In all condemnation proceedings, except those in instances where special provisions to the contrary are, or may hereafter be, provided for by charters or ordinances of those cities having constitutional charters, the procedure to be followed shall be that provided for by these rules.

Note: The rules relating to condemnation have been redrafted to provide for a single method of condemning property. Therefore there has been a grouping of some provisions from various sections. An attempt has been made to provide a fair procedure for all concerned. Provisions of constitutional charters and ordinances based thereon are not superseded because of the doubtful legality of action annulling constitutional charter provisions. Cities with Constitutional Charters may be subject to this Rule 86, by express adoption thereof or by the absence of special contrary provisions.

All proceedings for condemnation must be brought in the circuit court of the county and city of this state as provided by statute.

Note: This is an adoption of statutory venue provisions which provide that actions for condemnation be brought in the county where the property condemned lies. See for example Section 523.010, RSMo 1959.

The individual or individuals, village trustees, corporation or organization, private or municipal, that has authority to bring a condemnation proceeding shall be the plaintiff or plaintiffs in such condemnation proceedings; the owners of any or all of the property that is to be condemned, or the use of which is to be condemned, or which will be benefited by an improvement involved in a condemnation proceeding, or who may have an interest therein may be made parties defendant. If the proceedings seek to affect the properties of persons under guardianship, the guardians must be made parties defendant. If the present owner of any land to be affected has a less estate than a fee, the person or persons having the next vested estate in reversion or in remainder and having future interest may, at the option of the petitioners, be made a party defendant; but, if any one having an interest in such property is not made a party, that person's interest shall not be bound by the proceedings. It shall not be necessary to make any persons parties defendants in respect to their ownership unless they are either (1) in actual possession of the property to be affected, claiming title or (2) have a title to the premises appearing of record upon the proper records of the county in which they lie. When legislation must be passed by a municipality before it is permitted to condemn property, it shall not be required in any case to bring any persons into the condemnation proceedings other than the owners of the property, or those interested therein, who were such at the time of the taking of effect of said legislation, and the parties claiming or holding through, or under, such owners, or parties interested, or any of them shall be bound by the proceedings as fully as if they were brought in.

Note: New.

Compare: Section 523.010, RSMo 1959.

The petition shall contain a description of the property or right which the plaintiff desires to acquire, use, or extinguish; if a dam is to be constructed across any watercourse, the petition shall contain the name of the watercourse, a description of the point at which it is desired to erect such dam and a description of any installations which it is proposed to erect in connection with the dam; the names of the owners of the property to be condemned, if known, or, if unknown, a statement that they are unknown; a statement of the foundation of the plaintiff's right to condemn the property involved in the condemnation proceedings; a general statement of the nature of the business, improvement or use for which the property is to be taken; a statement either that the condemner or owner can not agree on the proper compensation to be paid or that an owner is incapable of contracting, is unknown, can not be found or is a non-resident of the state; if any right of way be sought, the location and general route thereof shall be described and a copy of the construction plans required by Section 227.050 of the Revised Statutes of Missouri, 1949, shall be filed in the circuit clerk's office and made a part of each condemnation petition by reference; when property will be benefited by an improvement in connection with which condemnation proceedings are brought, a map of the benefit district involved, and a copy of any local legislation establishing the district shall be filed with the petition and made a part thereof; a prayer for the appointment of three disinterested freeholders, as commissioners, to assess the damages which such owners may severally sustain because of the condemnation of the property, and the use to which it is to be put and to assess benefits in those instances in which it is proper to make such assessments.

Note: New.

Compare: Section 523.010, RSMo 1959.

Upon the filing of the petition, a summons shall be issued giving the owners of the property involved at least ten days' notice of the time and place when said petition shall be heard, which summons shall be served in the manner provided for by these rules in ordinary civil cases. If the name, residence, or whereabouts of any of the owners be unknown, or if any of the owners do not reside within the state or for any other reason personal service cannot be had on them within the state, notice of the time and place of hearing of the petition shall be given by publication for three weeks consecutively, prior to the time of the hearing of the petition, in a newspaper published in the county in which the proceedings are pending, if one is published in said county, or, if no newspaper is published in the county, or the publishers shall refuse to publish the same, then by posting said notice for three consecutive weeks at the door of the courthouse of the county wherein the lands or any portion of them lie.

Note: New.

Compare: Section 523.030, RSMo 1959.

The notice by publication referred to in Rule 86.05 shall be required to be published only once each week, but shall be published on the same day of each week.

Note: This new Rule 86.051 will make clear what was originally intended in respect to the publication authorized by Rule 86.05; namely, that the notice shall be required to be published only once for each of the three consecutive weeks prior to the time of hearing the petition.

The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, resident of the county in which the real estate or a part thereof is situated, to assess the damages that the owners may severally sustain by reason of such appropriation. The value of the property being condemned and all benefits and damages shall be assessed by said commissioners as of the date the assessment is made, and, if the award of said commissioners has not been paid to the defendants, or to the clerk of the court for said defendants, within one year after said commissioners' award is filed, any subsequent assessment of values, benefits and damages shall be as of the date of such subsequent assessment. The commissioners, after having viewed the property, shall forthwith return, under oath, to the clerk of the court their report in duplicate setting forth, and stating separately as to all property held under the same ownership (1) the amount of net damages, if any, together with (2) a separate description of the property for which the damages are assessed.

The clerk shall file one of said copies in the clerk's office and cause the other to be delivered to the recorder for the county where the property lies, who shall record the same in the recorder's office and shall enter in the abstract and index of deeds at the proper place in the grantor's column the respective names of the first persons alleged to claim, or through whom is claimed some title to each of such respective separately described properties, and the fee for said recording shall be taxed by the clerk as costs of the proceedings. When condemnation proceedings are brought in connection with a project to supply water to any city, town or village, the commissioners or jury shall inquire, and make report as to the value of the use of the stream, or the diversion of the waters thereof, to the extent to which the plaintiff proposes to use it, or to divert them, or what damage will be done by the erection and maintenance of any dam or buildings that it is proposed to erect and maintain in connection with aforesaid supplying of water, specifically stating to whom and upon what account damages are awarded. When private property is appropriated by a municipality for any public place or use, resulting benefits shall be assessed against the municipality for the amount of the benefit to the public generally, and the balance of the benefits shall be assessed against the owner or owners having land within the benefit limits set by the municipality, which land shall be especially benefited by the proposed improvement, to the proportion that each lot of said owners shall be benefited. Upon making payment to the clerk of the amount assessed, for the party or parties in whose favor such damages have been assessed, it shall be lawful for the condemner to take possession and hold the interest in the property so appropriated for the uses aforesaid; and, upon failure to pay the assessment aforesaid within ten days after it becomes final or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void. If such appropriation be so abandoned as to any property, proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment. The report of the commissioners, when signed by two of said commissioners, shall be taken and considered as the report of all.

Note: New.

Compare: Section 523.040, RSMo 1959.

The owners of any numbers of tracts may be joined in one petition.

Note: New.

Compare: Section 523.020, RSMo 1959.

Immediately after the filing of the report of the commissioners, the clerk of the court wherein it is filed shall notify the parties of such filing. The notice shall be given, if possible, in the manner provided by Rule 43.01, or, if this is not possible, by posting the notice in the office of the clerk of the court. The clerk shall file in the cause a certificate and any other lawful evidence necessary to prove the time and manner of serving all such notices. Any party may file written exceptions to the report of the commissioners within thirty days after the service or posting of the notice. Upon the filing of the exceptions, the issue of the amount of damages sustained by, and benefits accruing to, the defendant's property, if any, as a result of the appropriation shall be submitted to a jury or, if a jury be waived, to the court, to be tried as in ordinary cases of inquiry of damages. On such trial, the court or jury, within the direction of the court, may view the property involved. Notwithstanding the exceptions, the condemner may, after paying the amount of the commissioners' award to the clerk of the court for the owner or owners of any property involved, take possession of the property or subject it to the public use set out in the condemnation petition, and any subsequent proceedings shall only affect the amount or division of the compensation allowed.

The cost of the condemnation proceeding shall be paid by the condemner, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceedings.

Note: New.

Compare: Section 523.070, RSMo 1959.

In condemnation proceedings under Rule 86 interest shall be recovered in the manner and the amounts as now or hereafter provided by Statutes including Section 523.045, RSMo 1949. The reference in Section 523.040 to Section 523.045 shall be construed to refer to this Rule 86, and particularly to Rule 86.06.

Note: This section recognizes the applicability of Section 523.045 of the Revised Statutes of Missouri Senate Bill 248, enacted by the Seventieth General Assembly.