Bill Text: MS SB2696 | 2010 | Regular Session | Introduced


Bill Title: Eminent domain; restrict to direct public use.

Spectrum: Bipartisan Bill

Status: (Failed) 2010-02-02 - Died In Committee [SB2696 Detail]

Download: Mississippi-2010-SB2696-Introduced.html

MISSISSIPPI LEGISLATURE

2010 Regular Session

To: Economic Development

By: Senator(s) Albritton, Baria, Tollison, Blount, Burton

Senate Bill 2696

AN ACT TO AMEND SECTION 11-27-1, MISSISSIPPI CODE OF 1972, TO PROHIBIT USE OF THE POWER OF EMINENT DOMAIN EXCEPT FOR A PUBLIC USE, PROVIDED DUE COMPENSATION IS MADE; TO CLARIFY THE RIGHT OF EMINENT DOMAIN SHALL NOT BE EXERCISED FOR THE PURPOSE OF TAKING OR DAMAGING PRIVATELY OWNED REAL PROPERTY FOR PRIVATE DEVELOPMENT, FOR A PRIVATE PURPOSE, FOR ENHANCEMENT OF TAX REVENUE, OR FOR TRANSFER TO A PERSON, NONGOVERNMENTAL ENTITY, PUBLIC-PRIVATE PARTNERSHIP, CORPORATION OR OTHER BUSINESS ENTITY UNLESS THE USE IS AUTHORIZED UNDER THE MISSISSIPPI MAJOR ECONOMIC IMPACT ACT, APPROVED BY LOCAL GOVERNMENT, CERTIFIED BY THE MISSISSIPPI DEVELOPMENT AUTHORITY, PASSED BY THE LEGISLATURE, AND SIGNED BY THE GOVERNOR; TO AMEND SECTIONS 11-27-25 AND 11-27-27, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THERE IS NO ADDITIONAL TAKING WHEN NEW USES HAVE NO SUBSTANTIAL IMPACT UPON THE SERVIENT ESTATE; TO CREATE SECTION 11-27-28, MISSISSIPPI CODE OF 1972, TO FURTHER CLARIFY THAT THERE IS NO ADDITIONAL TAKING WHEN NEW USES HAVE NO SUBSTANTIAL IMPACT UPON THE SERVIENT ESTATE; TO AMEND SECTION 11-27-37, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT ATTORNEY'S FEES MAY BE RECOVERABLE BY THE DEFENDANT; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 11-27-1, Mississippi Code of 1972, is amended as follows:

     11-27-1.  (1)  Any person or corporation having the right to condemn private property for public use shall exercise that right as provided in this chapter, except as elsewhere specifically provided under the laws of the State of Mississippi.

     (2)  (a)  The right of eminent domain shall only be exercised for a public use, provided due compensation, including relocation expenses when relocation is necessary, is first made in the manner prescribed by law to the owner or owners of the property condemned.

          (b)  The right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development, for a private purpose, for enhancement of tax revenue, or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity, unless the taking of private property is authorized for a project under the Mississippi Major Economic Impact Act as set forth in Title 57, Chapter 75, Mississippi Code of 1972, and if:

              (i)  The project is approved by the board of supervisors of any county or counties in which the project is located and, if the project is located within a municipality, by the governing authority of the municipality;

              (ii)  The Mississippi Development Authority certifies to the Legislature and the Governor that the project satisfies the requirements of the Mississippi Major Economic Impact Act; and

              (iii)  The Legislature passes a bill approving the project as a Mississippi Major Economic Impact Act project, and the Governor approves that bill.

          (c)  Any taking under subsection (2)(b) associated with a Mississippi Major Economic Impact Act project shall be subject to judicial review under Article 3, Section 17, Mississippi Constitution of 1890.

          (d)  The provisions of subsection (2)(b) shall not apply to the exercise of eminent domain in connection with projects and tier one suppliers as defined in Section 57-75-5 as it existed on June 30, 2010.

          (e)  The provisions of subsection (2)(b) shall not apply to drainage and levee facilities and usage, roads and bridges for public conveyance, flood control projects with a levee component, seawalls, dams, toll roads, public airports, public ports, public harbors, public wayports, public hospitals and health centers, housing authorities, public schools, common carriers or facilities for public utilities and other entities used in the generation, transmission, storage or distribution of telephone, telecommunication, gas, carbon dioxide, electricity, water, sewer, natural gas, liquid hydrocarbons or other utility products.

     SECTION 2.  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 jury composed of (here insert their names) on the ______ day of _______, A.D., ____, and the jury 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 plus other costs and expenses as allowed by law, ownership of the said property shall be vested in plaintiff and it may be appropriated to the public use as allowed by law.  Let the plaintiff pay the costs and expenses, for which execution may issue."

     SECTION 3.  Section 11-27-27, Mississippi Code of 1972, is amended as follows:

     11-27-27.  Upon return of the verdict and entry of the judgment, the plaintiff 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 jury service as is otherwise provided by law for the court in which the case is tried; and shall pay the expenses, if authorized by law.  Then, ownership of the property described in the complaint shall be vested in the plaintiff and it shall be appropriated to the public use * * * as allowed by law.  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 plaintiff.

     SECTION 4.  The following shall be codified as Section 11-27-28, Mississippi Code of 1972:

     11-27-28.  Grants, transfers or other conveyances of easements, servitudes, rights-of-way, licenses or other rights of use of real property, including takings by way of condemnation or eminent domain proceedings, whether existing and of record as of July 1, 2010, or whether made, created or taken after July 1, 2010, are declared to be and shall be treated as (a) apportionable, (b) easements in gross, as such rights of use are not appurtenances to any estate in land, and (c) granting to the purchaser, grantee, transferee or condemnor, and any successors, assigns or licensees of all or any part of such rights of use, full authority to put such real property to any use that does not impose a substantial additional burden in fact upon the landowner's servient estate, including, but not limited to, any use that may be considered a technological advance and any use that is not incompatible with the original use.  No such new use is an additional taking or an additional servitude so long as it does not impose a substantial additional burden in fact upon the landowner's servient estate. 

     SECTION 5.  Section 11-27-37, Mississippi Code of 1972, is amended as follows:

     11-27-37.  (1)  In case the plaintiff shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or in case the suit shall be dismissed by the plaintiff except pursuant to settlement, or the judgment be that the plaintiff is not entitled to a judgment condemning property, the defendant may recover of the plaintiff in an action brought therefor all reasonable expenses, including attorney's fees, incurred by him in defending the suit.

     (2)  In cases where the judgment be that the defendant is entitled to damages greater than the highest amount of compensation offered to the defendant in pretrial negotiations, the defendant may recover of the plaintiff in an action brought therefor all reasonable expenses, including attorney's fees, incurred by him in defending the suit in addition to costs awarded under Section 11-27-25.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2010, and Section 5 of this act shall apply to all pending actions in which judgment has not been entered before July 1, 2010, and to all actions filed on or after July 1, 2010.  All other provisions shall apply to all actions filed on or after July 1, 2010.


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