Harris v. Missouri Dept. of Conservation

Decision Date16 August 1988
Docket NumberNo. WD,WD
Citation755 S.W.2d 726
PartiesBrown HARRIS II, Trustee for the Christopher Harris Trust, Appellant, v. MISSOURI DEPARTMENT OF CONSERVATION, Respondent. 39941.
CourtMissouri Court of Appeals

Robert B. Thomson, Kansas City, for appellant.

Robert J. Swift, Jr., Jefferson City, for respondent.

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

LOWENSTEIN, Judge.

This is a case for damages for inverse condemnation. It comes on for appeal following the granting of the dismissal of plaintiff's petition for failure to state a cause of action. The plaintiff is trustee for a trust which owns a 888 acre tract of land which (totally) encompasses a 230 acre lake. The petition alleges that in May, 1983, "Plaintiff notified the Missouri Department of Conservation of its intent to commercially fish the property and to seek Defendant's assistance and knowledge in undertaking the same. However, Defendant, without a hearing or right to appear, declared that such lake was 'water of the state' and fish could not be removed commercially therefrom without violating Chapter 252 of the Revised Statutes of Missouri and the rules and regulations of the Conservation Commission." The petition states the right to commercially fish the lake was a valuable property right taken by the state without compensation. The petition continues: "It was the Defendant's design and goal to take from the Plaintiff this property right without just and true compensation and without due process of law. To further this objective, Defendant desired to acquire Plaintiff's property for the public at the lowest price possible with no regard for fair market value." The plaintiff went on to state the defendant Commission caused a criminal charge to issue for the attempt to commercially fish a state waterway.

There are additional twists to the case making it somewhat unusual. The Commission made no attempt to obtain the land under eminent domain, but, according to the trust, the denial of commercial fishing rights and the pressing of charges by the Commission was done to cause the trust financial distress, and "[A]s a result of foreclosure proceedings on the property instituted by the lienholder due to the cessation of funds from the fishing operation, Plaintiff was compelled to sell the property to Defendant at less than its fair market value in order to avoid the loss of Plaintiff's entire equity therein." Faced with foreclosure the dismissed petition states, it sold the land in response to a "take it or leave it" non-negotiable offer by the Commission. So, in fact, the trust sold the property at below market value. It is for this difference that the trust prayed for damages of $1,250,000. The crux of the complaint is the Commission had "a plan to acquire Plaintiff's property through inverse condemnation without paying fair and just compensation." The trial court sustained the Commission's motion to dismiss for failure to state a claim.

The plaintiff, prior to this lawsuit, and without the aid of an attorney, filed a civil suit in United States District Court for a 42 U.S.C. Section 1983 action. The dismissal of federal suit was upheld in Brown Harris II v. Missouri Conservation Commission, 790 F.2d 678 (8th Cir.1986), for the reasons the plaintiff could have requested state judicial review of the designation of the lake as state waters, and that they could have brought an inverse condemnation action in state court.

The issue of authority is important to any consideration of action by a state agency. The Missouri Constitution vests in the conservation commission:

The control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state, including hatcheries, sanctuaries, refuges, reservations and all other property owned, acquired or used for such purposes and the acquisition and establishment thereof, and the administration of all laws pertaining thereto....

Missouri Const. Art. IV, § 40(a). "The Commission may acquire by purchase, gift, eminent domain, or otherwise, all property necessary, useful or convenient for its purpose...." Mo. Const. Art. IV, § 41. Missouri statutes create a department of conservation to be headed by the conservation commission. § 252.002.1, R.S.Mo.1986. All the powers, duties and functions of the conservation commission have been transferred to the department of conservation. § 252.002.2.

In the same chapter, ownership and title to all wildlife of and within the state is declared to be in the State of Missouri. § 252.030. A person who fails to comply with or violates this law or any such rules and regulations does not acquire any title, ownership or possessory right in wildlife, and any person pursuing, taking, killing, possessing or disposing of wildlife is deemed to consent that title to the wildlife remains in the State of Missouri for purposes of control, management, restoration, conservation and regulation. Id. No wildlife shall be pursued, taken, killed, possessed or disposed of except in the manner, to the extent and at the time or times permitted by the rules and regulations. § 252.040. Wildlife includes fish. § 252.020(3).

Pertinent provisions of the Code of State Regulations are found at 3 C.S.R. 10. The Department of Conservation's definition of waters of the state:

(44) Waters of the state: All rivers, streams, lakes and other bodies of surface water lying within or forming part of the boundaries of the state which are not entirely confined and located completely upon lands owned or leased by a single person or by two (2) or more persons jointly or as tenants in common and including waters of the United States lying within the state. Waters of the state will include any waters which have been stocked by the state or which are subject to movement of fishes to and from waters of the state.

3 C.S.R. 10-11.805. The permit requirements and exceptions of chapter 5:

(1) Any person who pursues, takes, transports, ships, buys, sells, possesses or uses wildlife in any manner must first obtain the prescribed hunting, fishing, trapping, or other permit, or be exempted ..., with the following exceptions.

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(k) Any Missouri resident who is the owner of land that wholly encloses a body of water or any member of his immediate household, may fish without permit in said waters. In the case of corporate ownership, this privilege shall apply to those corporate owners whose domicile is on such corporate-owned land.

3 C.S.R. 10-5.205.

(2) A permit for the taking of wildlife may be issued only to an individual and may be used only by the individual to whom it is issued.... Miscellaneous and commercial permits which do not provide for the taking of wildlife may be issued to a firm, organization or partnership.

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(4) The commission may suspend, revoke or deny a permit for cause, but not until the applicant shall have been afforded reasonable opportunity to be heard by the commission or its authorized representative.

3 C.S.R. 10-5.215. Under 3 C.S.R. 10.10, the basic requirement for persons commercializing in wildlife is that they possess the prescribed permit and keep records of their transactions available for inspection. 3 C.S.R. 10-10.705.

Questions concerning the Department of Conservation's authority to designate the subject lake as "waters of the state" and thereby prevent appellant's commercial fishing venture are evident from the Department's own rules. First, the definition for waters of the state excludes certain waters entirely confined and located completely upon land owned or leased by a single person or by two or more jointly or as tenants in common. Second, the permit requirements (which may not be at issue here since it is not alleged a permit was applied for) include an exception for owners of land, including corporate owners, which wholly encloses a body of water. Here, the petition alleges a circumstance of total enclosure. It is not clear, however, from the rules what impact ownership of the land by the trust may have in terms of the waters of the state definition, or in terms of the permit requirement. What is clear is that the issue of the Department of Conservation's authority to designate the lake as "waters of the state" should be resolved at trial.

The issue in this case (assuming the Department of Conservation properly exercised its authority in its designation of the lake) is whether or not the plaintiff stated in his pleadings a cause of action for inverse condemnation.

The just compensation clause of the fifth amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for a public use without just compensation. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). Moreover, the Missouri Constitution, at Art. I., section 26, also contains a similar just compensation clause. Under the fifth and fourteenth amendments a landowner has a right to challenge land use regulations by way of a suit for inverse condemnation. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The inverse condemnation action, was originally conceived and developed, to give a landowner a remedy at law when a condemnor physically accomplished a taking or damaging of private property, (which was in result like an act of eminent domain) but which was carried out with none of the procedure nor compensational requirements of an eminent domain procedure. 3 Nichols on Eminent Domain, § 8.1[a] (1978). Missouri courts recognize a cause of action for inverse condemnation where private property has been taken or has been damaged for public use. Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo.1964). To state a claim for inverse condemnation, a plaintiff must allege his property was taken or damaged by the...

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