950 S.W.2d 569 (Mo.App. S.D. 1997), 21022, Osage Water Co. v. Miller County Water Authority, Inc.

Docket Nº21022.
Citation950 S.W.2d 569
Party NameOSAGE WATER COMPANY, Plaintiff-Appellant, v. MILLER COUNTY WATER AUTHORITY, INC., Defendant-Respondent.
Case DateJuly 07, 1997
CourtCourt of Appeals of Missouri

Page 569

950 S.W.2d 569 (Mo.App. S.D. 1997)

OSAGE WATER COMPANY, Plaintiff-Appellant,

v.

MILLER COUNTY WATER AUTHORITY, INC., Defendant-Respondent.

No. 21022.

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

July 7, 1997

Page 570

Motion for Rehearing or Transfer Denied July 29, 1997. Application to Transfer Denied Sept. 30, 1997.

Page 571

Gregory D. Williams, Sunrise Beach, for plaintiff-appellant.

Gary W. Duffy, Mark G. Anderson, Brydon, Swearengen & England, P.C., Jefferson City, for defendant-respondent.

BARNEY, Presiding Judge.

Osage Water Company (Plaintiff) appeals from the trial court's judgment denying its condemnation petition. Plaintiff sought to condemn certain real property located in Camden County, Missouri, so that it could commence providing public water service, notwithstanding the fact that Miller County Water Authority, Inc. (Defendant) was already providing that service from the same property Plaintiff sought to condemn.

The trial court found that Defendant was "another provider of public utility service" under § 523.010.4. 1 The trial court also determined that under § 523.010.4 Plaintiff was prohibited from condemning Defendant's property. Lastly, the court found that Plaintiff failed to prove the requirement of "necessity" for condemning Defendant's property.

I.

Plaintiff is a public utility that is in the business of producing, purifying, treating and distributing water within the City of Osage Beach, Camden County, Missouri. Plaintiff currently holds a certificate granted by the Missouri Public Service Commission 2 that gives it authority to provide and sell water service within its certificated area of Osage Beach, Camden County, Missouri. 3

Page 572

Defendant is a not-for-profit corporation that has a beneficial relationship with the Miller County Public Water Supply District No. 2, and provides water service to residents in Camden and Miller County, Missouri. Defendant has been providing this service since 1995. Defendant pumps water from the ground, treats the water, pumps it into storage towers and then to homes, meters water consumption, and charges its customers for its service. Defendant holds an operating permit issued by the Missouri Department of Natural Resources which gives it authority to dispense water to the public. However, this permit does not give Defendant the authority to sell water to the public. This is because Defendant does not currently hold a certificate from the Public Service Commission giving it a certificated area in which it can sell water to the public.

Despite not holding a certificate from the Public Service Commission, Defendant sells water service to the residents of Dogwood Park Estates and Woodland Cove in Camden County, Missouri. These two subdivisions are within Plaintiff's certificated area of service. Plaintiff asseverates that only it is authorized to provide water service to the two subdivisions.

Plaintiff raises two points of trial court error in denying its condemnation petition: (1) in determining that Plaintiff is subject to § 523.010, the general statute governing condemnation proceedings, and in determining that Defendant was a "public utility" and therefore not subject to condemnation proceedings from another public utility; and (2) in determining that it was not "necessary" for Plaintiff to condemn Defendant's property so that it could provide water service to the residents of the two subdivisions at issue. Point One is dispositive herein. Consequently, Point Two is not addressed.

II.

This was a court tried case and we therefore follow the dictates of Rule 73.01. 4 See Weaver v. Helm, 941 S.W.2d 801, 804 (Mo.App.1997). We review both the law and the evidence giving due regard to the superior position of the trial court to assess the credibility of the witnesses. Id. The judgment of the trial court must be sustained unless it is without substantial evidentiary support, unless it is against the manifest weight of the evidence, or unless it erroneously declares or applies the law. Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Eminent domain is the power to take property for public use and is an inherent power of the state. State ex rel. Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819, 820 (Mo. banc 1994). The legislature has the exclusive role of delegating the power of eminent domain to various public and private entities by statute, subject to limitations found in the United States and Missouri constitutions and other Missouri statutes. See Southwestern Bell Tel. Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965); Mo. Condemnation Practice, § 1.1 (MoBar 2d ed.1988); see, e.g., § 523.010.4. In addition to constitutional and statutory limitations, statutes which delegate the power of eminent domain to these various public or private entities are strictly construed by the courts. See id. (citing Missouri Highway & Transp. Comm'n v. Eilers, 729 S.W.2d 471 (Mo.App.1987)).

III.

In Plaintiff's first point of error, it argues that § 523.010 is not applicable to water utilities. Plaintiff, however, cites no authority for that proposition. Plaintiff avers that § 523.010 applies to every public

Page 573

utility except water utilities because the statute does not specifically mention...

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6 practice notes
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • April 21, 1998
    ...ex rel. Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819, 820 (Mo. banc 1994); Osage Water Co. v. Miller County Water Authority, Inc., 950 S.W.2d 569 (Mo.App.1997). Moreover, the Missouri Constitution provides that such "property shall not be taken or damaged for public use without j......
  • 289 S.W.3d 260 (Mo.App. W.D. 2009), WD 69643, Hurricane Deck Holding Co. v. Public Service Com'n of State
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • June 23, 2009
    ...devoted to a public use before [they are] subject to public regulation." See Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 574 (Mo.App. S.D.1997); Khulusi v. Sw. Bell Yellow Pages, Inc., 916 S.W.2d 227, 232 (Mo.App. W.D.1995). We believe the disposition of Hurrica......
  • Missouri Landowners Alliance v. Public Service Commission, 121719 MOCAE, ED107886
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • December 17, 2019
    ...v. Pub. Serv. Comm'n, 275 Mo. 483, 205 S.W. 36, 38 (1918); see also Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 574 (Mo. App. S.D.1997) (facilities must be "devoted to a public use before [they are] subject to public regulation"); K......
  • 39 S.W.3d 895 (Mo.App. E.D. 2001), ED78056, Russ v. Russ
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • March 27, 2001
    ...weight of the evidence, or unless it erroneously declares or applies the law." Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 572 (Mo. App. 1997). In the sole point on appeal, Karen Russ contends the trial court erred in denying her motion to set aside the judgment......
  • Request a trial to view additional results
6 cases
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • April 21, 1998
    ...ex rel. Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819, 820 (Mo. banc 1994); Osage Water Co. v. Miller County Water Authority, Inc., 950 S.W.2d 569 (Mo.App.1997). Moreover, the Missouri Constitution provides that such "property shall not be taken or damaged for public use without j......
  • 289 S.W.3d 260 (Mo.App. W.D. 2009), WD 69643, Hurricane Deck Holding Co. v. Public Service Com'n of State
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • June 23, 2009
    ...devoted to a public use before [they are] subject to public regulation." See Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 574 (Mo.App. S.D.1997); Khulusi v. Sw. Bell Yellow Pages, Inc., 916 S.W.2d 227, 232 (Mo.App. W.D.1995). We believe the disposition of Hurrica......
  • Missouri Landowners Alliance v. Public Service Commission, 121719 MOCAE, ED107886
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • December 17, 2019
    ...v. Pub. Serv. Comm'n, 275 Mo. 483, 205 S.W. 36, 38 (1918); see also Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 574 (Mo. App. S.D.1997) (facilities must be "devoted to a public use before [they are] subject to public regulation"); K......
  • 39 S.W.3d 895 (Mo.App. E.D. 2001), ED78056, Russ v. Russ
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • March 27, 2001
    ...weight of the evidence, or unless it erroneously declares or applies the law." Osage Water Co. v. Miller County Water Auth., Inc., 950 S.W.2d 569, 572 (Mo. App. 1997). In the sole point on appeal, Karen Russ contends the trial court erred in denying her motion to set aside the judgment......
  • Request a trial to view additional results