State ex rel. State Highway Commission v. Eakin

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State ex rel. State Highway Commission v. Eakin, 357 S.W.2d 129 (Mo. 1962)
• Decision Date: 10 April 1962
• Docket Number: No. 48476,No. 2,48476,2
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Willard G. EAKIN et al., Respondents

Page 129

357 S.W.2d 129

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Willard G. EAKIN et al., Respondents.

No. 48476.

Supreme Court of Missouri, Division No. 2.

April 10, 1962 Motion for Rehearing or Transfer to Court en Banc Denied May 14, 1962.

Robert L. Hyder, Ralph H. Duggins, Jefferson City, for plaintiff-appellant.

Walter Wehrle, Thomas W. Wehrle, Wehrle & Wehrle, Clayton, for respondents.

BOHLING, Commissioner.

This is an eminent domain proceeding in St. Louis County involving the location, construction and maintenance of a part of what is now known as Interstate Route 44, a limited access highway with two 24 feet wide high type pavements, separated by a median strip. The Phillips Pipe Line Company, a corporate interstate common carrier of oil, gas and the products thereof and sometimes herein referred to as Phillips, has and is using its private right of way easement along a portion of said proposed highway right of way at a highway interchange. The State Highway Commission, condemnor and sometimes designated Relator or Commission, in addition to condemning the necessary right of way for said highway across the lands of Willard G. Eakin and Emily Eakin, his wife, and Deep Springs Farm, Incorporated, a corporation, seeks to condemn an easement in a 50 foot wide strip of said condemnees' land immediately north of and in juxtaposition to the north line of said proposed highway right of way as a substitute location for the aforesaid portion of Phillips' existing pipe lines. The court, after a hearing, sustained the above-named condemnees' 'Motion to Strike' from Relator's petition the material portions thereof wherein Relator sought the substitute easement over their lands for the pipe lines of the Phillips Pipe Line Company on the grounds Relator was without authority under the Constitution and laws 'to condemn an easement for pipe line right-of-way for the Phillips Pipe Line Company, a corporation,' or 'to use public funds of the State of Missouri to pay for an easement for pipe line right-of-way for the Phillips Pipe Line Company, a corporation'; and, striking paragraphs7, 30.20 and 30.21 from the petition, dismissed Relator's cause of action against said condemnees 'for the appropriation of an easement for pipe-line purposes for the use of the Phillips Pipe Line Company, a corporation.' Relator has appealed.

Among the issues involved is whether the condemnation of this substitute easement for the relocation of Phillips' pipe lines constitutes a taking of private property for public use under Art. I, Sec. 26 or a taking for private use prohibited by Art. I, Sec. 28, of the Constitution of Missouri, V.A.M.S. We have jurisdiction of the appeal.

Relator pleads, in substance in its petition (p3), that it is authorized to locate, relocate, design, construct, reconstruct and maintain state highways when necessary to comply with any federal law which is a condition to the receipt of federal highway funds; that a federal law (see 23 U.S.C.A. particularly Secs. 103(d), 106 and 120(c)) provides for a National System of Interstate and Defense Highways; that said Interstate Route 44 has been duly selected by the Highway Departments of the states of Oklahoma, Missouri, and Illinois and the Secretary of Commerce of the United States as a part of said National System of Interstate and Defense Highways for a highway connection between the Missouri-Oklahoma dn Missouri-Illinois state lines; and that said federal law makes it a condition to the receipt of federal highway funds that Relator construct and maintain said highway as a State highway.

It is also alleged (p7) that Phillips Pipe Line Company is an interstate common carrier of oil, gas and the products thereof for public use by underground pipe lines; that Phillips owns and is using a certain strip of land within said proposed highway right of way for public pipe line purposes; that it will be necessary to move said pipe lines before said highway 'can be properly and economically constructed and maintained'; that to take Phillips' said strip for said highway purposes and remove said pipe lines would materially interfere with or destroy the public pipe line use to which said strip of land is devoted; that Phillips has agreed with Relator to surrender said strip of land if Relator will secure for Phillips like rights over a substitute strip of land immediately north of said proposed highway right of way; that 'it is necessary for the proper and economical construction and maintenance' of said State highway that like rights be acquired for Phillips in such substitute strip of land and that Relator has so found, determined and declared in compliance with law.

Relator also alleges (p10): 'It is necessary for the proper and economical construction and maintenance of said State highway that the lands, property, and rights' indicated on the detail plans and set out in the petition be acquired, and that Relator, in compliance with law, has so found, determined and declared.

Paragraphs 30 and 30.10 of the petition describe the land of the named condemnees to be taken for said proposed highway right of way. Paragraph 30.20 describes the 50 foot wide 'easement' across said respective condemnees' land to be taken for the substitute location of Phillips' existing pipe lines. Paragraph 30.21 states the purposes for which said substitute easement is sought on behalf of Phillips.

The following constitutional and statutory provisions bear on whether Relator has authority to provide a substitute location for the pipe lines in the circumstances of this case, which is stated to be a case of first impression in Missouri.

Article IV, Sec. 29, Mo.Const.1945, provides that the Commission 'shall have authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways * * *; and authority to limit access to, from and across state highways where the public interest and safety may require,' all subject to such limitations and conditions as may be imposed by law.

Section 30 of said Article provides that the state revenue therein specified 'be credited to a special fund and stand appropriated without legislative action for' stated purposes in the order specified, including:

'Second, any balance in excess of the amount necessary to meet the payment of the principal and interest of any state road bonds for the next succeeding twelve months shall be credited to the state road fund and shall be expended under the supervision and direction of the commission for the following purposes: * * *

'(3) In the discretion of the commission to locate, relocate, establish, acquire, construct and maintain the following: * * * (d) any highway within the state when necessary to comply with any federal law or requirement which is or shall become a condition to the receipt of federal funds * * *.

'(5) For such other purposes and contingencies relating and appertaining to the construction and maintenance of such highways and bridges as the commission may deem necessary and proper.'

*Section 227.120 authorizes the Commission to 'condemn, lands in the name of the state of Missouri for the following purposes when necessary for the proper and economical construction and maintenance of state highways: * * *

'(3) Acquiring the right of way for the location, construction, reconstruction, widening, improvement or maintenance of any highway ordered built by the bureau of public roads of the department of agriculture of the United States government; * * *

'(13) Acquiring lands for any other purpose necessary for the proper and economical construction of the state highway system for which the commission may have authority granted by law.'

The condemnees stress People ex rel. Trombley v. Humphrey, 1871, 23 Mich. 471, 9 Am.Rep. 94, Cooley, J., writing, a mandamus proceeding by a landowner for the compensation awarded by commissioners appointed under an act of the Michigan Legislature for the appropriation by the State of land to be conveyed to the United States for lighthouses. The United States thought the award excessive and refused to accept the property. The court considered the act unconstitutional, reasoning, briefly stated (476), there was no necessity for the State to exercise this power for the United States as the authority of the United States was ample for its own needs in the circumstances; and that the power of eminent domain in any sovereignty existed only for its own purpose, and the appropriation of lands for national objects was not among the ends contemplated in the creation of state governments. The Trombley and other cases with like statements are considered inconsistent with the 'general rule that the exercise of the power of eminent domain by a state or under the authority of a state, if otherwise valid, is not invalidated by the fact that the power is exercised for the benefit or use of the United States' in an Annotation at 143 A.L.R. 1042(II), 1048(III). And, the later holding in Sommers v. City of Flint, 1959, 355 Mich. 655, 96 N.W.2d 119, 122(4), is not in harmony with the Trombley case. However, these authorities do not necessarily rule the precise issue presented here.

The condemnees also quote statements from State ex rel. State Highway Commission v. Gordon, Banc, 327 Mo. 160, 36 S.W.2d 105, 106, and State ex rel. Missouri Water Co. v. Bostian, Mo.App., 272 S.W.2d 857, 861[1-4], to like effect. The Gordon case states: 'When an agency of the state asserts that the right to exercise the power [eminent domain] has been delegated to it, it must be able to point out a statute which in express terms or by clear implication authorizes such exercise and to the extent claimed.' This principle has not been applied in some jurisdictions as strictly to public bodies as it is in construing power given private corporations rendering a public service. Eminent Domain, Nichols...