Mississippi's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  The State of Mississippi and any of its political subdivisions, including counties and municipalities, have the power of eminent domain to take private property for public use. Additionally, the State has delegated the power of eminent domain by legislative enactment to a number of private entities. These include public utility companies, gas and oil pipeline companies, and other similar companies. It is important to confirm at the outset of any case whether the entity seeking to exercise the power of eminent domain has received a lawful delegation from the State to do so.

• What Are the Legal Requirements for Exercising the Power?

  Under Mississippi law, property can only be condemned for a lawful public use or purpose by an agency or entity that possesses the proper delegation of eminent domain power from the State of Mississippi. In all situations, if the power to condemn exists, just compensation must be paid for the property before it can be taken. In cases in which public funds are used, the condemning authority must make every reasonable effort to acquire the property expeditiously by negotiation before filing suit. The condemning authority is required to establish an amount that it believes to be just compensation and to provide the property owner with a written statement of, and statement of the basis for, the amount established as just compensation. Commencement and trial of an eminent domain action is governed by Miss. Code Ann. § 11-27-1 through 91.
  

• What Limitations or Defenses Exist?

  After an eminent domain case is filed, the property owner may challenge the right of the condemning authority to take the property by timely filing a motion to dismiss under Miss. Code Ann. §11-27-15, which sets forth the following three defenses to the taking:
  
  (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.
  Motions to dismiss on any of the above grounds are decided by the trial judge, not by a jury.
  

• What Constitutes a Public Purpose?

  The Mississippi Constitution limits the use of eminent domain to “public use” and requires the trial court to determine whether the contemplated use is, in fact, a public use. There must be a primary and public purpose for a taking; indirect and speculative purposes are insufficient. Typical uses that satisfy the public use requirement include roads, municipal airports, utility easements, schools, other public buildings, or other projects that serve a public need. The power of eminent domain has been delegated by the state to the Mississippi Major Economic Impact Authority and several regional economic development agencies to acquire land for economic development projects.
  
  Following the U.S. Supreme Court’s decision in Kelo, a ballot initiative proved successful to amend the state constitution to specifically prohibit the government from taking private property by eminent domain and then transferring it to any person, non-governmental entity, public- private partnership, corporation, or other business entity for a ten year period. Two rather broad exceptions are included in the constitutional amendment, however. The ten-year transfer ban does not apply to drainage, road, flood control projects, and many public utilities – including but not limited to telecommunication and natural gas utility products.
  

• How is Just Compensation Determined?

  It is important to note that the Mississippi Constitution protects not only the taking but also the damaging of private property. Thus, Just Compensation in an eminent domain case includes not only the fair market value of the property actually taken but also any damage done to the remaining property resulting from the acquisition and use of the property by the condemning authority. Supposed benefits to the property incident to the public use for which the property being taken are not considered.
  
  Just compensation in eminent domain cases in Mississippi is determined as of the date the complaint is filed by the condemning agency. In all cases this is the date of valuation. In partial taking cases, just compensation is determined by use of the Before and After Rule. Under this rule, the jury must first determine the fair market value of the entire property before the acquisition. It must then determine the fair market value of the part remaining after the acquisition. The difference between the two in Just Compensation. Unfortunately, lost business profits are not recoverable in an eminent domain case in Mississippi.
  

• How Is Fair Market Value Defined?

  The definition of fair market value is the price that a willing buyer will pay and a willing seller will accept for the property as of the date of acquisition, both being informed of the highest and best use of the property, neither being under duress or under any compulsion to either buy or sell, and allowing a reasonable time for exposure on the open market, each having knowledge of the material facts concerning the property. Since value of property is almost always a function of what use the property can be put to, property is valued based upon its “highest and best use” on the date of taking. Often times differences in opinion as to value are attributable to differences in opinion as to highest and best use. Usually, expert real estate appraisers will be called to testify as to their opinions of the property’s fair market value. The property owner is also allowed to testify as to his or her opinion of the value of the property being taken.

• What About Recovering Damages to Remaining Property?

  Just Compensation includes any damage done to the remaining property resulting from the acquisition and use of the property by the condemning authority. In determining damages to the remaining property, supposed benefits to the property incident to the public use for which the property being taken is not considered. This is accomplished by applying the Before and After Rule. Under this rule, the jury must first determine the fair market value of the entire property before the acquisition. It must then determine the fair market value of the part remaining after the acquisition. The difference between the two in Just Compensation.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Unfortunately, reasonable attorney fees, expert fees, and litigation costs are generally not recoverable. Miss. Code Ann. § 11-27-37 provides for the recovery of all reasonable expenses only if the condemning authority fails to pay the verdict within ninety days (absent an appeal), if the suit is dismissed, or if the Court determines the condemning authority is not entitled to condemn the property.

• Can the Government Take Possession of the Landowner’s Property Before Final Compensation is Paid?

  Mississippi law allows certain state and local governmental agencies to take possession of property before a final determination of compensation is made under what is commonly called a “quick take” procedure. Under this procedure, the trial judge appoints a qualified real estate appraiser to serve as the quick-take appraiser who will prepare and appraisal providing his or her opinion as to the amount of just compensation due in the case. The condemning agency can then post with the clerk of the court an amount not less than 85% of the quick-take appraisal and take immediate title and possession of the property. The property owner is entitled to draw these funds out of court while maintaining the right to proceed to trial to have a jury determine the actual just compensation due. If the quick-take deposit is less than the amount ultimately determined to be just compensation, the condemning agency must pay the balance plus interest at 8% per annum on the difference from the date the case was filed until the funds are actually paid.
  
  Quick-take powers are primarily available for state and local road construction projects and a few other government purposes. Utility and pipeline companies generally do not have quick- take power.