Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, SC 94831

Citation476 S.W.3d 913
Decision Date12 January 2016
Docket NumberNo. SC 94831,SC 94831
Parties The Metropolitan St. Louis Sewer District, Appellant, v. The City of Bellefontaine Neighbors, Respondent, Sherrell Construction, Inc., et al., Defendants.
CourtUnited States State Supreme Court of Missouri

MSD was represented by Christopher R. LaRose and Bryan E. Francis of Armstrong Teasdale LLP in St. Louis, (314) 621–5070.

The city was represented by Kevin M. O'Keefe and Robert E. Jones of Curtis, Heinz, Garrett & O'Keefe PC in St. Louis, (314) 725–8788.

Neither Sherrell Construction Inc. nor Lift Rite Inc. filed a brief or argued in this Court.

Laura Denvir Stith, Judge

The Metropolitan St. Louis Sewer District ("MSD") appeals the trial court's judgment dismissing its claims of inverse condemnation, trespass and negligence against the city of Bellefontaine Neighbors for damage to MSD sewer lines allegedly caused in the course of a city street improvement project. MSD argues that it can bring a claim under article I, section 26 of the Missouri Constitution for inverse condemnation alleging the City unintentionally took its property without just compensation. This Court disagrees. Article I, section 26 provides constitutional protection against the taking of "private" property without just compensation. It is undisputed that the sewer pipes that MSD alleges were inversely condemned are public property. This Court rejects MSD's argument that the word "private" was intended to encompass "public" property as well. The meaning of the word "private" is unambiguous, and the trial court did not err in giving the provision its plain meaning and dismissing the inverse condemnation claim.

MSD alternatively argues that the trial court erred in holding that sovereign immunity barred it from asserting claims for trespass and negligence against the City because the City has not identified a previous case in which sovereign immunity has been found to apply in suits between governmental entities. This Court rejects MSD's argument. Sovereign immunity is the rule, not the exception. Unless it is waived or a statutory or recognized common law exception, such as consent, is applicable, sovereign immunity applies. No statutory or common law exception applies here, and the federal and California cases on which MSD relies are distinguishable. The judgment is affirmed.


MSD was formed in 1954 following voter approval pursuant to article VI, section 30 of the Missouri Constitution. MSD provides wastewater treatment and sewerage facilities for the St. Louis city and county metropolitan area. In 2009, the City of Bellefontaine Neighbors, a municipality in St. Louis County, initiated a street improvement and resurfacing project and hired Sherrell Construction Inc. as general contractor for the project and P.H. Weis & Associates as engineer. Sherrell hired Lift Rite Inc. to conduct mudjacking services. Mudjacking is a process of pumping a concrete-like slurry underneath the streets to fill the voids. When Lift Rite pumped the concrete slurry under the streets, some of the slurry was pumped into and hardened inside MSD's sewer lines, allegedly requiring MSD to replace the lines to make them usable again. The alleged damage was $66,860.25.

In October 2013, MSD filed suit. In its original petition, MSD asserted a claim of trespass and negligence against Sherrell, Weis and Lift Rite and a claim of inverse condemnation against the City. The City moved to dismiss for failure to state a claim, arguing that inverse condemnation applies only in the case of a taking of private property, not public property, and that MSD failed to allege any affirmative acts by the City that caused the damage. The trial court granted the City's motion to dismiss in April 2014.

MSD filed an amended petition again setting out a count for inverse condemnation against the City and added claims against the City of negligence and trespass, alleging it was the City's participation in and direction of the activities that damaged MSD's sewer lines.1 The City again moved to dismiss, alleging that inverse condemnation does not apply to public property and that sovereign immunity applied and had not been waived. Finding "no just reason for delay," the trial court entered judgment in favor of the City and certified the ruling for immediate appeal pursuant to Rule 74.01. The court of appeals transferred the case to this Court after opinion under Mo. Const. art. V, sec. 10.


"The standard of review for a trial court's grant of a motion to dismiss is de novo. " Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). The Court treats the facts contained in the petition as true and in the light most favorable to the plaintiff. Id. "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Id.

A. Principles Governing Inverse Condemnation

Article I, section 26 of the Missouri Constitution provides "[t]hat private property shall not be taken or damaged for public use without just compensation." Condemnation is the proceeding by which a governmental entity takes private property. State ex rel. Missouri Highway & Transp. Comm'n v. Anderson, 735 S.W.2d 350, 352 (Mo. banc 1987) (superceded by statute on other grounds). Missouri statutes provide procedures through which just compensation for this taking is determined and paid in accordance with the principles set out in article I, section 26. See, e.g., sections 523.010 to 523.2152 (governing condemnation proceedings); sections 88.010 to 88.824 (governing a public entity's condemnation for public works). This Court also has adopted procedures governing condemnation in Rule 86. "Both the statutes and our rule contemplate a two-step process. First, the court must determine whether ... the condemning authority complied with the conditions precedent to bringing the action ... [and] [s]econdly, the court must establish the landowner's damages from the taking." State ex rel. Missouri Highway & Transp. Comm'n, 735 S.W.2d at 352.

At times a public entity does not initiate condemnation proceedings but nonetheless intentionally or accidentally takes private property, such as when it damages private property or mistakes boundaries or property rights. In such cases, property owners may pursue claims for "inverse condemnation." "Inverse condemnation is not an alternative to proper condemnation, but a method of ... assur[ing] that landowners receive just compensation for that which was taken." Harris v. L.P. & H. Const. Co., 441 S.W.2d 377, 381 (Mo.App.1969). Accord, State ex rel . City of Blue Springs v. Nixon, 250 S.W.3d 365, 371 (Mo. banc 2008).

B. Inverse Condemnation Claim

Here, MSD claims that the City took its property accidentally when the City or its agents filled MSD sewer pipes with slurry during the mudjacking process, thereby rendering the pipes unusuable. It sued the City for just compensation for this damage under a theory of inverse condemnation. The trial court dismissed MSD's inverse condemnation claim without issuing findings of fact or conclusions of law. When a trial court does not indicate why it dismissed the petition, this Court presumes it was for one of the reasons stated in the motion. Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008). Here, the City's motion alleged that article I, section 26 of the Missouri Constitution and Missouri statutes governing condemnation and inverse condemnation provide for just compensation only for the taking of private property and that these provisions do not entitle MSD to sue for inverse condemnation because MSD is seeking compensation for the taking of public property.

On appeal, MSD necessarily does not contest that it is a public entity,3 that the property allegedly taken is the property of a public entity, and that article I, section 26 expressly provides only that "private property shall not be taken or damaged for public use without just compensation." (emphasis added). But, MSD argues, this Court should interpret the words "private property" as used in article I, section 26 to include "public property" that is damaged by other unrelated public entities, either by ignoring the word "private," by defining "private" to include "public," or by adding by implication the word "public" because there is no good policy reason why just compensation should not be provided to public entities whose property has been taken by another public entity when private entities are so entitled.

This Court rejects MSD's arguments. MSD cites no Missouri case that has interpreted the word "private" to include "public" in its meaning. Neither does it cite any instance in which a Missouri court has ruled that article I, section 26 applies to public as well as private entities whose property has been taken by another public entity. In effect, MSD asks this Court to act as a legislature or to add a provision to the constitution that is not there because it would be good public policy. But that is not a role this Court can undertake. Independence–Nat'l Educ. Ass'n v. Independence Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). And, while MSD may be correct that the legislature would be free to extend the right to just compensation to it by statute, the legislature has not done so.

This Court must interpret article I, section 26's use of the term "private property" according to its plain meaning. Webster's Third New International Dictionary defines "private" as "belonging to or concerning an individual person, company or interest (property)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 1804, (3d ed. 1993). "Public" means "authorized or administered by or acting for the people as a political entity: government." Id. at 1836. These definitions unequivocally do not support reading the word "private" to include within its meaning the word "public." To the contrary, the words are understood as antonyms.4

For these reasons,...

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