State v. Dolan

Decision Date28 May 2013
Docket NumberNo. SC 92717.,SC 92717.
Citation398 S.W.3d 472
PartiesSTATE of Missouri ex rel. Velma P. JACKSON and Alicia D. Seabaugh, Co–Trustees of the Lyle James Lambert a/k/a James Lyle Lambert and Jessie P. Lambert Family Trust Dated October 27, 2010, Relators, v. The Honorable David A. DOLAN, Respondent.
CourtMissouri Supreme Court


Mark G. Arnold, Caroline L. Hermeling, Husch Blackwell LLP, St. Louis, Raymond C. Leible, Sikeston, for the trustees.

James M. Hux, Hux & Hux, Sikeston, for the port authority.


The Southeast Missouri Regional Port Authority (“Port Authority”) sought to purchase a 30.65–acre parcel of land owned by Velma Jackson and Alicia Seabaugh (Trustees) in their capacity as trustees of the Lambert Family Trust. After negotiations with the Trustees failed, the Port Authority filed a petition for condemnation in the circuit court of Scott County seeking condemnation of the 30.65–acre parcel. The Trustees filed a motion to dismiss arguing that the sole purpose for the taking was economic development, in violation of § 523.271,1 and that the taking was for a private use, in violation of article I, section 28 of the Missouri Constitution. After an evidentiary hearing, the circuit court ordered condemnation of the property. The circuit court concluded that the taking did not violate § 523.271 because, in addition to promoting economic development, the taking would facilitate construction of a loop track and would improve river commerce. The circuit court also concluded that the taking did not violate article I, section 28 because it served a public purpose and any aid provided to a private entity was incidental to such purpose.

The Trustees petitioned this Court for a writ of prohibition, arguing that the condemnation was unauthorized by law because it violated § 523.271 and article I, section 28. This Court issued a preliminary writ. Because the circuit court failed to find any purpose for the taking that is not included in the legislature's definition of “economic development,” the proposed taking is in excess of the Port Authority's condemnation authority, and the preliminary writ of prohibition is made permanent.

Procedural and Factual History

Velma Jackson and Alicia Seabaugh own 30.65 acres of undeveloped land in their capacity as Trustees. The 30.65–acre parcel abuts land owned by the Port Authority. The Port Authority is a political subdivision of the State of Missouri organized under chapter 68, RSMo, and has the authority to acquire property necessary to its purposes through the power of eminent domain pursuant to § 68.025.1(17).2 The Port Authority is also authorized to [c]onsider and adopt detailed and comprehensive plans for future development and improvement of its port districts and to coordinate such plans with regional and state programs,” to conduct land reclamation and resource recovery, and to buy and sell real property and improvements and personal property necessary to fulfill its purposes. Sections 68.025.1(2), (15) and (16).3

The Port Authority operates a port district that encompasses Scott and Cape Girardeau counties. Within this district, the Port Authority owns between 500 and 600 acres of land. The Port Authority plays two roles with regard to the land it owns. First, it serves as a land developer by developing and leasing land to private companies. In this capacity, the Port Authority provides streets, sewers, utilities, railroad tracks, and access to the harbor contained within the port. The harbor itself is operated by a private entity on land leased by the Port Authority. In its second role, the Port Authority operates a six-mile railroad that connects with two separate rail carriers, Union Pacific and Burlington Northern Santa Fe. This six-mile railroad provides businesses in the area with the ability to transfer freight between barges and trains at the Port Authority's harbor.

In order to expand its facilities, the Port Authority decided to build a loop track that would enable it to handle unit trains. Unit trains are trains of around 100 cars that come from one shipper and are headed to one particular destination. The Port Authority's current track is insufficient to handle trains of this magnitude, and it hopes that by constructing a loop track it can reduce freight rates thereby promoting growth in jobs and commerce.

To fund the construction of the loop track, the Port Authority sought to condemn the 30.65–acre parcel of land owned by the Trustees. The Port Authority intends to lease all of the condemned land out to private entities. One such entity has agreed in principle to the terms of a lease.4 This unnamed entity wishes to construct a tank farm on a portion of the Trustees' land that would hold liquid products for transfer between barge and rail or barge and truck. The Port Authority also has conditional leases in place with other prospective tenants that would build dry storage areas for cargo on the 30.65–acre parcel. None of the facilities would be open to the general public. The private entities would receive the income derived from these facilities.

In exchange for the lease, or as part of the lease,5 each prospective tenant has agreed to provide funding for construction of the loop track. The loop track itself will not be constructed on the 30.65–acre parcel. The Port Authority does not need to condemn the land to have a place to construct the loop track. It already owns that land, but it lacks the funding to build the track.

After the circuit court ordered condemnation, the Trustees petitioned this Court for a writ of prohibition, arguing that the condemnation was not authorized by law because it violates § 523.271 and article I, section 28. This Court entered a preliminary writ of prohibition.

Appropriateness of a Writ of Prohibition

Prohibition is a discretionary writ that may be appropriate to stop condemnation proceedings that are not authorized by law. State ex rel. Broadway–Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272, 274 (Mo. banc 2006); Tierney v. Planned Indus. Expansion Auth. of Kansas City, 742 S.W.2d 146, 149–50, 157–58 (Mo. banc 1987).

The Taking Does Not Violate Article I, Section 28 of the Missouri Constitution

Eminent domain is the power of the State to take private property and “is an inherent element of sovereignty.” St. Louis, H. & K.C. Ry. Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S.W. 483, 485 (1894). The Missouri Constitution currently has two separate constitutional provisions that recognize the power of eminent domain. Article I, section 26 of the Missouri Constitution provides [t]hat private property shall not be taken or damaged for public use without just compensation.” Article I, section 28 provides, with certain exceptions not relevant here,6 [t]hat private property shall not be taken for private use with or without compensation, unless by consent of the owner....” Article I, section 28 also provides that, “when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.” Operating together, these constitutional provisions allow the State to exercise its inherent power of eminent domain so long as the purpose for which land to be taken is a public purpose and the State pays just compensation.

This case does not involve the State itself taking property. Under Missouri law, the State statutorily may delegate the power of eminent domain to municipalities or other government subdivisions. State ex rel. Mo. Cities Water Co. v. Hodge, 878 S.W.2d 819, 820–21 (Mo. banc 1994). The legislature made such a delegation to the Port Authority in § 68.025.1(17).

The Trustees argue that the Port Authority's proposed taking does not serve a valid public purpose; therefore, the Port Authority is seeking to take private property for private use in violation of article I, section 28. The Trustees argue that, because the land will be leased to unknown private entities, those entities will receive the primary benefit, and no true benefit will inure to the public.

Missouri long ago abandoned an interpretation of “public use” that required actual use or occupation by the public. This Court instead has embraced a much broader interpretation of “public use.” In In re Kansas City Ordinance No. 39946, this Court held:

In order to constitute public use, it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable number is sufficient. Nor does the mere fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character.

298 Mo. 569, 252 S.W. 404, 408 (banc 1923) (citation omitted). See also In re Coleman Highlands, 401 S.W.2d 385, 388 (Mo.1966) (We do note that ... [this] Court adopted what it described as a liberal and flexible interpretation of ‘public use’ which, it said, was synonymous with ‘public advantage’ or ‘public benefit,’ and did not require that there should be an actual use or occupation of the land by the public or a public agency.”); Arata v. Monsanto Chem. Co., 351 S.W.2d 717, 720–21 (Mo.1961) (citing In re Kansas City Ordinance No. 39946, 252 S.W. at 408);Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 32–33 (banc 1950). A majority of other state courts have embraced a similar interpretation. 2A Nichols on Eminent Domain § 7.02[5] (3d ed.2008).

Significantly, the United States Supreme Court has broadly interpreted “public use” as used in the federal takings clause of the Fifth Amendment to the United States Constitution.7 In Hawaii Housing Authority v. Midkiff, the United States Supreme Court approved the taking of land to regulate a land “oligopoly and the evils associated with it.” 467 U.S. 229, 241–42, 104 S.Ct. 2321, 81 L.Ed.2d 186 (19...

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1 books & journal articles
  • Takings care of business: using eminent domain for solely economic development purposes.
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