose, since 1923, has been to reclaim land in the Atherton Bottoms and protect it from flooding and erosion from the Missouri River.

The following events are not in dispute:

March 18, 1981 Blue Springs first contacted CDA (35 contacts followed over the next 16 months)

March 25, 1981 Blue Springs made only contact with ALD

June 2, 1981 Voters passed a nineteen million dollar bond issue to build the water plant

May 3, 1982 The ordinance in question was filed

May 10, 1982 CWC incorporated

May 17, 1982 Blue Springs passed ordinance declaring a public necessity for the acquisition of land and construction of a water treatment plant on the land in question

June 16, 1982 Blue Springs attorney offered CDA $132,200 for the land (about 60 acres)

June 30, 1982 CWC obtained subsurface water rights from CDA July 12, 1982 Blue Springs ratified the offer to CDA by resolution

August 6, 1982 Blue Springs filed condemnation petition, defendants were CDA, CWC and ALD

Following three days of receiving evidence on the motion, the trial court said in its order the motion to dismiss was sustained on points 8, 9 and 10 of the Joint Suggestions in Support submitted by CDA, CWC and ALD:

8. Any negotiations held with Defendant CDA were not in good faith.

9. Plaintiff is precluded from condemning the water it seeks because the property is devoted to a public use by the Water Company. (i.e. CWC)

10. Plaintiff is precluded from condemning the rights it seeks in the Levee District's property because that property is already devoted to a public use.

Included with the order, was the trial court's three page memorandum which elaborated on its reasons for sustaining the motion to dismiss. These additional reasons elaborated on in the memo, though not included in the formal order are as follows: First, it said Blue Springs' public use is not superior to the respondents', and that the proposed use of the land as a water treatment plant would totally destroy or materially impair CDA's and CWC's use. Secondly, the trial court said that because the sole purpose of the condemned land was for water extraction, the negotiations should have included a reference to the subsurface water's value. Blue Springs' "token offer" implied that they "may have negotiated in less than good faith with those Defendants." Lastly, the trial court refers to "the numerous undisputed technical deficiencies in Plaintiff's petition" as another reason for dismissing the petition.

The memorandum contains several matters on which the court appeared to rely that were not directly or indirectly included within the three specific grounds on which the motion was granted.

The scope of review in this case is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that review the standards of no substantial evidence, being against the weight of the evidence and erroneous application of the law are here applicable to the judgment entered. City of Cape Girardeau v. Robertson, 615 S.W.2d 526, 530 (Mo.App.1981).

As a preliminary matter, there is no dispute the appellant Blue Springs has authority to condemn private property for public use pursuant to § 88.667 and § 79.380 RSMo 1978. Nor is there a dispute that the building of a water treatment plant is indeed a public use. The respondents argue (albeit in their statement of facts and not as a point relied on) that Blue Springs has shown no true necessity for this plant, that the projections for daily water consumption were overestimated, that the choice of another area would be more economical, and the true purpose for the condemnation was for Blue Springs to make a profit. These arguments are not really germane to this appeal and the specific reasons for dismissal of the condemnation petition. (Failure to negotiate in good faith, and two of the parties being prior public utilities.) However, the question of whether a taking of any given private property is "necessary" for the condemnor's purpose and the extent and exact location of the property to be taken are matters for political or legislative determination. Mapco, Inc. v. Williams, 581 S.W.2d 402 (Mo.App.1979). As the Missouri Supreme Court held in In the Matter of Proceedings to Grade, etc., 270 S.W.2d 863, 868 (Mo.1954), "the legislative body of the municipality, in the exercise of its powers in matters of the kind here involved, is vested with a discretion not subject to review by the courts, unless it is affirmatively shown to have been exercised arbitrarily, fraudulently, or oppressively." Parking Systems Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo.1974). Whether the city could have sought water elsewhere as opposed to the condemnation of this land and construction of a well and a water works is not a part of this appeal.

Although alluded to in the briefs and the order, the issue of necessity and the choice as to filling of those water needs of the city are not relevant in this case.

TECHNICAL DEFICIENCIES ERROR IN LEGAL DESCRIPTION

This court will first address the last point raised in the memorandum. As indicated earlier, the trial court's order was accompanied by a memo which set out additional reasons for dismissal, including "numerous undisputed technical deficiencies" in the petition. The "deficiencies" must mean an incorrect legal description of the land both in the ordinance and in the petition. In particular, CDA's real estate was listed as being part of Township 50, when it should have been 51. The Missouri Supreme Court said in State v. Allison, 365 S.W.2d 563, 565 (Mo. banc 1963), that errors in description or a change in plan in a condemnation petition may be taken care of adequately by amendment. See also Jackson County v. Hall, 558 S.W.2d 791, 793 (Mo.App.1977), where this court held it was an abuse of the trial court's discretion not to permit condemnor to amend its petition on day of trial. Respondents argue that the 1932 appellate decision of Sassman v. State Highway Commission, 45 S.W.2d 1093 (Mo.App.1932), controls this case. But in Sassman the error in the legal description was not raised until after the condemnation proceedings were complete and the condemnee had been paid money for the wrong piece of land. Even the Allison court agrees that after a commissioners' report has been filed, amendments will generally not be permitted which would include different lands and which would prejudice the rights of the condemnee, or substantially change the issues. 365 S.W.2d at 565. Likewise, in State ex rel State Highway Commission v. Spell, 665 S.W.2d 650, 652 (Mo.App.1984), a motion to amend a property's description after the commissioner's report was filed and the proceedings concluded, was found untimely. In the present case the proceedings have not progressed past the petition stage. No commissioner's report has been filed, let alone a final determination of value. Therefore, the amendments, which would be so minor so as not to be a substantial change, will not prejudice the rights of the defendants, so a motion to amend would be timely. Despite the error, all concerned appeared to know exactly where the wells would be sunk and the waterworks built.

Respondents also argue that apart from amending the petition, the Blue Springs' ordinance has the same defect in the legal description. This too...