2002 Regular Session
To: Judiciary A
By: Representative Chism, Smith (39th)
AN ACT TO AMEND SECTIONS 11-27-3, 11-27-11, 11-27-13, 11-27-15, 11-27-17, 11-27-19, 11-27-23, 11-27-25, 11-27-27 AND 11-27-29, MISSISSIPPI CODE OF 1972, TO REVISE EMINENT DOMAIN PROCEEDINGS; TO PROVIDE FOR THE USE OF A THREE-MEMBER COMMISSION INSTEAD OF A JURY; TO PROVIDE FOR PAYMENT OF COSTS INCURRED BY THE PROPERTY OWNER IF SUCH OWNER PREVAILS; TO REVISE THE APPEALS PROCESS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-27-3, Mississippi Code of 1972, is amended as follows:
11-27-3. A special court of eminent domain is hereby created, to consist of a judge, a three-member commission appointed by the judge, all of which shall have a background in real estate and one (1) of which shall be a licensed attorney, and such other officers and personnel as hereinafter set out, and it shall have and exercise the jurisdiction and powers hereinafter enumerated. The original powers and jurisdiction shall be and is hereby fixed in the county court in each county that has elected to come under the provisions of Section 9-9-1, Mississippi Code of 1972, or that may hereafter come under the provisions of said Section 9-9-1, and in every other county of this state, the original powers and jurisdiction shall be and is hereby fixed in the circuit court of such county, which said powers and jurisdiction may be exercised in full either in termtime or vacation, or both.
SECTION 2. Section 11-27-11, Mississippi Code of 1972, is amended as follows:
11-27-11. The circuit clerk shall deliver a copy of said order of the court fixing the time and place for the hearing to the sheriff of the county and to the official court reporter. The sheriff shall attend the court and execute all process. The court reporter shall take the testimony. * * * All acts and actions of the clerk and sheriff, * * * shall be filed by the clerk and made a part of the record in the cause.
SECTION 3. Section 11-27-13, Mississippi Code of 1972, is amended as follows:
11-27-13. Each different property, identified by separate ownership, shall constitute a separate civil action and shall require a separate trial, unless otherwise agreed by all parties with the approval of the court. Trial shall be to a commission which shall be selected as provided in Section 11-27-3. Alternatively, trial may be to the court, as provided by the Mississippi Rules of Civil Procedure.
SECTION 4. Section 11-27-15, Mississippi Code of 1972, is amended as follows:
11-27-15. Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the complaint and in the same court where the complaint is pending, serve and file a motion to dismiss under the Mississippi Rules of Civil Procedure for failure to state a claim upon which relief can be granted on any of the following grounds: (1) that the plaintiff seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged. Any such motion, if served and filed, shall be heard and decided by the judge as a preference proceeding, without a commission, prior to the hearing on the complaint. Any party may appeal directly to the Supreme Court from an order overruling or granting any such motion to dismiss, as in other cases, but if the order be to overrule the motion, the appeal therefrom shall not operate as a supersedeas and the court of eminent domain may nevertheless proceed with the trial on the complaint. Any appeal from an order overruling or granting a motion to dismiss shall be a preference action in the Supreme Court and advanced on the docket as appropriate.
SECTION 5. Section 11-27-17, Mississippi Code of 1972, is amended as follows:
11-27-17. When the commission shall be so selected, the commissioners shall be sworn as follows: "I do solemnly swear or affirm that as a member of this commission I will discharge my duty honestly and faithfully, to the best of my ability, and that I will a true verdict render according to the evidence, without fear, favor, or affection, and that I will be governed by the instructions of the court. So help me God."
SECTION 6. Section 11-27-19, Mississippi Code of 1972, is amended as follows:
11-27-19. Evidence may be introduced by either party, and the commission may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation and actions as may be proper in the premises. Evidence of fair market value shall be established as of the date of the filing of the complaint. Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the commission from the date of the filing of the complaint until payment is actually made; provided, however, that interest need not be paid on any funds deposited by the plaintiff and withdrawn by the defendants prior to judgment. At the conclusion of the trial, the court shall instruct the commission in accordance with the Mississippi Rules of Civil Procedure.
SECTION 7. Section 11-27-23, Mississippi Code of 1972, is amended as follows:
11-27-23. In the trial of all cases provided for herein, nine (9) jurors may bring in a verdict as in other civil cases. The verdict of the commission shall be in the following form: "We, the commission, find that the defendant (naming him) will be damaged by the acquisition of his property for the public use, in the sum of ________ Dollars."
SECTION 8. Section 11-27-25, Mississippi Code of 1972, is amended as follows:
11-27-25. Upon the return of the verdict, the court shall enter a judgment as follows, viz: "In this case the claim of (naming him or them) to have condemned certain lands named in the complaint, to wit: (here describe the property), being the property of (here name the owner), was submitted to a commission composed of (here insert their names) on the ______ day of _______, A. D., ____, and the commission returned a verdict fixing said defendant's compensation and damages at __________ Dollars, and the verdict was received and entered. Now, upon payment of the said award, with legal interest from the date of the filing of the complaint, ownership of the said property shall be vested in plaintiff and it may be appropriated to the public use as prayed for in the complaint. Let the plaintiff pay the costs, for which execution may issue."
SECTION 9. Section 11-27-27, Mississippi Code of 1972, is amended as follows:
11-27-27. Upon the return of the verdict and entry of the judgment, the applicant shall pay to defendants, or to the clerk if defendants absent themselves, the differences between the judgment and deposits previously made, if any; shall pay the costs of court, including the cost of commission service as is otherwise provided by law for the court in which the case is tried. Then, ownership of the property described in the petition shall be vested in petitioner and it may use said property as specified in the petition. If deposits previously made exceed the judgment, then the clerk or defendant to whom disbursement thereof has been made, as the case may be, shall pay such excess to the petitioner. If the party seeking to take the property shall lose, the party shall pay all expenses of the property owner incurred as a result of the proceedings.
SECTION 10. Section 11-27-29, Mississippi Code of 1972, is amended as follows:
11-27-29. (1) Every party shall have the right to appeal directly to the Chancery Court from the judgment entered by the commission in the special court of eminent domain, whether tried in county court or circuit court, by giving notice within ten (10) days from the date of the judgment or final order entered by the court to the court reporter to transcribe the record as taken and by prepaying all costs that may be adjudged against him; and said notice to the court reporter shall be given and the costs shall be paid as is otherwise required by law * * *. If the judgment be in excess of the sum, if any, deposited, and the plaintiff, other than the State of Mississippi or any political subdivision thereof, desires an appeal, he shall deposit a sum, or a good and sufficient surety bond with a surety company authorized to do business in the State of Mississippi acceptable to the clerk, equal to double the amount of the judgment, less the amount of the deposit, if any, which shall be held exclusively to secure all damages assessed against plaintiff. In any case where the deposit exceeds the compensation to be paid the defendants as determined by the final judgment, the excess shall be returned to the plaintiff. If the appeal is by the defendant, it shall not operate as a supersedeas, nor shall the right of the plaintiff to enter in and upon the land and to appropriate the same to public use be delayed. If the appeal be by the State of Mississippi or any political subdivision thereof, no bond or prepayment of costs shall be required, except the * * * filing fee as required * * *.
(2) The term of a special court of eminent domain shall begin when the court is convened as provided by statute and shall continue for ten (10) days immediately following the entry and filing of a judgment or final order with the clerk of the court, and thereafter the court shall have jurisdiction to dispose of any post trial motions or proceedings filed within said ten (10) days. The jurisdiction of a special court of eminent domain shall expire upon the entry and filing with the clerk of a final judgment or order disposing of any post trial motions or proceedings.
(3) An appeal from the chancery court shall be made to the Supreme Court.
SECTION 11. This act shall take effect and be in force from and after July 1, 2002.