Section I Section 26

Constitution

Effective - 27 Feb 1945, see footnote   

  I Section 26.  Compensation for property taken by eminent domain — condemnation juries — payment — railroad property. — That private property shall not be taken or damaged for public use without just compensation.  Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.  The fee of land taken for railroad purposes without consent of the owner thereof shall remain in such owner subject to the use for which it is taken.

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Source: Const. of 1875, Art. II, § 21.

(1954) Contention that condemnation procedure authorized by charter of the city of St. Louis violated equal protection provision of federal constitution held waived by failure to raise same in court below. City of St. Louis v. Gruss (Mo.), 263 S.W.2d 387.

(1956) In action to condemn lands for gas storage under §§ 393.410 to 393.510, owners of lands adjoining those sought to be condemned did not have right to intervene because only damage they could suffer would result from use of condemned lands and not from condemnation. Laclede Gas Co. v. Abrahamson (Mo.), 296 S.W.2d 100.

(1956) Damage to land from water overflow which allegedly would result from highway construction ruled consequential damage, no claim for which would arise prior to infliction and claimants were therefore not aggrieved by plaintiffs' voluntary dismissal of condemnation action as to them and had no right of appeal. State ex rel. State Highway Comm. v. Lynch (Mo.), 297 S.W.2d 400.

(1957) Where landowner was advised by state highway department that it planned to construct highway through his property and began negotiations with him for acquisition of right-of-way, and as a result he changed his subdivision development plans, there was no "taking" or "damaging" within the constitutional provision. Hamer v. State Highway Comm. (Mo.), 304 S.W.2d 869.

(1959) Where power to take property by eminent domain exists, the condemnor may determine the location and route of the improvement and the land or easement to be taken for it. State ex rel. N.W. Electric Power Coop. v. Waggoner (A.), 319 S.W.2d 930.

(1959) Where amount of judgment for damages in condemnation suit exceeded commissioner's award which was paid into court, property owner was entitled to interest on excess. St. Louis Housing Authority v. Mafagas (Mo.), 324 S.W.2d 697.

(1959) Where city appropriated private sewer without complying with statutory procedure, its action would amount to taking private property for public use without just compensation. Gunn v. City of Versailles (A.), 330 S.W.2d 257.

(1960) This provision of the constitution requires an allowance of compensation to the landowner for the loss of the use of the amount of money by which the circuit court judgment exceeds the award of the commissioners from the time of taking or appropriation until the entry of judgment fixing the amount of damages. City of St. Louis v. Vasquez (Mo.), 341 S.W.2d 839.

(1961) Evidence held sufficient to sustain judgment against city because of injury to property resulting from discharge of sewage into stream running through such property. Lewis v. City of Potosi (A.), 348 S.W.2d 577.

(1961) A provision of an ordinance in the City of St. Louis which provided that damages should be assessed as of the date of the ordinance directing the condemnation held invalid. The date on which the money is paid into the registry of the court is the date on which the value of the property is to be fixed. City of St. Louis v. International Harvester Company (Mo.), 350 S.W.2d 782.

(1962) Highway commission had authority to condemn easement to provide a substitute location for pipelines which was necessary for interstate highway construction as the taking was for public purpose and was not in violation of Article III, § 38(a) since state received compensation in surrender of existing right-of-way. State ex rel. State Highway Commission v. Eakin (Mo.), 357 S.W.2d 129.

(1963) Assuming that telephone company had a certificate of convenience and necessity to serve a certain area, public service commission's orders directing another company to provide service to the area did not constitute a taking of telephone company's property in violation of this constitutional provision. State ex rel. Doniphan Telephone Co. v. Public Service Commission (Mo.), 369 S.W.2d 572.

(1963) Fact of taking of property constitutes a prima facie case thus giving rise to right to have the value determined by a jury, and although owners produced no evidence to prove value of damages, jury under proper instruction could have found damages within reasonable limits of their own experience and observation and giving of instruction which foreclosed landowners from jury determination of damages was error. State ex rel. State Highway Commission v. Cady (A.), 372 S.W.2d 639.

(1964) Trial court properly limited evidence and instructing as to valuation of property as of the date condemnor paid amount of commissioners' award into court and deterioration of value of property as result of announcement of proposed housing project and institution of condemnation action was not an item of just compensation within the meaning of this constitutional provision. St. Louis Housing Authority v. Barnes (Mo.), 375 S.W.2d 144.

(1964) Although metropolitan sewer district was immune to action in tort for damages resulting from negligent operation of drainage ditch, this provision of constitution is binding upon state as well as others having power of eminent domain and its self-enforcing and court suggested plaintiff might proceed under procedure known as condemnation in reverse or inverse condemnation where facts alleged in petition indicated plaintiff's property was taken (or damages) for public use. Page v. Metropolitan St. Louis Sewer District (Mo.), 377 S.W.2d 348.

(1964) The admission of evidence in condemnation case by owner of land zoned for agricultural purposes as to value of land for industrial use was error in absence of showing of reasonable probability of change in zoning restriction in reasonably near future and fact that land was being taken for electric power plant did not establish reasonable probability that zoning restriction would be changed in reasonably near future to permit industrial use generally. Union Electric v. Saale (Mo.), 377 S.W.2d 427.

(1964) In proceedings to condemn property by city for construction and maintenance of sanitary sewers evidence justified finding that special benefits equalled or exceeded the damages and owners were not entitled to awards. Thomson v. Kansas City (A.), 379 S.W.2d 194.

(1967) If property is taken or damaged without agreement or legal proceedings, one of several remedies of the owner is that he may waive the tort and sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry. Twiehaus v. Wright City (Mo.), 412 S.W.2d 450.

(1967) Expenses of litigation paid by landowners before termination of of condemnation proceedings did not constitute taking or damaging of his property for public use without just compensation. Dietrich v. St. Louis County (Mo.), 415 S.W.2d 777.

(1969) Section 88.673, RSMo, does not prevent recovery of damages under Art. I, § 26, of the constitution, for private property taken or damaged for public use. Lange v. City of Jackson (A.), 440 S.W.2d 758.

(1973) This provision declared to be self-enforcing. Wells v. State Highway Commission (Mo.), 503 S.W.2d 689.

(1986) Section 64.090, RSMo, was held to violate section 26 of Article I of the Missouri Constitution insofar as it attempted to give certain counties the power to zone out existing uses of property. People Tags, Inc., v. Jackson County Legislature, 636 F.Supp. 1345 (W.D. Mo. 1986).

(1987) Eminent domain statutes are narrowly construed, and an activity conducted beyond the scope of such statute, such as a "soil survey", may be enough of an intrusion to constitute a taking. Missouri Highway and Transportation Commission v. Eilers, 729 S.W.2d 471 (Mo.App. 1987).

(1993) When, as result of public works project, private property is damaged by an unreasonable diversion of surface waters, whether by design or by mistake, or when private property is damaged by nuisance operated by an entity having power of eminent domain, proper remedy is an action in inverse condemnation. Heins Implement v. Mo. Highway & Transportation Commission, 859 S.W.2d 681 (Mo. en banc).

(2000) Residents were constitutionally entitled to just compensation from sewer district in nuisance-based inverse condemnation action for odors emitted from water treatment plant. Byrom v. Little Blue Valley Sewer Dist., 16 S.W.3d 573 (Mo.banc).

(2008) Section requires availability of prejudgment interest in cases of indirect takings, either permanent or temporary, as well as in cases of direct takings. Akers v. City of Oak Grove, 246 S.W.3d 916 (Mo.banc).