State ex rel. State Highway Com'n v. Gordon
| Decision Date | 03 March 1931 |
| Docket Number | 30628 |
| Citation | 36 S.W.2d 105,327 Mo. 160 |
| Parties | The State ex rel. State Highway Commission, Appellant, v. E. Jeff Gordon et al |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court; Hon. H. A. Collier Judge.
Reversed and remanded.
John W Mather and Ralph M. Eubanks for appellant.
(1) The right to condemn is not necessarily exhausted by a single exercise of the power, but, within the limits established by a general law or special acts, a subsequent or further exercise of the power may be permissible. C. B. & Q. Railroad Co. v. Wilson, 17 Ill. 123; 2 Lewis on Eminent Domain (2 Ed.) sec. 357, p. 985; Hopkins v. Ry. Co., 94 Md. 257; C. M. Elec. Ry. Co. v. Ry. Co., 211 Ill 352; State Board v. People, 229 Ill. 430; State v. Superior Ct., 68 Wash. 397, 123 P. 529; St. Louis, etc., Railroad Co. v. Petty, 57 Ark. 359; Atlantic & Pac. Railroad Co. v. St. Louis, 3 Mo.App. 315, 66 Mo. 228; State ex rel. v. Ry. Co., 3 Mo.App. 180; State ex rel. v. Superior Ct., 64 Wash. 594. (2) The State Highway Laws in general and section 21 thereof, as amended by an act of the Legislature in 1929, Laws 1929, p. 366, contemplate successive appropriations. Laws 1921, pp. 133, 137; Laws 1929, pp. 366, 457; Hanger v. Railroad Co., 154 Pa. 475; N. Mo. Railroad Co. v. Gott, 25 Mo. 540; City of Kansas v. Baird, 98 Mo. 215; St. L., etc., Ry. Co. v. Union Depot Co., 125 Mo. 82; Kansas City v. Oil Co., 140 Mo. 458; St. Louis v. Brown, 155 Mo. 545; Laws 1929, p. 226; 36 Cyc. 1076; State ex rel. v. Schamm, 272 Mo. 541; State ex rel. v. Shields, 230 Mo. 91; 36 Cyc. 1161; Castilo v. State Highway Commission, 279 S.W. 677; Hennen v. State ex rel., 131 Okla. 29, 267 P. 638. (3) A plea in bar must set up matter wholly defeating the cause of action. Little v. Harrington, 71 Mo. 390; Cohn v. Lehman, 93 Mo. 574; Hallen v. Smith, 264 S.W. 665, 305 Mo. 157; Market Inc. v. Wentz, 13 S.W.2d 645; Flint-Walling Mfg. Co. v. Ball, 43 Mo.App. 504; Nichols-Shepherd v. Larkin, 79 Mo. 264; Kramer v. P. & L. Co., 311 Mo. 369, 279 S.W. 46.
Baker & Baker for respondents.
(1) The right of eminent domain is inherent in every government. No agency of the State, however, can exercise this right, unless express authority is given by the Legislature. Kansas City v. Oil Co., 140 Mo. 458; 20 C. J. 622, sec. 110, A. (2) The State Highway Commission, having once exercised its power to condemn a right of way for a state highway over and across respondents' land, cannot condemn another right of way for the same highway. 20 C. J. 640, 641, sec. 120; Laws 1929, pp. 226, 228; Act approved June 10, 1929. (3) Not a single Missouri case cited by appellant in its brief supports the contention made by appellant. In fact, in respondents' view, none of them even consider the question involved in this case. Cases from other jurisdictions have not been read.
This is a condemnation proceeding. From the pleadings it appears that the State Highway Commission acquired by condemnation a right of way through respondents' land for the state highway from the Boone-Callaway County line to South Cedar City in 1923. The present proceeding was commenced in February, 1930, for the purpose of acquiring a right of way over respondents' land for the same state highway. It appears, however, from the petition, and the profile map filed with it, that the parcel of land included within the right of way now sought contains 3.59 acres, 2.38 lying in the "present road" and the 1.21 being new land. In other words, the right of way across respondents' land which the commission now seeks to acquire deviates but slightly from the course of the one originally marked out and appropriated by it.
Respondents filed a plea in bar to the petition. The plea raises but one question, namely, whether the commission, having once exercised its power to condemn a right of way for a state highway over and across respondents' land, has the power to condemn another right of way thereover for the same highway.
The circuit court sustained the plea and gave judgment accordingly. From such judgment the commission appealed.
The power of eminent domain is inherent in sovereignty and exists in a sovereign state without any recognition of it in the Constitution. Constitutional provisions relating to the taking of property are but limitations upon a power which would otherwise be without limit. [10 R. C. L. 11.] The right to exercise the power, or to authorize its exercise, is wholly legislative. When an agency of the State asserts that the right to exercise the power 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. There is no constitutional question involved in this case. But as respondents deny appellant's power to make a further appropriation of their land, the title to real estate is involved, and that is the ground of this court's jurisdiction of the appeal.
As already forecast, the question of whether appellant in condemning a right of way over respondents' land for the Columbia-Jefferson City State Highway in 1923 exhausted its power with reference thereto, or whether it can condemn another and different right of way over the same land for the same highway, abandoning that first condemned, must be resolved by a consideration of the relevant statute or statutes.
The Centennial Road Law, enacted in 1921 (Laws 1921, 1st Ex. Sess., p. 131 et seq.), created and established a state-wide system of hard-surfaced public roads extending into each county of the State, to be located, acquired, constructed, reconstructed and improved and ever after maintained as public roads. The state highway system so created was not made up of roads existing at the time of the passage of the act, but of roads to be located, acquired, etc., along routes to be surveyed by the State Highway Engineer between designated points. In 1929, eight years after the creation of the state highway system, after the roads constituting the system had been for the most part surveyed and marked out, and after a considerable part of the construction had been accomplished, the Legislature amended Section 21 of the Act to read (so far as pertinent here) as follows:
It will be noted that the highways, for the proper and economical construction and maintenance of which the power of condemnation is conferred by this section, are not limited to those which have not been previously located, acquired and constructed. On the contrary the power is given for the purpose of acquiring the right of way for the location construction, reconstruction, widening, improvement or maintenance of any state highway or any part thereof, or for changing the gradients in any state highway. Very clearly the words "any state highway" cannot be restrained to mean merely public roads which happen to lie along the routes of the designated state highways and which have not been reconstructed, widened or improved. Acquiring right of way for the reconstruction or improvement of a highway implies in many situations a change in the location at the point of reconstruction or improvement; acquiring right of way for the purpose of changing gradients in a highway necessarily involves a relocation. And changes in locations, however slight, make necessary a further exercise of the power of condemnation, that is, if the compensation for the...
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