886 S.W.2d 149 (Mo.App. S.D. 1994), 19502, State ex rel. Missouri Highway and Transp. Com'n v. Perigo

Docket Nº19502.
Citation886 S.W.2d 149
Party NameSTATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. The Honorable Timothy W. PERIGO, Judge of the Circuit Court of Newton County, Missouri, Respondent.
Case DateSeptember 19, 1994
CourtCourt of Appeals of Missouri

Page 149

886 S.W.2d 149 (Mo.App. S.D. 1994)

STATE of Missouri, ex rel. MISSOURI HIGHWAY AND

TRANSPORTATION COMMISSION, Relator,

v.

The Honorable Timothy W. PERIGO, Judge of the Circuit Court

of Newton County, Missouri, Respondent.

No. 19502.

Court of Appeals of Missouri, Southern District, First Division.

September 19, 1994

Motion for Rehearing or Transfer Denied Oct. 11, 1994.

Page 150

William D. Farrar, Senior Asst. Counsel, Judy L. Curran, District Counsel, and Rich Tiemeyer, Chief Counsel, Mo. Highway & Transp. Comm., Kansas City, for relator.

Gary C. Lentz, Spencer, Scott & Dwyer, Joplin, M. Roger Carlin, Evenson, Carlin & Lepage, Pineville, for respondent.

PROCEEDING IN MANDAMUS

SHRUM, Chief Judge.

In this mandamus proceeding, the Missouri Highway and Transportation Commission (Relator) asks that we order Circuit Judge Timothy W. Perigo (Respondent) to set aside his order dismissing Mikel R. Cope and Ann T. Cope (the Copes) and Stanley Jon Janss and Wilma Jean Janss (the Jansses) from an underlying condemnation suit.

In ordering dismissal, Respondent found that the taking of the Copes' and the Jansses' property served no public purpose, and consequently, the trial court lacked jurisdiction. No appeal was taken by Relator; instead, it filed a petition in mandamus with this court.

A threshold issue is whether mandamus is available to Relator. We hold that it is.

Based upon the undisputed facts presented, we find as a matter of law that Respondent incorrectly concluded he lacked jurisdiction. Our preliminary order in mandamus is made absolute.

FACTS

On February 9, 1994, Relator filed a condemnation petition seeking to acquire land on which to build and maintain newly relocated U.S. Route 71 in Newton County, Missouri. Defendants Cope and Janss separately moved for dismissal of Relator's petition as to them, claiming that a part of the land being taken from their respective real estate parcels would be devoted to private and not public use; therefore, the trial court lacked jurisdiction to order condemnation. After an evidentiary hearing on Relator's condemnation petition, Respondent sustained the Copes' and Jansses' motions to dismiss. In part, Respondent's order reads:

"Court reviews City of St. Louis vs. Butler 223 SW2d 831 (MO App 1949). Court finds no public convenience would be served by the condemnation. Court finds that the taking of the Copes' and Janss' property, though ostensibly for a public improvement, serves no public purpose and there is no taking for public use. Accordingly, this Court lacks jurisdiction to order [the Copes'] and [the Jansses'] properties condemned."

Galen Browning owned land adjacent to and north of the Jansses' property. Before filing the condemnation suit, Relator negotiated successfully with and acquired from Browning that part of his land deemed necessary by Relator for the Highway 71 project. Browning's remaining real estate was "landlocked," that is, it was left without public or private access to a public road. As part of its negotiated settlement with Browning, Relator agreed to include in its plans an "outer road," located on an expanded right of way, to connect Browning's otherwise landlocked property to Highway 86. 1 To provide the additional land needed for the outer road, Relator increased what it sought to take from the Jansses' tract.

A like situation existed regarding the Cope tract. Larry Albright owned land at the southeast corner of relocated 71 highway and county road 322. The new highway split Albright's property and left part of his land without access to a public road. Accordingly,

Page 151

Relator increased the proposed right of way acquisition from the Copes to include a public "outer road" that would connect Albright's isolated property to a county road.

Relator did not attempt to appeal from Respondent's order dismissing the Copes and the Jansses. Instead it brought this original action in mandamus. Counsel for the Copes and Jansses filed an answer on behalf of Respondent and a motion to quash our preliminary order or to dismiss Relator's petition for mandamus alleging this court lacks jurisdiction.

DISCUSSION AND DECISION

Is Mandamus Available?

In a brief filed on his behalf, Respondent urges that...

To continue reading

Request your trial
4 practice notes
  • 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
    ...to decide. Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 30 (1950); State ex rel. Missouri Highway & Transp. Com'n v. Perigo, 886 S.W.2d 149, 152 (Mo.App.1994). Whether a particular use is a public use is a public policy inquiry and is highly dependent on the specific facts and circ......
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...rel. State Highway Comm'n v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 68 (1949); State ex rel. Missouri Highway and Transp. Comm'n v. Perigo, 886 S.W.2d 149, 152 (Mo.App.1994); Mo. Condemnation Practice, § 2.2 (Mobar 2d ed.1993). Both prerequisites must be satisfied separately. Here, the power o......
  • Avery Contracting, LLC v. Niehaus, 041415 MOCAE, ED101592
    • United States
    • Missouri Court of Appeals of Missouri
    • April 14, 2015
    ...constitutional eminent domain authority, is well-established. See, e.g., State ex rel. Missouri Highway & Transp. Comm'n v. Perigo. 886 S.W.2d 149, 152-53 (Mo. App. S.D. 1994). Avery was fully aware of the Raebel Condemnation at the time Avery acquired the Property, and cannot now seek ......
  • 911 S.W.2d 690 (Mo.App. E.D. 1995), 69155, State ex rel. Missouri Highway and Transp. Com'n v. Bush
    • United States
    • Missouri Court of Appeals of Missouri
    • December 12, 1995
    ...is solidly within the discretion of the Commission. As stated in State ex rel. Missouri Highway and Transportation Commission v. Perigo, 886 S.W.2d 149 (Mo.App.1994) (quoting from State ex rel. State Highway Commission v. Curtis, 222 S.W.2d 64 (Mo. banc 1949) [1,2] ): The power to locate a ......
4 cases
  • 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
    ...to decide. Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 30 (1950); State ex rel. Missouri Highway & Transp. Com'n v. Perigo, 886 S.W.2d 149, 152 (Mo.App.1994). Whether a particular use is a public use is a public policy inquiry and is highly dependent on the specific facts and circ......
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...rel. State Highway Comm'n v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 68 (1949); State ex rel. Missouri Highway and Transp. Comm'n v. Perigo, 886 S.W.2d 149, 152 (Mo.App.1994); Mo. Condemnation Practice, § 2.2 (Mobar 2d ed.1993). Both prerequisites must be satisfied separately. Here, the power o......
  • Avery Contracting, LLC v. Niehaus, 041415 MOCAE, ED101592
    • United States
    • Missouri Court of Appeals of Missouri
    • April 14, 2015
    ...constitutional eminent domain authority, is well-established. See, e.g., State ex rel. Missouri Highway & Transp. Comm'n v. Perigo. 886 S.W.2d 149, 152-53 (Mo. App. S.D. 1994). Avery was fully aware of the Raebel Condemnation at the time Avery acquired the Property, and cannot now seek ......
  • 911 S.W.2d 690 (Mo.App. E.D. 1995), 69155, State ex rel. Missouri Highway and Transp. Com'n v. Bush
    • United States
    • Missouri Court of Appeals of Missouri
    • December 12, 1995
    ...is solidly within the discretion of the Commission. As stated in State ex rel. Missouri Highway and Transportation Commission v. Perigo, 886 S.W.2d 149 (Mo.App.1994) (quoting from State ex rel. State Highway Commission v. Curtis, 222 S.W.2d 64 (Mo. banc 1949) [1,2] ): The power to locate a ......