State ex rel. Weatherby Advertising Co., Inc. v. Conley

• Decision Date: 21 July 1975
• Docket Number: No. 59005,59005
• Citation: 527 S.W.2d 334
• Parties: STATE of Missouri ex rel. WEATHERBY ADVERTISING COMPANY, INC., Relator, v. The Honorable Frank CONLEY, Judge of Division II of the Thirteenth Judicial Circuit, Respondent.
• Court: Missouri Supreme Court

Page 334

527 S.W.2d 334

STATE of Missouri ex rel. WEATHERBY ADVERTISING COMPANY, INC., Relator, v. The Honorable Frank CONLEY, Judge of Division II of the Thirteenth Judicial Circuit, Respondent.

No. 59005.

Supreme Court of Missouri, En Banc.

July 21, 1975.

Rehearing Denied Sept. 8, 1975.

Hendren & Andrae by Alex Bartlett, Jefferson City, for relator.

Bruce A. Ring, Thomas E. Cheatham, State Highway Com'n, Jefferson City, for respondent.

John W. Ellinger, Jefferson City, for intervenor.

FINCH, Judge.

This is an original proceeding in prohibition wherin relator seeks to prohibit respondent judge from proceeding with two multi-tract condemnation actions filed by the Missouri State Highway Commission (hereinafter referred to as Commission) seeking to condemn land for federal aid highway projects.

In Boone County Case No. 56044 (hereinafter referred to as Riddick) relator owns two existing outdoor advertising structures located on property described as parcel No. 8 in the suit. The signs were built in 1962 pursuant to a lease with the owner. In 1973, in contemplation of selling right-of-way to the Commission, the owner of parcel No. 8 gave notice to relator terminating its lease. The Commission then purchased said right-of-way from the fee owner but no offer for the signs thereon was made to relator and Commission advised that it was not going to pay relator any compensation for the two signs. Thereafter Commission filed a petition in Riddick naming only relator as a defendant as to parcel 8.

In Callaway County Case No. 31903 (hereinafter referred to as Dodge) relator owned two sign structures on parcel No. 15, the fee interest in which belonged to one Sutterfield, and one sign on parcel No. 24 in which the fee interest was owned by Bemac, Inc. All of these structures had been placed pursuant to leases with the owners. Prior to condemnation, the Commission made an offer to Sutterfield on parcel 15, which was refused. The Commission, after suit was filed, made an offer on parcel 24 to Bemac, Inc., which was accepted. Bemac terminated its lease with relator prior to acceptance of the offer. No offer has been made to relator with reference to its signs on either tract.

After the condemnation petitions were filed, relator filed answers and counterclaims in each of the cases wherein it asserted, inter alia, the failure of the Commission to make a bona fide offer as a prerequisite to condemnation under traditional eminent domain law and the failure of the Commission to comply with the provisions of 42 U.S.C. § 4651 and 42 U.S.C. § 4652 of the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970 (hereinafter referred to as Uniform Act), seeking to stop or enjoin the Commission from disturbing its properties or proceeding with the condemnation cases. The Commission then filed motions to dismiss both counterclaims. Respondent overruled these motions and subsequently entered orders of condemnation. No ruling specifically dealing with the counterclaims was entered, but the parties appear to be in agreement that the trial court indicated that it believed the orders of condemnation had disposed of the counterclaims.

After unsuccessfully seeking prohibition in the Missouri Court of Appeals, Kansas City District, the petition herein was filed. We issued a stop order and subsequently our preliminary rule in prohibition.

Twenty-four persons, all of whom are defendant property owners in Riddick and Dodge, plus two defendant property owners in another Boone County case (No. 56853) (hereinafter referred to as Moreau), have been allowed to intervene. They, too, assert non-compliance by the Commission with §§ 4651 and 4652 of the Uniform Act in the Commission's dealing with intervenors and they request that the Commission be compelled to comply with those statutory provisions.

Bemac, Inc. also was permitted to intervene. It asserts that relator's lease on its property was terminated, that it had agreed with the Commission to convey its interest in parcel 24 in Dodge for the amount of a stipulated Commissioner's award but that it is being prevented from receiving the agreed upon settlement by reason of pendency of this prohibition proceeding.

It is well established in Missouri that allegation and proof that the condemnor and property owners have been unable to agree on compensation to be paid for the property being taken is jurisdictional. The rule is clearly enunciated in State ex rel. State Highway Commission v. Pinkley, 474 S.W.2d 46, 48--49 (Mo.App.1971), as follows:

'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 the 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."

The petitions in condemnation in these cases allege that 'relator cannot agree with the defendants, owners of, or claimants of interest in the property, on the proper compensation, if any, to be paid for the tracts of land or rights herein set out.' The sufficiency of such an allegation was sustained in the case of State ex rel. State Highway Commission v. Cady, 372 S.W.2d 639 (Mo.App.1963), but its adequacy is questionable. It merely asserts the conclusion that the Commission cannot agree with defendants on compensation. It does not allege that a settlement has been attempted or that offers have been made and rejected. One might believe at the outset that no agreement is possible and make no attempt to settle. The petition should allege enough to show that bona fide negotiations have occurred but that the parties were unable to arrive at a settlement. In this case, concededly, the Commission has made no offer of any kind to relator with respect to any of the signs on any of the tracts which the Commission seeks to condemn. As a matter of fact, no negotiations have taken place. Instead, the Commission takes the position as to parcel 8 in Riddick and parcel 24 in Dodge, that relator has no rights since its lease has been terminated. It has advised relator that it will pay nothing for the signs on the tracts in question. With reference to parcel 15 in Dodge, where relator's lease is still outstanding, Commission says it need not make an offer to relator because Sutterfield, the fee owner, refused an offer of settlement.

Has the Commission sufficiently complied with applicable requirements for negotiations to settle as to vest jurisdiction in respondent? This question necessarily involves a consideration not only of the provisions of § 523.010, ¹ discussed above in Pinkley, but also, since both Riddick and Dodge involve federal aid projects, § 226.150, which provides in pertinent part as follows:

'The commission is hereby directed to comply with the provisions of any act of congress providing for the distribution and expenditure of funds of the United States appropriated by congress for highway construction, and to comply with any of the rules or conditions made by the bureau of public roads of the department of agriculture, or other branch of the United States government, acting under the provisions of federal law in order to secure to the state of Missouri funds allotted to this state by the United States government for highway construction. * * *'

The foregoing statutory provision, then designated as § 8106 RSMo 1929, was construed by this court in Logan v. Matthews, 330 Mo. 1213, 52 S.W.2d 989 (banc 1932). In that case citizens and taxpayers sought to enjoin the Commission from constructing a highway so as to miss the towns of Avalon and Tina. A section of a highway construction statute provided that the highway to be constructed would run through those two towns, but the federal government, which was to provide federal aid...