State ex rel. Missouri Water Co. v. Bostian

• Decision Date: 13 June 1955
• Docket Number: No. 44753,44753
• Citation: 365 Mo. 228,280 S.W.2d 663
• Parties: STATE of Missouri ex rel. MISSOURI WATER COMPANY, a Corporation, Appellant, v. Kenneth V. BOSTIAN, Mary Bostian, and The Atchison, Topeka and Santa Fe Railway Company, Respondents.
• Court: Missouri Supreme Court

Page 663

280 S.W.2d 663

365 Mo. 228

STATE of Missouri ex rel. MISSOURI WATER COMPANY, a Corporation, Appellant, v. Kenneth V. BOSTIAN, Mary Bostian, and The Atchison, Topeka and Santa Fe Railway Company, Respondents.

No. 44753.

Supreme Court of Missouri, En Banc.

June 13, 1955.

Rehearing Denied July 11, 1955.

J. Marcus Kirtley, Rufus Burrus, Independence, Gerald K. Presberg, St. Louis, Carter, Bull & Baer, St. Louis, of counsel, for relator-appellant.

Byron A. Stewart, Independence, Lathrop, Righter, Blackwell & Parker, Richard S. Righter, William M. Stapleton, Kansas City, for respondents Kenneth V. Bostian and Mary Bostian.

John H. Lathrop, Sam D. Parker, Henry W. Fox, Kansas City, for respondent Atchison, T. & S. F. R. Co.

DALTON, Acting Chief Justice.

Action to condemn certain specifically described real estate in Jackson County for specifically stated purposes. Respondents filed motions to dismiss relator's first amended petition, which motions were sustained and the petition dismissed with prejudice. The Missouri Water Company, a corporation, designating itself as plaintiff and relator, appealed to the Kansas City Court of Appeals. That court affirmed the judgment of dismissal. State ex rel. Missouri Water Co. v. Bostian, Mo.App., 272 S.W.2d 857. On motion of appellant the cause has been ordered transferred to this court and we shall determine the cause as on original appeal. Art. V, Sec. 10, Constitution of Missouri 1945; Supreme Court Rule 2.06, 42 V.A.M.S.

The first amended petition is, in part, as follows:

'Comes now the State of Missouri, at the relation of the use of (sic) Missouri Water Company, a corporation, and for its cause of action herein, alleges and avers as follows:

'1. That the Relator herein, Missouri Water Company, is a corporation, organized and existing under the laws of Missouri, and engaged in the business of producing, purifying, treating and distributing water to inhabitants of the City of Independence, Jackson County, Missouri, and to other inhabitants and customers in the area adjacent to said City of Independence, Missouri. That it is a public utility and is subject to the lawful orders and control of the Missouri Public Service Commission. That its principal office is located at 123 West Kansas, Independence, Missouri. That the Relator specifically possesses the power of eminent domain under Sections 393.010 to Sections 393.100 RSMo 1949, V.A.M.S., inclusive.

'2. That Relator has planned and is now ready to produce, treat and distribute water to its customers from subterranean streams through wells. Relator states that it is necessary for the production, treatment and distribution of water to its customers, and to adequately and economically supply the demand of its customers, that Relator take, acquire, hold, use and enjoy the ownership and legal title and immediate possession thereof to the real estate hereinafter described. That said lands will be used for the purpose of taking water from the earth beneath the lands and from underground streams, and to erect dams and levees thereon and to lay and construct pipes and mains for the conveyance of water in, over and through said lands and in, over and through the lands situated between the source of water supply and the point of delivery of said water, and to acquire sufficient lands upon which to build works for the pumping, storage, distribution and management of water.

'3. Relator states that the lands which are being condemned lie within Jackson County, Missouri; that said lands, properties or interest, ownership of, or legal rights in which are, or may be, claimed and asserted by defendants Kenneth V. Bostian, Mary Bostian * * * and Atchison, Topeka & Santa Fe Railroad, a corporation, are as follows, to wit: * * *.'

Following the specific description of the property sought to be condemned, the petition contains other allegations including the following:

'5. That Relator has been unable to agree with the defendants herein, upon the proper compensation to be paid for said lands as above described, although Relator has in good faith endeavored so to do.

'6. That the lands which Relator seeks to condemn by this proceeding are for public use and are described in paragraph three of this petition. * * *.'

Each of the motions to dismiss, as filed by defendants-respondents, contained an assignment that relator's first amended petition 'fails to state a claim upon which relief can be granted,' as well as other objections and grounds.

The order of dismissal with prejudice recites that 'the Court finds that said First Amended Petition fails to state a claim upon which relief can be granted because said Petition shows on its face that plaintiff and relator do not have the right or power to maintain condemnation proceedings against the defendants under and pursuant to Section 393.030 RSMo 1949, V.A.M.S., because said Petition shows that plaintiff is not seeking to acquire by condemnation lands upon which to build works for the pumping, storage, distribution and management of water to be taken from a stream that is not navigable, and, therefore, this Court does not have jurisdiction to grant the relief sought under the allegations of the First Amended Petition.' (Italics ours.)

Appellant contends the trial court erred in holding that the first amended petition fails to state a claim upon which relief can be granted under the provisions of Section 393.030 RSMo 1949, V.A.M.S., that the circuit court's decision emasculates and renders meaningless the provisions of the statute; that it will be presumed the Legislature did not enact an absurd law, but intended a reasonable construction permitting beneficial results; and that Section 393.030, supra, grants broad powers to condemn land for the purposes stated therein, regardless of the source of the water.

Section 393.030 is as follows:

'1. Any corporation, company or individual proposing to supply with water any city, town or village shall have the right to take water from any stream that is not navigable, and to erect a dam thereon and to lay pipes for the conveyance of water in, over or through any lands situated between the source of water supply and the point of delivery of said water, and to acquire by condemnation sufficient lands upon which to build works for the pumping, storage, distribution and management of water, upon complying with the proceedings herein provided for.

'2. In case any such corporation, company or individual cannot agree with the owners of such water or lands sought to be obtained, or right of way, upon compensation to be paid, or in case the owner is incapable of contracting, be unknown, or be a nonresident of this state, such corporation, company or individual may apply to the circuit court of the county where said land or any part thereof lies, or the judge thereof in vacation, by petition, stating what is desired.' (Italics ours.)

Respondents insist that the court properly dismissed the amended petition on the ground stated because appellant does not have and, under Section 393.030, supra, appellant has not been granted the power to condemn land 'for the purpose of obtaining a source of underground water.' Respondents contend that statutes conferring the power of eminent domain must be strictly construed against the condemnor and in favor of the landowner; and that, when the statute is so construed and applied, the petition fails to state a claim upon which relief can be granted.

Respondents argue that appellant wants the land of the respondents 'as a site for wells'; that 'nowhere in Section 393.030 is a water company given the power to acquire land for the purpose of obtaining a source of underground water'; that no other source of water, other than 'from any stream that is not navigable,' is mentioned anywhere in the statute; that 'the provision concerning non-navigable streams is the only mention made in the statute of a source of water supply'; that, 'in applying the rule of strict construction of eminent domain statutes, the courts have held that the power can be exercised only for the exact purpose for which it was granted'; that 'the express reference to a non-navigable stream as a source of water supply, and the failure of the statute to mention, by even the remotest implication, a power to acquire land to obtain any other source of supply, completely negatives the existence of any such power'; that to consider the several provisions of Section 393.030 as independent grants of power is to destroy by construction the orderly sequence set forth in the statute; that, 'if Section 393.030 had been intended to confer the right to condemn land for the purposes of drilling wells and obtaining subsurface water, Section 393.050 would have authorized the commissioners to ascertain the value of such water sources'; that 'the statute gives neither the power to condemn land for the drilling of wells, nor the power to assess damages for the taking of such land'; and that 'we are not here concerned with a water company which has a source of water supply, and is seeking to condemn the land solely for the construction of a distribution system, or for the building of works for the pumping, storage and management of water.'

Statutes granting the right of eminent domain are to be strictly construed. The rule is well settled in this state. The right is not to be implied or inferred from vague or doubtful language but must be clearly given in express terms or by necessary implication. State ex rel. Cranfill v. Smith, 330 Mo. 252, 257, 48 S.W.2d 891, 893, 81 A.L.R. 1066; Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235, 241, 73 S.W. 496, 497; Houck v. Little River Drainage Dist., 343 Mo. 28, 37, 119 S.W.2d 826, 831; 18 Am.Jur., Eminent Domain, Sec. 26, p. 650. In applying the rule, statutes granting the power to take private property for public use are strictly construed against those who seek to avail themselves of the benefit of such...