State ex rel. Devanssay v. McGuire

• Decision Date: 28 July 1981
• Docket Number: No. 43747,43747
• Citation: State ex rel. Devanssay v. McGuire, 622 S.W.2d 323 (Mo. App. 1981)
• Parties: STATE of Missouri ex rel. Oliver DEVANSSAY and Patrick W. Bellinger, Relators, v. The Honorable Thomas F. McGUIRE, Judge of Division 2 of the Circuit Court ofthe City of St. Louis, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 323

622 S.W.2d 323

STATE of Missouri ex rel. Oliver DEVANSSAY and Patrick W Bellinger, Relators, v. The Honorable Thomas F. McGUIRE, Judge of Division 2 of the Circuit Court ofthe City of St. Louis, Missouri, Respondent.

No. 43747.

Missouri Court of Appeals, Eastern District, Division Four.

July 28, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

William J. Travis, St. Louis, for relators.

Gerard T. Carmody, St. Louis, for respondent.

Stolar, Heitzman, Eder, Seigel & Harris, Charles A. Seigel, Harvey A. Harris, St. Louis, for amicus curiae Wash. U., etc.

Michael E. Hughes, Asst. City Counselor, St. Louis, for amicus curiae City of St. Louis.

Lashly, Caruthers, Thies, Rava & Hamel, Rexford H. Caruthers, St. Louis, for amicus curiae Jean Carter, Gary & Jean Rummelhoff, Barry & Patricia Suntrup, Carlton & Mary Pearse, Charles F. & Jenny Kade, and Marilyn Nathan.

SMITH, Judge.

This matter is before us following the issuance of our preliminary writ of prohibition. Relators are the owners of real estate located on Waterman Avenue in the City of St. Louis. Waterman Redevelopment Corporation (Waterman) is an urban redevelopment corporation organized under the provisions of Chapter 353 RSMo 1978. Pursuant to Ordinance 57882 of the City of St. Louis it has been given authority to redevelop the block of Waterman Avenue containing relator's property. As part of that authority Waterman has been granted the power of eminent domain to acquire property necessary to implement its redevelopment plan. Following unsuccessful negotiations to acquire relators' property, Waterman filed its suit for condemnation. Relators challenged Waterman's right to condemn on the basis that the ordinance approving the development plan and granting eminent domain was arbitrary and void because the development plan submitted by Waterman and approved by the city did not contain the "detailed statement of the proposed method of financing the redevelopment" required by the redevelopment enabling Ordinance, 29.080(15). Following an evidentiary hearing respondent upheld the validity of Ordinance 57882, denied relators' motion to dismiss Waterman's petition and ordered condemnation and the appointment of commissioners to determine the relators' damages from the taking. Our preliminary writ followed, prohibiting any further proceedings by the trial court. We now quash that preliminary writ.

Initially, the parties have joined issue over the applicability of prohibition in this case. The case law in this state concerning the use of prohibition is not totally consistent nor reconcilable. As good a statement as any of the utilization of the writ is found in State ex rel. Henry v. Cracraft, 237 Mo.App. 194, 168 S.W.2d 953 (1943) (1-4).

"The purpose of the writ of prohibition is to prevent an inferior court from assuming jurisdiction with which it is not legally vested, in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie as a rule for grievances which may be redressed in the ordinary course of judicial proceedings by other remedies provided by law. It is to be used with great caution and forbearance for the furtherance of justice and to secure order and regularity in judicial proceedings and should be used only in cases of extreme necessity. Nor will it ordinarily issue in a doubtful case."

Condemnation proceedings, by their nature, present circumstances where the writ may have application. Two determinations must be made in a condemnation case. First, the court must determine whether the condemnation is authorized by law i. e.: is there jurisdiction over the condemnation proceeding. This determination may involve one or more of several requirements is there constitutional, statutory or ordinance authority for the exercise of eminent domain (State ex rel. Gove v. Tate, 442 S.W.2d 541 (Mo. banc 1969)); is the taking for a public use (State ex rel. Gove v. Tate, supra; State ex rel. Clothier v. Yeaman, 465 S.W.2d 632 (Mo. banc 1971)); has the condemning authority complied with the conditions precedent to bringing the action (State ex rel. Weatherby Advertising Co., Inc. v. Conley, 527 S.W.2d 334 (Mo. banc 1975)). The trial court's determination on these issues, favorable to the plaintiff is not appealable. State ex rel. Clothier v. Yeaman, supra.

Secondly, the court must establish the landowner's damages from the taking. At that stage, commissioners are appointed to assess the landowner's damages and upon payment of the commissioners' award the condemning authority acquires the property and may proceed to utilize it as prayed in its petition for condemnation. Either party may request a jury trial to establish the landowner's damages and only after that trial has concluded is the case appealable. At that time the question of the authority to condemn first becomes an issue for appeal. Obviously, by the time the matter can be resolved by an appellate court the property condemned has been utilized by the condemning authority and is no longer in the condition it was when the condemnation began. Frequently, as will be true in the case before us, the utilization of the property by the condemning authority will have resulted in the destruction of improvements on the property or a change in its nature so as to render it unusable for its prior purposes. In such a situation it may well be impossible to adequately redress the landowner for his loss resulting from the invalid taking. ¹

In recognition of this practical result, the appellate courts have utilized the writ of prohibition to review challenges to the authority to condemn "where usurpation of jurisdiction or an act in excess of same is clearly evident." State ex rel. Clothier v. Yeaman, supra. See also State ex rel. Gove v. Tate, supra; State ex rel. Weatherby Advertising Co., Inc. v. Conley, supra. ² Of course, final determination that that criteria has been met cannot be made until after the issuance of the preliminary writ, briefing and argument. The appellate court in issuing its preliminary writ does not decide that prohibition is proper; it only decides that on the application before it reasonable grounds exist to believe that an improper exercise of jurisdiction having consequences sufficient to justify a writ may have occurred. This is a discretionary determination.

Under the redevelopment plan here, the property of relators is to be acquired in order to demolish the four-family apartment on it. If the trial court lacks jurisdiction to entertain the condemnation proceeding the damage to relators from the destruction of their property prior to appeal may well be beyond redress and would result in injustice. We conclude that prohibition is a proper method to prevent such alleged injustice. We turn to the merits.

Relators place their reliance on Maryland Plaza Redevelopment Corp. v. Greenberg, 594 S.W.2d 284 (Mo.App.1979). In that case we recognized that the power of eminent domain is awesome in a society structured upon the right of private ownership of property. Before that power may be exercised it must be demonstrated that the use for which the taking occurs is a public one. In Annbar Associates v. West Side Redevelopment Corp., 397 S.W.2d 635 (Mo. banc 1965), the Supreme Court upheld Chapter 353, RSMo 1959, the Urban Redevelopment Corporation's Law, against an attack that it allowed the taking of private land for a private use. The thrust of that opinion is that redevelopment of blighted urban areas is in the public interest and is therefore a public use. Chapter 353 constitutes the statutory authority upon which the St. Louis ordinances are based and under which Waterman exists. Implicit in the "public use" concept is the idea that authority for redevelopment, and for the exercise of eminent domain in connection therewith, should be granted only for projects which will in fact provide the redevelopment for the blighted area contemplated by Chapter 353. St. Louis' enabling Ordinance, 29.080, contains a listing of information deemed necessary by the Board of Aldermen (and its advisor the Community Development Agency) to enable it to made its legislative determination to approve or disapprove a specific redevelopment plan. Obviously, any viable...