GENERAL DESCRIPTION OF EMINENT DOMAIN

Eminent Domain is the power to take property for public use. It is an inherent power of government. The state legislature has exclusive authority to exercise and delegate the power. When the state is not acting directly, the body acting pursuant to delegated authority, such as the City, must act within the scope of its delegated power.

The United State Constitution prohibits the taking of private property for public use without just compensation. The Missouri Constitution provides similar protection to property owners and also provides that taking can only be for public use (or for private ways of necessity), that excess property can be taken when necessary to effectuate the public purpose of the taking, and that compensation must be paid for damaging property as well as for taking it.

The acting legislative body establishes the public purpose and determines the necessity of the taking to accomplish that purpose. It must also make an unconditional good faith offer to acquire the property by negotiation, for a taking is only allowed when such negotiations fail. In certain instances, some of these actions are carried out by another entity once the primary authority determines that the circumstances are appropriate, such as for development of a blighted area.

The trial court will determine the legality of the proposed taking, will identify the persons entitled to compensation, and, typically through a jury, will determine the compensation to be paid. The court holds a hearing to determine the right of the condemning authority to take the property, examining the scope of delegated authority, the public purpose, the necessity of the taking, and the required good faith offer. Typically, the courts defer to legislative judgments concerning purpose and necessity, although the Missouri Constitution makes clear that the courts can make an independent assessment of the public nature of the purpose. Next, three court-appointed commissioners hold a hearing to make an initial determination of compensation. If the condemning authority pays this award into court (for withdrawal by the interested parties), then it can take possession and proceed with the project. If any party is not satisfied with the commissioners' award, it can file exceptions and have a jury make a final determination of compensation.

Appellate courts can become involved as well. These courts can prohibit a taking if they conclude the trial court erred in allowing it to go forward. If the award is withdrawn from court by the interested parties, then no further challenge to the lawfulness of the taking is allowed. The appellate courts can also review the amount of compensation determined at trial.

The condemning authority can abandon a taking until the assessment of compensation becomes final, unless it takes possession of the property earlier. Upon abandonment, a new taking of the same property typically cannot be instituted for two years. Interest on the award can be recovered as compensation for abandonment, and in some instances also attorney's fees.

The value of the property being taken is determined as of the date that the commissioners' award is paid into court (or the date of trial if monies are not paid into court). The valuation standard is fair market value, considering the highest and best use of the property. In the event that only a portion of a piece of property is taken, then compensation is based upon the difference between the fair market value of the whole property and the fair market value of what is left after the taking. Fair market value can be determined by means of adjusted comparable sales of other similar properties, by the combination of land value and the depreciated cost of improvements, or (for total takings) by a capitalization of the income generated by the property (but typically not the profits of the business on the property).

Additionally, relocation benefits are available to varying degrees, depending on whether state or federal funds are used to pay for the taking.

Generally, attorney's fees cannot be recovered. Further, except in extremely unusual circumstances, there is no recovery for any collateral impact of the process of condemnation upon the owner's ability to make full use of their property prior to the taking.