Osage Water Co. v. Miller County Water Authority, Inc.

• Decision Date: 07 July 1997
• Docket Number: No. 21022,21022
• Citation: 950 S.W.2d 569
• Parties: OSAGE WATER COMPANY, Plaintiff-Appellant, v. MILLER COUNTY WATER AUTHORITY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 569

950 S.W.2d 569

OSAGE WATER COMPANY, Plaintiff-Appellant, v. MILLER COUNTY WATER AUTHORITY, INC., Defendant-Respondent.

No. 21022.

Missouri Court of Appeals,

Southern District,

Division One.

July 7, 1997.

Motion for Rehearing or Transfer

Denied July 29, 1997.

Application to Transfer Denied

Sept. 30, 1997.

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

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

Plaintiff's assertion that it derives its power of eminent domain from § 393.020 is correct, but its unsupported contention that it is therefore not subject to § 523.010 is without merit.

Many utility companies derive their power of eminent domain from other statutes but remain subject to the procedures and limitations found in § 523.010. ⁵ Section 523.010.4 sets forth a limitation placed upon public utilities' right of eminent domain, and it states as follows:

Except as provided in subsection 5 of this section, nothing in this chapter shall be construed to give a public utility, as defined in section 386.020, RSMo, or a rural electric cooperative, as provided in chapter 394, RSMo, the power to condemn property which is currently used by another provider of public utility service, including a municipality or a special purpose district, when such property is used or useful in providing utility services, if the public utility or cooperative seeking to condemn such property, directly or indirectly, will use or proposes to use the property for the same purpose, or a purpose substantially similar to the purpose that the property is being used by the provider of the public utility service.

§ 523.010.4 (emphasis added).

A similar argument to the one Plaintiff makes was rejected in Newingham, 386 S.W.2d at 663.

The court in Newingham explained that § 523.010 " 'represents a consolidation of the various grants of the power of eminent domain to companies organized for various purposes.' " Id. at 667 (quoting Union Elec. Co. v. Jones, 356 S.W.2d 857, 859 (Mo. banc 1962)). The court held that "statutes relating to the same subject matter should be considered together and harmonized if possible so as to give meaning to all of the provisions of each." Id. at 668.

Prior to the Newingham decision, the Missouri Supreme Court also rejected a similar argument made regarding the application of § 523.010 together with another eminent domain statute. The Court held that:

where one statute deals with a subject in general and comprehensive terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized if possible, and with a view to giving effect to a consistent legislative policy, but that to the extent of any repugnancy between them the definite prevails over the general.

Union Elec. Co., 356 S.W.2d at 860; see also State ex rel. Lebeau v. Kelly, 697 S.W.2d 312, 315 (Mo.App.1985).

We think it is clear that § 523.010 and § 393.020 must be read in juxtaposition because they deal with precisely the same subject matter. Section 393.020 is the specific statute conferring upon water corporations the power of eminent domain. Section 523.010 is a more general statute which both broadens and limits the power of eminent domain. There is no repugnancy between the terms of either statute at issue. Section 393.020 "provides the original score and section 523.010 provides a concordance which makes a total orchestration." See Newingham, 386 S.W.2d at 668. Accordingly, § 523.010.4 expressly limits the power of eminent domain derived from § 393.020 by not permitting one public utility to condemn the property of another public utility where the condemnor will use the property for substantially the same purpose.

Plaintiff argues that, in any event, Defendant is not a "public utility" as that term was defined by the Missouri legislature. See § 386.020(32) (amended and re-numbered, see § 386.020(42), RSMo Cum.Supp.1996). Plaintiff maintains that because Defendant is not a "public utility," Plaintiff has the authority, as a public utility, to condemn Defendant's property. We disagree.

The Missouri legislature defined a public utility as "every ... water corporation ... as ... defined in this section, and each thereof is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this chapter." Id. The legislature defined a water corporation as:

every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees, or receivers appointed by any court whatsoever, owning, operating, controlling or managing any plant or property, dam or water supply, canal, or power station, distributing or selling for distribution, or selling or supplying for gain any water.

§ 386.020(51) (amended and re-numbered, see § 386.020(58), RSMo Cum.Supp.1996). Defendant is a not-for-profit corporation organized under § 355.025. A "not-for-profit" corporation means a corporation where no part of the income or property is distributable to its members, directors, or officers. See 18 C.J.S. Corporations §...