State ex rel. State Highway Commission v. Pinkley

• Decision Date: 28 September 1971
• Docket Number: No. 33985,33985
• Citation: 474 S.W.2d 46
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Helen E. PINKLEY et al., Defendants, N. B. Downs et al., and Oscar E. Berry, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 46

474 S.W.2d 46

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Plaintiff-Appellant, v. Helen E. PINKLEY et al., Defendants,

N. B. Downs et al., and Oscar E. Berry, et al.,

Defendants-Respondents.

No. 33985.

St. Louis Court of Appeals, Missouri.

Sept. 28, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 29, 1971.

Robert L. Hyder, Chief Counsel, Jefferson City, George Q. Dawes, Asst. Counsel, Sikeston, for plaintiff-appellant.

Schnapp, Graham & Reid, J. B. Schnapp, Fredericktown, for defendants-respondents.

DOERNER, Commissioner.

Appeal by the State Highway Commission in an eminent domain proceedings. The first issue presented is whether the trial court erred in denying condemnation for the reason that the evidence was insufficient to show that the Commission and the owners of the lands sought to be condemned could not '* * * agree upon the proper compensation to be paid, * * *,' as required by § 523.010, RSMo 1969, V.A.M.S.

The Commission's petition, filed on June 11, 1970, in general is in the conventional form. It was alleged therein that the Commission, referred to as the relator, sought to condemn the properties described for the purpose of locating (actually relocating) part of State Route 72 in Madison County, from Supplementary Route D easterly to U.S. Route 67 west of Fredericktown, the total length of the improvement being 4.455 miles. The Commission further alleged that: '7. The Relator and the owners of the respective lands, properties, and rights cannot agree on the compensation to be paid.' The lands and rights owned by defendants N. B. Downs, Minnie Downs, Maurice K. Downs, L. O. Whitworth, Trustee, New Era Bank, and Robert Green, Trustee, hereafter referred to collectively as defendants Downs, were described in paragraph 11 of the petition and subparagraphs thereof. Those owned by defendants Oscar E. Berry and Bertha E. Berry, hereafter called defendants Berry, were described in paragraph 12 of the petition and subparagraphs thereof.

On August 5, 1970, both of the defendants filed their respective answers in which they specifically denied each and every allegation contained in the foregoing paragraph 7 of the Commission's petition, and affirmatively alleged '* * * that a valid and unconditional offer for the acquisition of their property has not been made to them.'

Pursuant to an order of the court a hearing was held on August 6, 1970, on the Commission's petition for condemnation. On behalf of the Commission it called to the stand John Cockman, who testified on direct examination that he was employed by the Commission in the capacity of a negotiator for right-of-way on the Route 72 project in Madison County; that in his initial respective calls upon the defendants Berry and Downs he had explained the plans to them and obtained verification from them regarding ownership and the property lines as shown on the plans. Counsel for the Commission inquired of the witness whether he had made an offer to either of the defendants when he made his initial call upon them, and Cockman replied that he had not. The witness further testified that in his separate second calls upon the defendants Berry and Downs he made a written offer to each, which each defendant refused.

On cross-examination Cockman was asked whether the exhibits shown to him were the documents he contended were the written offers made to the defendants, and he answered that they were. He further acknowledged that no other offers had been made to the defendants, that after he had delivered the documents to the defendants he never went back to them and made any subsequent offers, and that he never advised them that the offer allegedly made in the exhibits had ever been approved by the State Highway Commission.

On cross-examination Cockman also stated that with the written offers he had submitted a deed to each of the defendants for their respective signatures, with the amount written in. A colloquy then occurred between the court and counsel for the parties in which the court pointed out what it considered to be the deficiency in both of the alleged written offers. Those exhibits, introduced by the defendants, are precisely the same except for the difference in the figures which were inked in on the typewritten form. The exhibit as to defendants Downs reads:

'We are now in a position to make an offer for your property needed for highway construction. The Brochure entitled 'When a Highway Comes Your Way' explains the procedures followed in arriving at this offer. Subject to the approval of the State Highway Commission, our offer is $8,575.00.

'The above offer represents payment for and includes any interest in the needed right-of-way which you and other parties may have in the property. The Right of Way Negotiator handing you this letter will answer any questions you may have in regard to our procedures in the acquisition of right-of-way.

'Yours very truly,

'/s/ W. H. Shaw

'W. H. SHAW

'District Engineer'

The court stated that it would have to deny condemnation because the law contemplates a bona fide honest offer, and entered the following judgment:

"Defendants' Motion sustained as to Paragraphs 11:40 and 11:11. Cause submitted and at the close of all the evidence the Court denies condemnation because of Plaintiff's failure to comply with statutory requirements."

The Commission's appeal followed.

The power of eminent domain is an inherent attribute of sovereignty to be exercised by such agencies, for such public purposes and in such manner as may be provided by law. State ex rel. Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195; State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534; State ex rel. State Highway Commission v. Gordon, 327 Mo. 160, 36 S.W.2d 105. Section 227.120, RSMo 1969, V.A.M.S., empowers the Commission to condemn land for the purposes stated therein, and paragraph (13) of that section provides that the procedure to be followed shall be in accordance with the provisions of Chapter 523 of our statutes. Section 523.010 of that chapter '* * * authorizes the filing of condemnation proceedings only in such cases where the condemnor 'and the owners cannot agree upon the proper compensation to be paid.' * * *' State ex rel. State Highway Commission v. Jensen, Mo., 362 S.W.2d 568, 569. Accordingly, our appellate courts have long and uniformly held that the inability of the condemnor to reach an agreement with the owner on the price to be paid for the land is a jurisdictional fact which must be both pleaded in the condemnor's petition, and proven. State ex rel. State Highway Commission v. Jensen, Mo., supra; Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6; School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860. Thus since the case of Lind v. Clemens, 44 Mo. 540, decided in 1869, it has been a firmly settled principle of law that when the authority to condemn is conditioned upon the inability of the condemnor and the owner to agree upon the amount to be paid, and no effort of the condemnor to effect an agreement is shown, the condemnation proceedings cannot be maintained. Leslie v. City of St. Louis, 47 Mo. 474; City of St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; State ex rel. State Highway Commission v. Cady, Mo.App., 372 S.W.2d 639, cert. den. 385 U.S. 204, 87 S.Ct. 407, 17 L.Ed.2d 300. In Cady (l.c. 642) the court said:

'* * * Necessity is the underlying basis for the sovereign's exercise of the power of eminent domain. No such necessity can exist until it be shown that the parties cannot agree in private negotiation. Our landowners should not be haled into court, nor should dockets be burdened with such litigation until it is made to appear affirmatively that negotiations have been attempted and have failed.'

It is hornbook law that in order to make a contract there must be a meeting of the minds of the parties. Such a meeting is frequently, if not invariably, arrived at after a period of bargaining and dickering. But however brief or protracted may be the negotiations, a meeting of the minds can ultimately be reached only by a valid offer by one party and the unqualified acceptance of it by the other. Accordingly, in order to satisfy the requirement of Section 523.010 that the condemnor and the owner were unable to agree upon the proper compensation to be paid, it logically follows that the condemnor's evidence must show that a valid offer was made by one party and rejected by the other. And since the burden of proving the inability of the parties to agree is on the condemnor, the cases indicate that it is customary, if not mandatory, for the condemnor to initiate the negotiations and to make the first offer or proposal. Thus in 29A C.J.S. Eminent Domain § 224(2) it is said: 'In order to satisfy the statutory requirement, there must be a bona fide attempt to agree. There must be an offer made honestly and in good faith, and a reasonable effort to induce the owner to accept it. * * *' For examples of bona fide but unavailing attempts made by condemnors to reach an agreement with the owners see Shelby County R--IV School Dist. v. Herman, Mo., 392 S.W.2d 609 and School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860.

It is readily apparent from the evidence that there were no valid offers made by the State Highway Commission in the instant case. The purported written offers presented by Cockman to the defendants begin with the phrase 'We are now in a position to make an offer,' and refers to 'our offer,' but nowhere therein are the 'we' or 'our' identified, nor is it recited therein that the purported offers were made by or on behalf of the Commission. They were signed only by the District Engineer, but nothing in the exhibits indicates that he had been authorized by the Commission to make any offers on behalf of the Commission, and there was no other evidence produced to that effect....