(1) The statute (Sec. 7840, R.S. 1929), under which the condemnation proceedings were had by and in the county court of St. Louis county, and said proceedings are invalid and void because they conflict with the provisions of Section 21, Article II, of the Missouri Constitution. Louisiana F.P. Road Co. v. Pickett, 25 Mo. 539; Chicago, F.S. C. Railroad Co. v. McGrew, 104 Mo. 290, 15 S.W. 931; Sedalia v. Railroad Co., 17 Mo. App. 109; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; McGrew v. Paving Co., 247 Mo. 549, 155 S.W. 411; Householder v. Kansas City, 83 Mo. 488; Greenwell v. Wills Sons, 210 Mo. App. 651, 239 S.W. 578; Redman v. Railroad, 33 N.J. Eq. 165; Kime v. Cass County, 71 Neb. 677, 101 N.W. 2; Carrico v. Calvin, 92 Ky. 342, 17 S.W. 854; Bushart v. Fulton County, 183 Ky. 471, 209 S.W. 499; Watkins v. Board of Commissioners, 70 Okla. 305, 174 P. 525; St. Louis v. Dorr, 145 Mo. 485, 41 S.W. 1094, 46 S.W. 976, quoting from People ex rel. v. Allen, 42 N.Y. 384; Smith v. Sedalia, 152 Mo. 302, 53 S.W. 907; Watkins v. Board of Comrs., 70 Okla. 305, 174 P. 525; Johnstone v. Ry. Co., 245 Mich. 65, 222 N.W. 325, 67 A.L.R. 383; Kennet, etc., Railroad Co. v. Senter, 83 Mo. App. 184. Payment is condition precedent to obtaining title; State ex rel. v. Lubke, 15 Mo. App. 152; Kennedy v. Indianapolis, 103 U.S. 599, 26 L.Ed. 550; United States v. Railroad Co., 176 F. 969; Poulan v. Railroad Co., 123 Ga. 605, 51 S.E. 657; Athens Terminal Co. v. Athens Fdy. Mach. Works, 129 Ga. 393, 58 S.E. 891; Big Lost River Irr. Co. v. Davidson, 21 Idaho, 160, 121 P. 88; Chicago, K. W. Railroad Co. v. Watkins, 43 Kan. 50, 22 P. 985; St. Joseph D.C. Railroad Co. v. Callender, 13 Kan. 496; Williams v. Wedding, 165 Ky. 361, 176 S.W. 1176; Bushart v. Fulton County, 183 Ky. 471, 209 S.W. 499; Great Northern Railroad Co. v. Benjamin, 51 Mont. 167, 149 P. 968; Mar
(Emphasis ours.) Watkins et al. v. Board of County Commissioners of Stephens County et al., 70 Okla. 305, 174 P. 523. Justice Phelps, in the case of the Board of County Commissioners of Rogers County v. Baxter et al., 113 Okla. 280, 241 P. 752, has very well said:
Koffler Reppy, supra note 3 at 85. Watkins v. Board of Com'rs, 1918 OK 445, 174 P. 523, 524-25; Koch et al. v. Oklahoma Turnpike Authority, 1953 OK 148, ยถ 18, 257 P.2d 790, 794; Public Service Co. v. B. Willis, C.P.A., 1997 OK 78, ยถ 11, 941 P.2d 995, 999. ยถ 4 Special proceedings no longer form a separate litigation class in Oklahoma.
Before an entity having eminent domain authority can appropriate private land to its use, all of the steps legally requisite to using the land must have been taken. See Watkins v. Board of Commissioners of Stephens County, 70 Okla. 305, 174 P. 523 (1918), where the Court said at page 525: "Before, however, the board of county commissioners acting for the county can exercise the right to appropriate private land for any purpose, all of the steps legally prerequisite to using the land for such purpose must have been taken.
The Court held that the right to condemn must be established as a prerequisite to the right of possession. 203 Okla. at 309, 220 P.2d at 695. Moreover, in Watkins v. Board of Commissioners of Stephens County, 70 Okla. 305, 309, 174 P. 523, 525 (1918), the Court specifically held that an injunction was a proper remedy to prevent the appropriation of private property for a county road without complying with constitutional and statutory provisions prescribing the procedure to be used in acquiring the property. According to Wybrant and Watkins, a public body having the power of condemnation can be enjoined from appropriating private property for public use until it has initiated condemnation proceedings and had its right to condemn the property finally determined.
We think this contention, as a general rule, under a statute like our own, is correct. * * *" For authority touching upon the proposition that it is incumbent upon a person wishing to acquire property for a public purpose, to attempt to purchase the property before instituting condemnation proceedings, see Watkins et al. v. Board of Com'rs of Stephens County et al., 70 Okla. 305, 174 P. 523; Delfield v. City of Tulsa et al., 191 Okla. 541, 131 P.2d 754, 143 A.L.R. 1032; 18 Am.Jur. "Eminent Domain", Sec. 319, p. 962, and 29 C.J.S. Eminent Domain ยง 224, p. 1163. The statute (69 O.S. 1951 ยง 658[ 69-658]) last referred to in the foregoing quotation relates solely to the exercise of the power of condemnation by the Oklahoma Turnpike Authority. It is stated in part in said section that "whenever a reasonable price cannot be agreed upon, * * * the Authority is hereby authorized and empowered to acquire (property), by the exercise of the power of condemnation."
Any attempt to condemn private property for public use without notice to the landowner, in violation of constitutional requirements, is void even though done under color of statutory authority. Const. Art. 2, Section 24; Watkins v. Board of Com'rs of Stephens County, 70 Okla. 305, 174 P. 523. Where the condemning authority fails to join the owner the condemner does not acquire any interest adverse to the owner. The proceedings are invalid as to such party and his interest in the property is not divested.
The authorities so hold. 18 Am.Jur., Eminent Domain, ยง 319; Watkins v. Board of County Com'rs of Stephens County, 70 Okla. 305, 174 P. 523; State ex rel. Bremerton Bridge Co. v. Superior Court for Kitsap County, 194 Wn. 7, 76 P.2d 990, and authorities therein cited. This rule, however, has its exceptions.
A similar situation obtains when an existing power to condemn is sought to be exercised without compliance with constitutional requirements. Watkins et al. v. Board of Com'rs of Stephens County et al., 70 Okla. 305, 174 P. 523. Therefore the establishment of the right to condemn is a prerequisite to any right of possession by the condemnor.
The complaint of defendant that the court erred in refusing to give requested instruction No. 12 is wholly lacking in merit. The requested instruction was, in substance, a quotation of the 5th paragraph of the syllabus of Watkins v. Board of County Commissioners, 70 Okla. 305, 174 P. 523, and while correct as an abstract proposition of law, had no application to the issue which the jury was called upon to determine. Defendant complains that instruction No. 3 as given by the court was erroneous in that it advised the jury to disregard and not consider any increase "or decrease" in the market value of the lands due to the construction or proposed construction of the Grand River Dam Project.