State Ex Rel. Rhodes v. Crouch

621 S.W.2d 47, 1981 Mo. LEXIS 435

• Court: Supreme Court of Missouri
• Decided: September 9, 1981
• Docket: 62720
• Status: Published

Opinions

PROHIBITION

HIGGINS, Judge.

Respondent judge issued an injunction which permitted KAMO Electric Cooperative to survey relators’ land in furtherance of condemnation. The Court of Appeals, Southern District, issued a writ of prohibition which vacated the injunction. This Court transferred the case because of the general interest of the question whether a rural electric cooperative has the power to enter private property for the purpose of making a survey in anticipation of and preparation for condemnation of a right-of-way for an electric transmission line. Writ quashed.

KAMO Electric Cooperative is engaged in the transmission of electricity for the purpose of serving rural areas. In furtherance of its purposes, KAMO has proposed and is prepared to construct a transmission line that would extend through part of Christian County, including property owned by relators.

Relators refused KAMO access to their property for the purpose of surveying the exact right-of-way for the transmission line. KAMO petitioned the Circuit Court of Christian County for an injunction that would grant access for surveying on the property of relators. The court issued a restraining order for that purpose and KAMO posted a $1,000 cash bond. After hearing, the court issued a temporary injunction, and the relators petitioned the court of appeals for a preliminary writ of prohibition. The writ was made absolute to dissolve the restraining order and temporary injunction.

The pre-condemnation right of a rural electric cooperative to enter upon and survey land is a question of first impression in Missouri.¹

KAMO is a rural electric cooperative as defined in Chapter 394, RSMo 1978. Section 394.080(11) grants rural electric cooperatives the power of eminent domain “in the manner provided ... [to] corporations constructing or operating electric transmissions and distribution lines or systems.” Section 523.010 grants such corporations the power of eminent domain. “While eminent domain statutes are to be strictly construed so far as the power to condemn is concerned, yet they are not to be construed so as to defeat the evident purpose of the Legislature.” State ex rel Siegel v. Grimm, 314 Mo. 242, 253, 284 S.W. 490, 493 (banc 1926).

Rule 86.04 provides that a petition for condemnation “shall provide a description” of the property or right sought. This Court held in State ex rel. Morton v. Allison, 365 S.W.2d 563, 565 (Mo.1963):

[T]he statute and rule contemplate that the condemnor shall describe the land and rights sought with such particularity that the owner can, without too much difficulty ascertain exactly what is being taken .... [It] is not asking too much to say that the owner’s lands should be described by metes and bounds, referenced by Congressional Section Courses, recorded plats, or fixed and readily ascertainable monuments.

Accordingly, pre-condemnation surveying is not only necessary to the exercise of the right of eminent domain, it is a part of eminent domain. The right of eminent domain is virtually useless to an entity without the right to survey, and that right must be available before the beginning of condemnation proceedings. As stated in Thomas v. City of Horse Cave, 249 Ky. 713, 61 S.W.2d 601, 604 (1933):

[I]t is necessary that the exact location, amount, and description of the property sought to be condemned, be definitely ascertained, and in such circumstances, if these preliminary steps be denied, it would be at least difficult, if not impossible, to successfully carry out condemnation proceedings. We do not conceive that the Legislature intended to make a useless gesture by granting a privilege without any power, expressed or implied, to carry such privilege into effect and operation.

The foregoing refutes respondent’s contention that because the legislature has specified a right of pre-condemnation survey to some entities, and not to rural electric cooperatives, this Court should hold that the legislature did not intend for rural electric cooperatives to have the power of survey in anticipation of and preparation for condemnation. The existence of the referenced grants² does not preclude a determination that eminent domain includes the right to survey in anticipation of and preparation for condemnation. The purpose of statutory construction is to determine the intent of the legislature. State ex rel. Schwab v. Riley, 417 S.W.2d 1 (Mo. banc 1967). In arriving at that intention, the objectives of the act are to be considered, and the construction must be reasonable and logical and give meaning to the statutes. In re Duren, 355 Mo. 1222, 1235, 200 S.W.2d 343, 352 (Mo. banc 1947), Globe-Democrat Publishing Co. v. Industrial Commission, 301 S.W.2d 846, 852 (Mo.App.1957). In this context, it would make little sense that the legislature would grant the power of eminent domain to an entity and at the same time deny the entity the means required to use the grant.

The writ of prohibition issued by the Court of Appeals, Southern District, is quashed; the temporary injunction issued by the Circuit Court of Christian County is ordered reinstated.

DONNELLY, C.J., and WELLIVER, MORGAN and BARDGETT, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. RENDLEN, J., dissents and concurs in separate dissenting opinion of SEILER, J.

1 . See Annot., 29 A.L.R.3d 1104 (1970), for cases concerning this topic.

2 . The legislature has provided a right of pre-condemnation survey to railroad corporations

“as may be necessary to the selection of the most advantageous route,” § 388.210, RSMo 1978; and to the State Highway Commission to “determine the most advantageous route,” § 227.120, RSMo 1978.