St. Charles County v. Laclede Gas Co.

• Decision Date: 08 February 2011
• Docket Number: No. ED93983,Case Number: 0811-CV08506,ED93983
• Citation: St. Charles Cnty. v. Laclede Gas Co., Case Number: 0811-CV08506, No. ED93983 (Mo. App. Feb 08, 2011)
• Parties: ST. CHARLES COUNTY, MISSOURI, Plaintiff/Respondent, v. LACLEDE GAS COMPANY, Defendant/Appellant.
• Court: Missouri Court of Appeals

ST. CHARLES COUNTY, MISSOURI, Plaintiff/Respondent, v. LACLEDE GAS COMPANY, Defendant/Appellant.

No. ED93983

Case Number: 0811-CV08506

Missouri Court of Appeals

Eastern District

DIVISION FOUR

Filed: February 8, 2011

Date: November 4, 2009

Appeal from the Circuit Court of St. Charles County

Honorable Jon A. Cunningham

Introduction

At issue in this case is whether Laclede Gas Company (Laclede) or St. Charles County (County) should bear the expense of Laclede moving its utility lines when the County is making improvements to a public road. County and Laclede both argue that the other should pay to move the utility lines. The trial court granted County's motion for summary judgment and denied Laclede's motion for summary judgment. Laclede appeals.¹' The judgment of the trial court is affirmed. Because the issues involved are of general interest and importance, the case is ordered transferred to the Missouri Supreme Court. Rule 83.02.

Page 3

Factual and Procedural Background

County filed a petition for declaratory judgment, alleging the following facts, that were admitted in an "Answer and Affirmative Defenses" filed by Laclede. County is a political subdivision of the State of Missouri and is a charter county. Laclede is a Missouri corporation that provides distribution of natural gas. County is planning to widen and improve a section of Pitman Hill Road in the County for a project known as the "Pitman Hill Road Improvement Project, Phase II" (Project). Laclede has existing utility lines installed along the Project corridor that need to be moved to accommodate the Project. Laclede's utility lines that require relocation are within areas noted as dedicated public streets on five recorded subdivision plats: Muirfield Plat One, Muirfield Plat Two, Muirfield Plat Three, Crosshaven Estates, and The Summit at Whitmoor. These plats contain language dedicating their depicted streets and roadways for public use, and then designate or establish the streets as an "utility easement" or "utility easements" for the various puiposes of sanitary sewers, storm sewers, gas lines, water lines, electric lines, telephone lines and cable lines. ² County notified Laclede, as well as

Page 4

other utility companies, of the Project plan and the need for the companies to relocate certain utility facilities. Thereafter, Laclede demanded reimbursement for its estimated $120,000.00 cost to relocate its utility lines.

In the prayer of its petition, County requested that the court declare that the subdivision plats had dedicated their depicted streets or roadways to County without having concurrently dedicated independent utility easements to Laclede. County also requested that the court declare that Laclede was obligated to relocate its respective utility lines from the areas dedicated as public streets or roads at no cost to County.

Laclede filed a motion for summary judgment. County also filed a motion for summary judgment, submitting the affidavit of County Highway Manager Christopher Bostic (Bostic Affidavit) as a supporting exhibit. Bostic attested that County was planning to widen and improve a section of a public road known as Pitman Hill Road, that the planned Project improvements were necessary to improve public safety and convenience for road users, and that the Project required certain Laclede utility lines located within areas dedicated as public streets or roadways to be relocated. Bostic also attested that Laclede had complied with a 2003 request by County to relocate Laclede utility facilities from one of the areas designated as a public street in Muirfield Plat One to accommodate another County road improvement project, and had done so without requesting or receiving reimbursement for its relocation costs. Bostic further attested as to past conduct of Laclede and County in connection with other relocation requests in similar plats.

Laclede filed a Motion to Strike the Bostic Affidavit, which the trial court denied. Thereafter, Laclede filed the affidavit of Kent A. Thaemert (Supplemental Thaemert

Page 5

The trial court further found as follows. The most reasonable construction of the subdivision plats' dedication language was that the developer intended for the subdivision residents to enjoy the full benefits of public roads and this would not be possible unless County was free to exercise its normal police powers over the roads. The subdivision plats each contained unequivocal dedication language creating public roads. This language preceded any language regarding utility easements, and as between the two, the public-road dedication was the primary consideration. Laclede would prevail in the matter only if it had held title to an easement before County obtained its rights in the property. Utility facilities placed within public roads are subject to the general rule that the utility must relocate its facilities at its own expense when changes are required by public necessity, public convenience, or public security. The Missouri Supreme Court has adopted and affirmed this general rule.⁵ The past conduct of Laclede and County regarding another area depicted on one of the subdivision plats, as well as their past conduct with respect to several similarly dedicated areas was consistent with the general rule of utility relocation and County's general police powers.

The trial court granted County's motion for summary judgment and denied Laclede's motion for summary judgment. Laclede appeals from the trial court's judgment.

Standard of Review

This court's review of the trial court's grant of summary judgment is de novo. Burns v. Smith. 303 S.W.3d 505, 509 (Mo. banc 2010); ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will

Page 6

affirm where the moving party established the absence of any genuine issue of material fact and its right to judgment as a matter of law. Rule 74.04(c)(4);ITT Commercial Finance Corp., 854 S.W.2d at 380. Further, the trial court's grant of summary judgment may be affirmed under any theory supported by the record. Burns, 303 S.W.3d at 509;ITT Commercial Finance Corp., 854 S.W.2d at 387-88.

Discussion

Point I

In its first point, Laclede acknowledges that County has the power to require relocation of the utility lines to construct improvements to Pitman Hill Road. Laclede asserts that "this appeal presents the constitutional question whether the County can exercise that power without compensating Laclede for its relocation costs." Laclede argues that the trial court's judgment in favor of County results in an unconstitutional taking of Laclede's property without just compensation.

"The right to own private property is a bedrock principle in American Law." Odegard Outdoor Advertising v. Bd. of Zoning Adjustment. 6 S.W.3d 148, 149 (Mo. banc 1999). The importance of this right is reflected in the United States and Missouri Constitutions. Id. The United States Constitution provides that private property shall not "be taken for public use without just compensation." U.S. Const, amend. V. "The Fourteenth Amendment to the United States Constitution makes the Fifth Amendment's 'taking' clause applicable to Missouri." City of Excelsior Springs v. Elms Redevelopment Corp.. 18 S.W.3d 53, 58 (Mo. App. W.D. 2000). Missouri's Constitution provides that "private property shall not be taken or damaged for public use without just compensation." Mo. Const, art. I, section 26.

Page 7

In New Orleans Gaslight Co. v. Drainage Comm'n of New Orleans, 197 U.S. 453 (1905), the U.S. Supreme Court set forth the common law rule regarding whether "a utility forced to relocate from a public right-of-way must do so at its own expense." Norfolk Redevelopment & Housing Auth. v. Chesapeake & Potomac Telephone Co., 464 U.S. 30, 34 (1983). InNew Orleans Gaslight, the gas company asserted that it acquired the franchise and availed itself of the right to locate its pipes under the city streets. 197 U.S. at 458. The gas company next argued that it thereby had acquired a property right that could not be taken to accommodate a drainage system, without compensation for the required relocation of its mains and pipes. Id. The Supreme Court held that "[t]he gas company did not acquire any specific location in the streets." Id at 461. The gas company "was content with the general right to use them; and when it located its pipes it was at the risk that they might he, at some future time, disturbed, when the state might require for a necessary public use that changes in location be made." Id Further, "[i]t would be unreasonable to suppose that in the grant to the gas company of the right to use the streets in the laying of its pipes it was ever intended to surrender or impair the public right to discharge the duty of conserving the public health." Id The Court also stated that "whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare." Id In conclusion, the Court held that none of the gas company's property had been "taken" in complying with this requirement and the injury sustained was not compensable.⁶Id at 462.

Page 8

More than seventy-five years later, the U.S. Supreme Court reaffirmed the common-law rule. Norfolk Redevelopment & Housing Auth., 464 U.S. at 34-35. In that case, the telephone company was required to relocate some of its transmission facilities because of street realignment resulting from federally handed urban renewal projects. Id. at 31. Writing for a unanimous Court, then Justice Relmquist restated the "long-established common law principle." Id. at 34-35. "Under the traditional common law rule, utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities." Id. at 35. "This rule was recognized and approved by this Court as long ago as New Orleans Gas Co....