City of Kansas City v. Hon, WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLAURA DENVIR STITH
Citation972 S.W.2d 407
PartiesCITY OF KANSAS CITY, Missouri, Appellant, v. Stephen HON, et al., Respondent, Unborn and Unknown Heirs, Respondents. 54099.
Docket NumberNo. WD,WD
Decision Date21 April 1998

Page 407

972 S.W.2d 407
CITY OF KANSAS CITY, Missouri, Appellant,
Stephen HON, et al., Respondent,
Unborn and Unknown Heirs, Respondents.
No. WD 54099.
Missouri Court of Appeals,
Western District.
April 21, 1998.
Motion for Rehearing and/or Transfer to
Supreme Court Denied June 2, 1998.
Application for Transfer Denied
Aug. 25, 1998.

Page 408

Walter J. O'Toole, Acting City Atty., Dorothy L. Campbell, Asst. City Atty., Kansas City, for appellant.

Jerome E. Brant, Steven D. Wolcott, Liberty, Quint Shafer, Weston, for respondents.


LAURA DENVIR STITH, Presiding Judge.

The City of Kansas City, Missouri, appeals the trial court's denial of its Petition seeking to condemn eight tracts of land in Platte County for the purpose of expanding Kansas

Page 409

City International Airport. We find that the trial court erred in its determination that the condemnation was neither for a public use nor necessary to effectuate that use. Therefore, we reverse the judgment and remand for further proceedings in condemnation consistent with this opinion.


On October 5, 1995, the City Council of the City of Kansas City, Missouri, passed Ordinance No. 951275. The ordinance declared it was necessary for the city to acquire, by either purchase or condemnation, fee simple title to eight tracts of land in Platte County for the purpose of expanding Kansas City International Airport (KCI). Three of these tracts, designated as Tracts 101, 102E, and 102W, are completely within the city limits of Kansas City, Missouri. The remaining five tracts, designated as Tracts 116, 123, 124, 125, and 133A, are partially within the city limits and partially outside the city limits of Kansas City, Missouri (the City).

Attempts by the City to purchase the eight tracts from their owners were unsuccessful. On July 1, 1996, the City, therefore, filed a Petition in Condemnation seeking to condemn these eight tracts through use of the power of eminent domain. The owners of the eight tracts (Respondents) opposed the proposed condemnation. The circuit court held a hearing on September 16, 1996. On February 7, 1997, the trial court entered judgment against the City, denying condemnation of all eight tracts of land. This appeal by the City followed.


This Court will reverse the trial court's decision in a court-tried case such as this if the decision is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court's findings of fact where the evidence is conflicting, but not to its determinations of law. Id.; Osborn v. Home Ins. Co., 914 S.W.2d 35, 37 (Mo.App.1996).


The power of eminent domain is the inherent power of a State to take private property. The power of eminent domain extends only to the taking of property for a public use, except in two specific instances which are not relevant here. 1 Eminent domain cannot be used by the State to involuntarily take private property for private use. Mo. Const. art. I, § 28; State 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 just compensation." Mo. Const. art. I, § 26.

The burden is on the party seeking condemnation to prove both that the condemnation is for a public purpose and that it is a matter of public necessity. Both findings are jurisdictional prerequisites to condemnation. 2 State ex 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 of eminent domain was exercised not by the State but by the City of Kansas City, Missouri. The power of eminent domain does not inherently belong to municipalities, but the State may delegate this authority to cities or other public and private entities, subject to constitutional limitations.

Page 410

Missouri Cities, 878 S.W.2d at 820-21; Osage, 950 S.W.2d at 572.

The Legislature has specifically delegated the power of eminent domain to cities to acquire property to "establish, construct, own, control, lease, equip, improve, maintain, operate, and regulate, in whole or in part, alone or jointly or concurrently with others, airports or landing fields for the use of airplanes and other aircraft." §§ 305.170, 305.180 RSMo 1994. It has also specifically determined that condemnation for this purpose constitutes a public use and is a matter of public necessity, stating: "Any lands acquired, owned, controlled or occupied by such cities, villages, towns or counties for the purposes enumerated in sections 305.170 and 305.180 hereof shall and are hereby declared to be acquired, owned, controlled, and occupied for a public purpose and as a matter of public necessity." § 305.190 RSMo 1994.

The issue here is whether the circuit court erred in determining that the condemnation of the eight tracts at issue in this case was not for a public purpose and was not a matter of public necessity. For the reasons set forth below, we determine that the circuit court erred in its determination of both issues.


Appellant City argues that the condemnation was for a public purpose. In support, it notes that the legislature specifically determined in Section 305.190, quoted above, that condemnation for the purpose of an airport use is condemnation for a public purpose. Respondents counter that the legislature's finding that condemnation for airport-related purposes is a public purpose is of no import, for the Missouri Constitution requires that the courts make an independent determination of whether a condemnation is for a public use or purpose. 3

The Missouri Constitution does make the determination of whether a use is a public use a question for judicial rather than legislative determination. It specifically states that "[w]hen an attempt is made to take private property for a use alleged to be public, the question of whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public." Mo. Const. art. I, § 28. We, therefore, agree with Respondents that we, like the trial court, are required to make an independent determination whether the use at issue here is a public use.

In so determining, neither the trial court nor this Court can give deference to the general legislative declaration in Section 305.190 that airport uses are public uses. Arata v. Monsanto Chemical Co., 351 S.W.2d 717, 721 (Mo.1961); Perigo, 886 S.W.2d at 152. Rather, the courts must consider the evidence presented at the hearing on the condemnation to determine whether the purpose of the condemnation is a public one. See City of Kansas City, Missouri v. Kindle, 446 S.W.2d 807, 814 (Mo.1969). We believe the fact that the legislature has determined that airport uses are public uses is, however, one piece of factual evidence which we are entitled to consider in reaching our judgment, just as would be a contrary legislative determination. Such legislative findings are simply not determinative or entitled to deference.

In this case, the trial court determined as a factual matter that:

the tracts of land sought to be condemned by the City of Kansas City, Missouri, are sought by Plaintiff primarily for future commercial, industrial-aeronautical-related developments and that Plaintiff was seeking to gain control of the proposed condemned tracts of land to avoid potential future incompatible development and to offer this property, for probable lease, to future potential developers of large aircraft-related industries.

The parties do not contest the sufficiency of the evidence to support these findings, nor could they. At the hearing on the condemnation, John Soloman, Director of Aviation for

Page 411

the City, testified that the City desired to acquire the tracts so that it could expand the airport to its natural boundaries. The airport is currently bounded on the north and east by Interstate 29, except for a small portion of Tract 133A. The airport is bounded on the west by Interstate 435, except for an alcove containing the other seven tracts. Acquiring the land in question, thus, would expand the airport all the way west to Interstate 435 and north and east to Interstate 29.

Mr. Soloman also testified that condemning the eight tracts would protect the airport from incompatible development, protection which is not currently possible through zoning because a portion of the land sought to be acquired is not within the city limits of Kansas City, Missouri. To date, Platte County has cooperated with Kansas City in regard to zoning issues, but it would not be prudent to simply assume such cooperation will necessarily continue for the next twenty years. Good planning requires the City to condemn the property now and keep its use within the City's control.

Mr. Soloman and Douglas Johnson, Assistant Director of Aviation for the City, also testified concerning how and why condemning the tracts now was necessary for future airport development and why it would help make the airport self-sustaining, as federal law requires it to attempt to be. In particular, Mr. Johnson mentioned the City's prior negotiations with McDonnell Douglas for an aircraft manufacturing facility and an adjacent runway at KCI.

Mr. Soloman similarly testified to why the City needed the land, stating, "For a period of over...

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