Laura Denvir Stith, Judge.
The Metropolitan St. Louis Sewer District ("MSD") appeals the trial court's judgment dismissing its claims of inverse condemnation, trespass and negligence against the city of Bellefontaine Neighbors for damage to MSD sewer lines allegedly caused in the course of a city street improvement project. MSD argues that it can bring a claim under article I, section 26 of the Missouri Constitution for inverse condemnation alleging the City unintentionally took its property without just compensation. This Court disagrees. Article I, section 26 provides constitutional protection against the taking of "private" property without just compensation. It is undisputed that the sewer pipes that MSD alleges were inversely condemned are public property. This Court rejects MSD's argument that the word "private" was intended to encompass "public" property as well. The meaning of the word "private" is unambiguous, and the trial court did not err in giving the provision its plain meaning and dismissing the inverse condemnation claim.
MSD alternatively argues that the trial court erred in holding that sovereign immunity barred it from asserting claims for trespass and negligence against the City because the City has not identified a previous case in which sovereign immunity has been found to apply in suits between governmental entities. This Court rejects MSD's argument. Sovereign immunity is the rule, not the exception. Unless it is waived or a statutory or recognized common law exception, such as consent, is applicable, sovereign immunity applies. No statutory or common law exception applies here, and the federal and California cases on which MSD relies are distinguishable. The judgment is affirmed.
MSD was formed in 1954 following voter approval pursuant to article VI, section 30 of the Missouri Constitution. MSD provides wastewater treatment and sewerage facilities for the St. Louis city and county metropolitan area. In 2009, the City of Bellefontaine Neighbors, a municipality in St. Louis County, initiated a street improvement and resurfacing project and hired Sherrell Construction Inc. as general contractor for the project and P.H. Weis & Associates as engineer. Sherrell hired
In October 2013, MSD filed suit. In its original petition, MSD asserted a claim of trespass and negligence against Sherrell, Weis and Lift Rite and a claim of inverse condemnation against the City. The City moved to dismiss for failure to state a claim, arguing that inverse condemnation applies only in the case of a taking of private property, not public property, and that MSD failed to allege any affirmative acts by the City that caused the damage. The trial court granted the City's motion to dismiss in April 2014.
MSD filed an amended petition again setting out a count for inverse condemnation against the City and added claims against the City of negligence and trespass, alleging it was the City's participation in and direction of the activities that damaged MSD's sewer lines.
"The standard of review for a trial court's grant of a motion to dismiss is de novo." Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). The Court treats the facts contained in the petition as true and in the light most favorable to the plaintiff. Id. "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Id.
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." Condemnation is the proceeding by which a governmental entity takes private property. State ex rel. Missouri Highway & Transp. Comm'n v. Anderson, 735 S.W.2d 350, 352 (Mo. banc 1987) (superceded by statute on other grounds). Missouri statutes provide procedures through which just compensation for this taking is determined
At times a public entity does not initiate condemnation proceedings but nonetheless intentionally or accidentally takes private property, such as when it damages private property or mistakes boundaries or property rights. In such cases, property owners may pursue claims for "inverse condemnation." "Inverse condemnation is not an alternative to proper condemnation, but a method of ... assur[ing] that landowners receive just compensation for that which was taken." Harris v. L.P. & H. Const. Co., 441 S.W.2d 377, 381 (Mo.App.1969). Accord, State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365, 371 (Mo. banc 2008).
Here, MSD claims that the City took its property accidentally when the City or its agents filled MSD sewer pipes with slurry during the mudjacking process, thereby rendering the pipes unusuable. It sued the City for just compensation for this damage under a theory of inverse condemnation. The trial court dismissed MSD's inverse condemnation claim without issuing findings of fact or conclusions of law. When a trial court does not indicate why it dismissed the petition, this Court presumes it was for one of the reasons stated in the motion. Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008). Here, the City's motion alleged that article I, section 26 of the Missouri Constitution and Missouri statutes governing condemnation and inverse condemnation provide for just compensation only for the taking of private property and that these provisions do not entitle MSD to sue for inverse condemnation because MSD is seeking compensation for the taking of public property.
On appeal, MSD necessarily does not contest that it is a public entity,
This Court rejects MSD's arguments. MSD cites no Missouri case that has interpreted the word "private" to include "public" in its meaning. Neither does it cite any instance in which a Missouri court has ruled that article I, section 26 applies to public as well as private entities whose property has been taken by another public entity. In effect, MSD asks this Court to act as a legislature or to add a provision to the constitution that is not there because it would be good public policy. But that is not a role this Court can undertake. Independence-Nat'l Educ. Ass'n v. Independence Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). And, while MSD may be correct that the legislature would be free to extend the right to just compensation to it by statute, the legislature has not done so.
This Court must interpret article I, section 26's use of the term "private property" according to its plain meaning. Webster's Third New International Dictionary defines "private" as "belonging to or concerning an individual person, company or interest (property)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 1804, (3d ed. 1993). "Public" means "authorized or administered by or acting for the people as a political entity: government." Id. at 1836. These definitions unequivocally do not support reading the word "private" to include within its meaning the word "public." To the contrary, the words are understood as antonyms.
For these reasons, when presented with a similar issue, this Court declined to read the word "private" into an unambiguous constitutional provision that did not contain that word in Independence-National Education Association v. Independence School District, 223 S.W.3d 131 (Mo. banc 2007). This Court there was asked to construe the meaning of the word "employees" as used in article I, section 29, which states "employees shall have the right to organize and to bargain collectively through representatives of their own choosing."
The defendant school district in Independence claimed that it was bad public policy for "public" employees to collectively bargain. It cited extrinsic evidence it said showed that the person who drafted and presented section 29 at Missouri's 1945 constitutional convention talked only about "private" employees when discussing this section. The school district, therefore, asked this Court to affirm the holding in an earlier case that even though the word "private" was not included in the constitutional provision, the Court would read the word "private" into the provision in question and interpret it for policy reasons as if it said "private employees ... shall have the right to bargain collectively," Id. at 133, 136-37.
This Court unequivocally rejected the school district's argument. The constitutional language in article I, section 29 was unambiguous, this Court explained, so the Court necessarily was confined to reviewing the words of the provision itself in context rather than considering extrinsic evidence of the framers' intent. Id. at 137. This Court could no more add the adjective "private" in front of the word "employees"
Just as this Court could not read "private" into article I, section 29 in Independence, this Court has no authority to read the word "public" into article 1, section 26, or to interpret the word "private" contrary to its generally understood meaning. Indeed, this case is even clearer than Independence, for in that case the word "employees" had no adjective at all modifying it and this Court said it could not read the word "private" into such silence. But article I, section 26 affirmatively limits its reach to private property. The meaning of this language is plain. It does not give a public entity a constitutional right to just compensation for the taking of its property.
MSD's only countervailing argument is to cite two non-Missouri cases, one federal and one arising in California, to support its legal and policy arguments that a public entity should not be treated differently than private entities are treated under the Missouri Constitution. Neither supports this position.
As MSD notes, United States v. 50 Acres of Land, 469 U.S. 24, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984), holds that the term "private property" as used in the takings clause of the 5th Amendment to the United States Constitution encompasses all non-federal property, including both individually held and state and local government property. But the context of its discussion was an argument as to whether local governments should receive greater compensation than private landowners. 469 U.S. at 26-27, 105 S.Ct. 451. 50 Acres of Land determined they should not, for reasons not apposite here. In so doing, it cited United States v. Carmack, 329 U.S. 230, 242, 67 S.Ct. 252, 91 L.Ed. 209 (1946), for the point that the federal government's power of eminent domain is a matter of federal supremacy necessary to carry out its federal government function, so it follows the federal government owes just compensation "when it takes another's property for public use in accordance with the federal sovereign power to appropriate it." Carmack, 329 U.S. at 241-42, 67 S.Ct. 252.
But Carmack also specifically said its rationale does not apply when the taking is of public property within one state, for when "a sovereign state transfers its own public property from one governmental use to another, or when the Federal Government takes property from state ownership merely so as to put it to a federal public use for which the state already holds it in trust, a like obligation does not arise to pay just compensation for it."
Other states accordingly have recognized that the rationale of 50 Acres of Land does not require a state or local public entity to compensate another state or local public entity for the taking of its property (absent a constitutional or statutory provision expressly so providing). For instance, City of Evanston v. Regional Transportation Authority, 202 Ill.App.3d 265, 147 Ill.Dec. 559, 559 N.E.2d 899, 905-06 (1990), held that "there is no authority that private property within the meaning of the 5th Amendment includes the public property of a political subdivision taken by another political subdivision of the same state."
The Supreme Court of Georgia similarly rejected the relevance of 50 Acres of Land to state proceedings, holding that a state constitutional requirement of just compensation for the taking of "private property" did not require just compensation for the taking of "public" lands in a state condemnation action because "[t]he relationship between the federal government and a state or a city is certainly different from the relationship between a state and a city." Dep't of Transp. v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327, 334, n. 5 (1985).
This Court agrees. Both MSD and the City are public entities of the state of Missouri. The State has power within its own sphere to shift uses of public property and allocate costs. The decision whether to require just compensation for the taking of one public entity's property by another is for the people or the legislature, not for this Court. At this time no state constitutional provision or statute provides Missouri public entities with the right to just compensation for property taken by another Missouri public entity.
The only other case cited by MSD, Marin Mun. Water Dist. v. City of Mill Valley, 202 Cal.App.3d 1161, 249 Cal.Rptr. 469 (Cal.App.1988), is even less relevant. Marin recognizes that California's constitutional provision requiring just compensation for the taking of "private property" by eminent domain does not apply to the unintentional taking of other public property in California. Id. at 1165, 249 Cal.Rptr. 469. But, Marin said, compensation for such a taking is nonetheless required under California law because in California "the law of inverse condemnation is not simply the mirror image of the law of eminent domain. Despite the constitutional basis of inverse condemnation, these unintentional damage cases are based primarily
To the extent that Marin conflated the concepts of tort and constitutional law to turn inverse condemnation into a tort cause of action rather than a constitutional one, it is inconsistent with Missouri law. In Missouri, the right to sue for inverse condemnation arises solely from the state constitution. Shade v. Missouri Highway & Transp. Comm'n, 69 S.W.3d 503, 510 (Mo.App. W.D.2001), citing Heins Implement Co. v. Highway & Transp. Comm'n, 859 S.W.2d 681 (Mo. banc 1993), abrogated in part on other grounds by Southers v. City of Farmington, 263 S.W.3d 603, 614 n. 13 (Mo. banc 2008). Like California, Missouri permits a public entity to recover in tort for damage to its property by another public entity. But it does so not through inverse condemnation but by considering whether a plaintiff has properly pleaded and proved a tort cause of action, including whether it has shown that sovereign immunity has been waived, an issue to which the Court now turns.
MSD argues that even if it cannot sue the City for inverse condemnation of its publicly owned property, it can sue the City in negligence and trespass for that same conduct. MSD recognizes that if the City's allegedly tortious conduct occurred as part of a governmental non-ministerial function rather than in the course of a proprietary function, then sovereign immunity would shield it from tort liability if the City were sued by a private person or entity. See, e.g., Southers, 263 S.W.3d at 609; accord, Junior College Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 446-49 (Mo. banc 2004) ("Municipal corporations traditionally have had immunity, however, for those actions they undertake as a part of the municipality's governmental functions — actions benefiting the general public. Municipal corporations do not enjoy sovereign immunity in tort while performing proprietary functions"). But, MSD argues, sovereign immunity does not shield a public entity from liability for torts committed against another public entity.
MSD cites no case or statutory authority for its argument that one public entity cannot claim sovereign immunity in a suit brought by another public entity. Instead,
Sovereign immunity is:
Black's Law Dictionary at 1396 (6th ed.1990).
Missouri courts have recognized the common law rule of sovereign immunity since 1821. Southers, 263 S.W.3d at 609. "The rule is that the state, by reason of its sovereign immunity, is immune from suit and cannot be sued in its own courts without its consent.... The respondent does not now have, and cannot acquire jurisdiction of the person of the state in the absence of a waiver by the state of its sovereign immunity and its consent to be sued." State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801 (Mo. banc 1965). In other words, sovereign immunity applies to the government and its political subdivisions unless waived or abrogated or the sovereign consents to suit. Bush v. State Hwy. Comm'n, 329 Mo. 843, 850, 46 S.W.2d 854 (Mo.1932) ("The proposition that the state is not subject to tort liability without its consent is too familiar to deserve extended citations").
This Court did announce an abrogation of sovereign immunity in all tort cases — and, therefore, in suits by one public entity against another — in Jones v. State Highway Comm'n, 557 S.W.2d 225 (Mo. banc 1977). But the Missouri legislature reinstated sovereign immunity as it existed at common law prior to Jones except to the "extent waived, abrogated or modified by statute." § 537.600.
Section 537.600 itself waives sovereign immunity only for injuries resulting from public employees' negligent operation of a motor vehicle in the course of employment and for injuries caused by dangerous conditions of the public entity's property. Section 537.610 waives sovereign immunity in certain circumstances involving insurance coverage. And, in the case of a political subdivision, as noted, there is no sovereign immunity for proprietary or ministerial governmental functions. See Southers, 263 S.W.3d at 609. But neither of these sections, nor any other statute or case, carve out an exception to sovereign immunity for suits by one public entity against another.
This Court has recognized that "the legislative intent [in reversing Jones] was not to carve out legislative exceptions to what under Jones became a judicial abrogation of sovereign immunity, but was, rather, to overrule Jones and to carve out limited exceptions to a general rule of immunity." Bartley v. Special Sch. Dist. of St. Louis Cnty., 649 S.W.2d 864, 868 (Mo. banc 1983). "[W]e are bound to hold that statutory provisions that waive sovereign immunity must be strictly construed." Id. This Court cannot read into the statute an exception to sovereign immunity or imply waivers not explicitly created in the statute. Fort Zumwalt School Dist. v. State, 896 S.W.2d 918, 923 (Mo.banc 1995); State ex rel. Cass Med. Ctr. v. Mason, 796 S.W.2d 621, 623-24 (Mo. banc 1990).
In other words, in the absence of an express statutory exception to sovereign
Bartley, 649 S.W.2d at 868 (emphasis added).
Bartley concluded that if the plaintiffs did not fit within the pre-Jones exceptions for proprietary functions or where insurance was purchased, "[a]ny remedy which plaintiffs have under the facts of this case must be found within one of the exceptions to sovereign immunity created by section 537.600, et seq., and none exists." Id. That analysis has direct application here. In the absence of a specific statutory waiver of sovereign immunity or a specific pre-Jones exception to sovereign immunity for suits between public entities, sovereign immunity applies, for it is the rule — not the exception — even in the absence of prior cases specifically addressing this issue.
In any event, prior Missouri cases do at least inferentially recognize that one sovereign can assert sovereign immunity as a defense to a suit by another sovereign. For instance, in Junior College Dist. of St. Louis, 149 S.W.3d at 446-49, this Court held that St. Louis city was acting in a proprietary capacity and, so, sovereign immunity was waived. The necessary implication is that, had the city been acting in a governmental, non-ministerial capacity, sovereign immunity would have applied. Id.
Similarly, Board of Education of the City of St. Louis v. State, 134 S.W.3d 689, 693-94 (Mo.App. E.D.2004), held that St. Louis city waived its sovereign immunity from suit by the board of education when it "consented to be sued under the terms of a settlement agreement." Consent would not have been required had sovereign immunity not applied to suits between public entities. And, while these two cases were decided after the reinstatement of sovereign immunity in 1977, neither purported to be applying a new doctrine or to be abrogating a previously recognized exception for suits between public entities. There simply is no such exception.
Nichols v. United States, 74 U.S. 122, 126, 7 Wall. 122, 19 L.Ed. 125 (1868). The doctrine is intended to lessen the expense and delay of lawsuits and to allow predictability as to the monetary expenses and needs of a public entity. Further, to permit one entity to recover from another would just shift the burden caused by the tort between public entities. On the other hand, MSD is correct that there are countervailing public policies that might favor restricting sovereign immunity in the case of suits between public entities, such as by providing more incentives to public entities to act carefully and non-negligently. But the balancing of these policy concerns is for the legislature, not this Court. This Court will not judicially create an exception to the common law rule of sovereign immunity for suits by one public entity against another.
For the reasons set out above, the trial court did not err in entering judgment in favor of the City. MSD failed to state an inverse condemnation claim and sovereign immunity bars MSD's tort claims against the City. The judgment is affirmed.
Breckenridge, C.J., Draper, Wilson Teitelman and Russell, JJ., concur; Fischer, J., concurs in separate opinion filed.
Zel M. Fischer, Judge, concurring.
I concur in the result of the principal opinion but write separately because I do not agree with the principal opinion's suggestion it is not appropriate to consider the intent of the drafters of our Constitution, or the historical context in which a provision was adopted, for purposes of interpretation.
This Court has long referred to the constitutional debates when interpreting the language of a constitutional provision "in order to arrive at the reason and purpose of the Constitution." State ex rel. Aquamsi Land Co. v. Hostetter, 336 Mo. 391, 79 S.W.2d 463, 469 (1934) (internal quotations omitted); see also Ensor v. Dir. of Revenue, 998 S.W.2d 782, 784 n. 6 (Mo. banc 1999) (relying on the debates for the proper context of the language of a constitutional provision in holding a statute was constitutional); Household Fin. Corp. v. Shaffner, 356 Mo. 808, 203 S.W.2d 734, 737 (1947) (noting it is "proper" to consider the constitutional debates when interpreting a constitutional provision).
This case provides an ideal example of why reference to the constitutional debates is a proper aid for interpretation and context. In adopting article I, section 26, the debates show a desire to maintain the language of article II, section 21 of the Missouri Constitution of 1875 — that the state cannot take private property for public use without just compensation. See Debates of the Missouri Constitution 1945, at p. 1719; see also Mo. Const. art. II, § 21 (1875). Intertwined in the maintenance of the previous language is that the right to be free from having private property taken for public use is reserved to citizens of Missouri. Debates of the Missouri Constitution 1945, at 1718 ("There are no limitations safeguarding the citizen with reference to his property, and I desire to point out first, as a fundamental principle of dealing with this article on the Bill of Rights as I understand it, we are here to write a declaration of right on the part of the citizens against a Government even though the citizens make up that government.") (emphasis added).
As the principal opinion correctly points out, MSD cites no case law "that has interpreted the word `private' to include `public' in its meaning." Principal op. at 917.
Therefore, while I concur in the result of the principal opinion, MSD is not entitled to the protections found in our state Constitution's Bill of Rights, under article I, section 26, because it is not a citizen.
Id. at 414-15 (internal citations and quotations omitted).
