MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Transportation

By: Representative Compretta

AN ACT TO AUTHORIZE AND PRESCRIBE AN ALTERNATIVE PROCEDURE THAT MAY BE USED BY THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION AND THE MISSISSIPPI TRANSPORTATION COMMISSION TO INSTITUTE EMINENT DOMAIN AND CONDEMNATION PROCEEDINGS FOR THE ACQUISITION OF LAND, EASEMENTS AND OTHER INTERESTS IN LAND; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. For the purposes of this act the following terms have the meanings ascribed to them unless the context in which such terms are used otherwise requires:

(a) "Department" means the Mississippi Transportation Commission acting through the Mississippi Department of Transportation.

(b) "Judge" means the resident judge of the circuit or county court in the district where the cause is pending, or a special judge residing in the district, or the judge of the circuit or county court assigned to hold the courts of the district, or the emergency or special judge holding court in the county where the cause is pending.

SECTION 2. (1) In any case in which the Mississippi Transportation Commission or the Mississippi Department of Transportation is authorized by law to exercise the authority of eminent domain or condemnation, the department, in its discretion, may elect to follow the procedures and be subject to the provisions of this act or to follow the procedures and be subject to the provisions of Chapter 27, Title ll, Mississippi Code of 1972.

(2) If, in a particular case, the Transportation Department elects to exercise its authority of eminent domain and condemnation under the provisions of this act, it shall institute a civil action by filing in the circuit or county court of any county in which the land is located a complaint and a declaration of taking that such land, easement, or interest therein is thereby taken for the use of the department.

(3) The declaration shall contain or have attached thereto the following:

(a) A statement of the authority under which and the use for which the land is taken;

(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof; (c) A statement of the estate or interest in the land taken for public use and a description of area taken for the identification thereof;

(d) The names and addresses of those persons who the department is informed and believes may have or claim to have an interest in the lands, so far as the same can be by reasonable diligence ascertained, and if any such persons are infant, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated; and

(e) A statement of the sum of money which constitutes the fair market value as determined by the department to be just compensation for the taking.

(4) The complaint shall contain or have attached thereto the following:

(a) A statement of the authority under which and the public use for which the land is taken;

(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof;

(c) A statement of the estate or interest in the land taken for public use and a description of the area taken sufficient for the identification thereof;

(d) The names and addresses of those persons who the department is informed and believes may have or claim to have an interest in the lands, so far as the same can be by reasonable diligence be ascertained and if any such persons are infants, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated;

(e) A statement as to such liens or other encumbrances as the department is informed and believes are encumbrances upon the real estate and can by reasonable diligence be ascertained; and

(f) A prayer that there be a determination of just compensation in accordance with the provisions of this act.

(5) The filing of the complaint and the declaration of taking shall be accompanied by the deposit of the sum of money, the fair market value, determined by the Transportation Department to be just compensation for the taking, and upon the filing of the complaint and the declaration and deposit of the sum, summons shall be issued and together with a copy of the complaint and the declaration of taking and notice of the deposit shall be served upon the person named therein in the manner now provided for the service of process in civil actions. The department may amend the complaint and declaration of taking and may increase the amount of its deposit with the court at any time while the proceeding is pending, and the owner shall have the same rights of withdrawal of this additional amount as set forth in Section 4 of this act.

SECTION 3. (1) Upon the filing of the complaint and the declaration of taking and deposit in court, to the use of the person entitled thereto, of the amount of the compensation stated in the declaration, title to the land or such other interest therein specified in the complaint and the declaration of taking, together with the right to immediate possession hereof, shall vest in the Mississippi Transportation Commission, and the judge shall enter such orders in the cause as may be required to place the department in possession and title. Thereafter, the land shall be deemed to be condemned and taken for use of the Transportation Department and the right to just compensation therefor shall vest in the person owning the property or any compensable interest therein at the time of the filing of the complaint and the declaration of taking and deposit of the money in court. Compensation shall then be determined and awarded in the action and established by judgment therein.

(2) If there is a life estate and a remainder, either vested or contingent, in lieu of the investment of the proceeds of the amount determined and awarded as just compensation to which the life tenant would be entitled to the use during the life estate, the court, in its discretion, may order the value of the life tenant's share during the probable life of such life tenant to be ascertained as provided by law and paid directly to the life tenant out of the final award as just compensation established by the judgment in the cause, and the life tenant may have the relief provided for in Section 4 of this act.

(3) On and after July 1, 1997, the department, at the time of the filing of the complaint and declaration of taking and deposit of fair market value compensation, shall record a memorandum of action in the land deed records of the chancery clerk in all counties in which the land involved therein is located and the memorandum shall be recorded among the land records of the county. Upon the amending of any complaint and declaration of taking affecting the property taken, the department shall record a supplemental memorandum of action. The memorandum of action shall contain the following:

(a) The names of those persons who the department is informed and believes may have or claim to have an interest in the lands and who are parties to the action;

(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof;

(c) A statement of the estate or interest in the land taken for public use; and

(d) The date of institution of the action, the county in which the action is pending, and such other reference thereto as may be necessary for the identification of the action.

SECTION 4. (1) The person named in the complaint and declaration of taking may apply to the court for disbursement of the money deposited in the court, or any part thereof, as full compensation, or as a credit against just compensation without prejudice to further proceedings in the cause to determine just compensation. Upon such application, the judge, unless there is a dispute as to title, shall order that the money deposited be paid forthwith to the person entitled thereto in accordance with the application. The judge shall have power to make such orders with respect to encumbrances, liens, rents, taxes, assessments, insurance and other charges, if any, as shall be just and equitable.

(2) No notice to the department of the hearing upon the application for disbursement of deposit shall be necessary, but a copy of the order disbursing the deposit shall be served upon the Secretary of the Transportation Commission, or such other process agents as may be designated by the Transportation Department.

SECTION 5. (1) Any person whose property has been taken by the department by the filing of a complaint and a declaration of taking, may within the time hereinafter set forth file an answer to the complaint only praying for a determination of just compensation. No answer shall be filed to the declaration of taking and notice of deposit. The answer, in addition, shall contain the following:

(a) Such admissions or denials of the allegations of the complaint as are appropriate;

(b) The names and addresses of the persons filing the answer, together with a statement as to their interest in the property taken; and

(c) Such affirmative defenses or matters as are pertinent to the action.

(2) A copy of the answer shall be served on the department, or such other process agents as may be designated by the department, in Jackson, Mississippi, provided that failure to serve the answer shall not deprive the answer of its validity. The affirmative allegation of the answer shall be deemed denied. However, the department may file a reply within thirty (30) days from receipt of a copy of the answer.

(3) The department, within ninety (90) days from the receipt of the answer, shall file in the cause a plat of the land taken and such additional area as may be necessary to properly determine the damages, and a copy thereof shall be mailed to the parties or their attorney; however, the department shall not be required to file a map or plat in less than six (6) months from the date of the filing of the complaint.

SECTION 6. Any person named in and served with a complaint and declaration of taking shall have twelve (12) months from the date of service thereof to file an answer. Failure to answer within the time shall constitute an admission that the amount deposited is just compensation and shall be a waiver of any further proceeding to determine just compensation. In such event, the judge shall enter final judgment in the amount deposited and order disbursement of the money to the owner. However, at any time before the entry of the final judgment, the judge, for good cause shown and after notice to the plaintiff, may extend the time for filing answer for thirty (30) days.

SECTION 7. After the filing of the plat, the judge, upon motion and ten (10) days' notice by either the department or the owner, either in or out of term, shall hear and determine all issues raised by the pleading other than the issue of just compensation, including, if controverted, questions of necessary and proper parties, title to the land, interest taken and area taken.

SECTION 8. (1) The judge may appoint some competent attorney to appear for and protect the rights of any party or parties in interest who are unknown, or whose residence is unknown and who has not appeared in the proceeding by an attorney or agent. The judge shall appoint guardians ad litem for such parties as are minors, incompetents, or other parties who may be under a disability and without general guardian. The judge may make additional parties as are necessary to the complete determination of the proceeding and may enter such other orders, either in law or equity, as may be necessary to carry out the provisions of this act.

(2) Upon the coming on of the cause for hearing pursuant to Section 6 of this act, or upon the coming on of the cause for trial, the judge, in order that the material ends of justice may be served, upon his own motion, or upon motion of any of the parties thereto and upon proper showing that the effect of condemnation upon the subject property cannot presently be determined, in his discretion, may continue the cause until the highway project under which the appropriation occurred is open to traffic, or until such earlier time as, in the opinion of the judge, the effect of condemnation upon the property may be determined.

SECTION 9. (1) Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the department and no complaint and declaration of taking has been filed by the department within twenty-four (24) months of the date of the taking of the affected property or interest therein or the completion of the project involving the taking, whichever occurs later, may file a complaint in the circuit or county court setting forth the names and places of residence of the parties, so far as the same can by reasonable diligence be ascertained, who own or have, or claim to own or have estates or interests in the real estate. If any such persons are under a legal disability, it must be so stated, together with a statement as to any encumbrances on the real estate. The complaint further shall allege with particularity the facts which constitute the taking together with the dates that they allegedly occurred. The complaint shall describe the property allegedly owned by the parties and shall describe the area and interests allegedly taken. Upon the filing of the complaint, summons shall issue and, together with a copy of the complaint, shall be served on the department. The allegations of the answer shall be deemed denied; however, the department, within sixty (60) days of service of summons and complaint, may file an answer. If the taking is admitted by the department, it, at the time of filing answer, shall deposit with the court the fair market value of compensation for the taking and notice of the deposit shall be given to the owner. The owner may apply for disbursement of the deposit and disbursement shall be made in accordance with applicable provision of Section 4 of this act. If a taking is admitted, the department, within ninety (90) days of the filing of the answer to the complaint, shall file a map or plat of the land taken. This procedure shall be followed for the purpose of determining all matters raised by the pleading and the determination of just compensation.

(2) The plaintiff, at the time of filing of the complaint, shall record a memorandum of action in the land deed records in the office of the chancery clerk in all counties in which the land involved is located. The memorandum of action must contain the following:

(a) The names of those persons who the plaintiff is informed and believes may have or claim to have an interest in the lands and who are parties to the action;

(b) A description of the entire tract or tracts affected by the alleged taking sufficient for the identification thereof;

(c) A statement of the estate or interest in the land allegedly taken for public use; and

(d) The date on which plaintiff alleges the taking occurred, the date on which the action was instituted, the county in which it was instituted and such other reference thereto as may be necessary for the identification of the action.

SECTION 10. The following shall be the measure of damages to be followed by the jury or judge who determines the issue of just compensation:

(a) If only a part of a tract is taken, the measure of just compensation for the taking shall be the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remainder immediately after the taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for department purposes.

(b) If the entire tract is taken the measure of just compensation for the taking shall be the fair market value of the property at the time of taking.

SECTION 11. To the amount awarded as just compensation by the jury or judge, the judge, as part of just compensation, shall add interest at the legal rate for judgments on the amount from the date of taking to the date of judgment; but interest shall not be allowed from the date of deposit on so much thereof as shall have been paid into court as provided in this act.

SECTION 12. An order of the court shall fix the time and place for the hearing either in term time or vacation and a certified copy given to the court administrator. If the hearing is set during term time, it shall be given priority over any other matter and shall utilize the regular jury panel that has been summoned. If the hearing is set in vacation time the order of the court shall direct the clerk to summon the necessary jurors to appear at the time and place designated by the order.

SECTION 13. (1) Each different property, identified by separate ownership, shall constitute a separate civil action and shall require trial, unless otherwise agreed by all parties with the approval of the court. Trial shall be to a jury of twelve (12), which shall be examined and empaneled in accordance with the Mississippi Rules of Civil Procedure. Alternatively, trial may be to the court as provided by the Mississippi Rules of Civil Procedure.

(2) In the trial of all cases provided for in this act, nine (9) jurors may bring in a verdict as in other civil cases. The verdict of the jury may be in the following form: "We, the jury, find that the defendant(s)_________________ is/are entitled to just compensation for the acquisition of his/her/their property for the public use in the sum of $___________."

(3) Upon the return of the verdict by the jury or court, the court shall enter a judgment as follows, viz: "In this case the claim of (plaintiff name) to have condemned certain lands named in the complaint, to-wit: (here describe the property), being the property of (insert defendants' names) on the ______ day of ________________, A.D. ______, and the jury or court having returned a verdict fixing the defendant's just compensation at $___________, the verdict having been received and entered. Now upon payment of the award with legal interest from the date of the filing of the Complaint of the property is vested in plaintiff by virtue of judgment entered herein."

SECTION 14. In all cases of procedure under this act, whenever the mode or manner of conducting the action is not expressly provided for in this act or by the Mississippi Rules of Civil Procedure, or whenever the rules of civil procedure are inapplicable, the judge before whom such proceeding may be pending may make all the necessary orders and rules of procedure necessary to carry into effect the object and intent of this act. The practice in such cases shall conform as nearly as practicable to the practice in other civil actions in the courts.

SECTION 15. Final judgments entered in actions instituted under the provisions of this act shall contain a description of the property affected, together with a description of the property and estate of interest acquired by the department. A copy of the judgment shall be certified and filed in the land deed records in the chancery clerk office of the county in which the land or any part thereof lies.

SECTION 16. If there are adverse and conflicting claimants to the deposit made into the court by the department or the additional amount determined as just compensation, on which final judgment is entered in the action, the judge may direct the full amount determined to be paid into the court by the department, shall release the department from any further involvement and may retain the cause for determination of who is entitled to the monies. By further order in the cause, the court may direct to whom the monies shall be paid and, in its discretion, may order a hearing to ascertain the facts on which such determination and order are to be made.

SECTION 17. The provisions of this act shall not prevent the Transportation Department and the owner from entering into a written agreement whereby the owner agrees and consents that the department may enter upon his property without filing the complaint and declaration of taking and depositing estimated compensation as provided in this act. The department shall have the same rights under such agreement with the owner in carrying on work on such project as it would have by having filed a complaint and a declaration of taking and having deposited estimated compensation as provided in this act.

SECTION 18. The Transportation Department, without having filed a complaint and a declaration as provided in this act, may enter upon any lands and structures to make surveys, borings, soundings, environmental assessments or examinations as may be necessary in carrying out and performing its duties and responsibilities. Any such entry shall not be deemed a trespass or taking within the meaning of this act; however, the department shall make reimbursement for any damage resulting to such land from such activities and the owner, if necessary, shall be entitled to proceed under the provisions of Section 9 of this act to recover for such damages.

SECTION 19. After the taking of all lands on a project and sixty (60) days before the letting of the contract, the Transportation Department shall notify those persons having utilities or encroachments in the right-of-way that they must move and that they may relocate on the outer edge of the right-of-way by permit from the department. The construction contractor shall not have a cause of action against the department because of delays caused by the failure of the utilities or encroachments to be moved.

SECTION 20. A property owner whose property is totally taken in fee simple by the department exercising the power of eminent domain under this act or under any other statute, shall be entitled to reimbursement from the department of the pro rata portion of real property taxes paid that are allocable to a period subsequent to vesting of title in the department, or subsequent to the effective date of possession of such real property, whichever is earlier.

SECTION 21. If the amount of the final judgment is less than the amount deposited by the department pursuant to the provisions of this act, the department shall be entitled to recover the excess of the amount of the deposit over the amount of the final judgment and court costs incident thereto. However, if there are not sufficient funds on deposit to cover the excess, then the department shall be entitled to a judgment for the sum against the person or persons having received the deposit.

SECTION 22. The Transportation Department shall pay all court costs taxed by the court. Either party shall have a right of appeal to the Supreme Court for errors of law committed in any proceedings provided for in this act in the same manner as in any other civil actions and it shall not be necessary that an appeal bond be posted.

The court having jurisdiction of the condemnation action instituted by the department to acquire real property by condemnation shall award the owner any right or title to, or interest in, such real property a sum as will in the opinion of the court reimburse such owner for his reasonable cost, disbursements and expenses, including reasonable attorney fees, appraisal and engineering fees actually incurred because of the condemnation proceedings, if (a) the final judgment is that the department may not acquire real property by condemnation; or (b) the proceedings are abandoned by the department.

SECTION 23. The provisions of this act shall not be considered as amending or repealing any other provisions of law that prescribe a procedure for the acquisition of property through eminent domain or condemnation proceedings but shall be considered as a method and procedure that may be employed by the Mississippi Transportation Commission and the Mississippi Department of Transportation as an alternative to any eminent domain or condemnation proceedings as are otherwise prescribed by law.

SECTION 24. This act shall take effect and be in force from and after July 1, 1997.