Here’s the Reply Brief we’re filing today in Bay Point Properties, Inc. v. Mississippi Transportation Commission, No. 16-1077 (cert. petition filed Mar. 3, 2017), a case which seeks review of a decision by the Mississippi Supreme Court. We represent the petitioner.
The brief responds to the MTC’s Brief in Opposition, and rather than paraphrase our arguments, we’re just going to copy-and-paste them below, after we link to the other briefs in the case:
- Bay Point’s cert petition
- Amicus brief of Pacific Legal Foundation
- Amici Brief of Virginia Institute for Public Policy and Owners’ Counsel of America
- Amici Brief of Cato Institute, the NFIB Small Business Legal Center, Reason Foundation, Southwest Legal Foundation, NARPO (the National Association of Reversionary Property Owners), the Property Rights Foundation of America, and Professor James Ely (property and easement expert), Shelley Ross Saxer (land use and takings), and Ilya Somin (eminent domain, among other subjects).
- Brief in Opposition (MTC and Mississippi DOT)
Here’s the Introduction from our Reply Brief:
The court below invited legislatures to convert highway easements into parks, road easements into subways, and utility easements into stadiums, without justly compensating property owners. In Respondents’ view, the jury had to pretend Petitioner’s land was encumbered by the very highway easement the jury had already determined was not being used for a highway purpose; justly compensating Petitioner would represent “a windfall.” BIO 10. Their argumentative excess demonstrates exactly what went wrong below: the court required the jury to ignore reality, and allowed a statute to override the Just Compensation imperative. This Court should not do the same.
Statutory abandonment cannot govern just compensation guaranteed by the Fifth Amendment. The remedy sought here is revealing: Petitioner didn’t seek ejectment—merely compensation for the taking. This distinction is critical. Mississippi’s statute may allow Respondents to remain on the land because they have not formally abandoned their limited-use highway easement, despite converting it to an admittedly different, non-highway use and discontinuing the Toll Project No. 1 bridge. The Just Compensation Clause—not Mississippi’s abandonment statute— controls, however, and requires full compensation once Respondents did so.
Respondents concede they were only authorized to use Petitioner’s property according to Toll Project No. 1’s “plans and specifications.” App. 3. They also acknowledge “a portion of the highway easement used for the bridge landing was converted into a park and parking lot.” BIO 1. They concede the jury found these new uses were not highway purposes, and that the jury concluded Respondents took Petitioner’s property. BIO 3. Yet, they argue, “the continued use of the easement by Respondents for a public purpose does not equate to abandonment,” meaning that compensation was measured as if the land continued to be subject to a highway use, even though it was not. BIO 2. This circumvents the issue, because just compensation isn’t limited by abandonment under section 65-1-123, but is measured by what was actually taken—Petitioner’s right to use its property, unencumbered by anything but Toll Project No. 1.
Respondents have no answer, except to assert Petitioner did not raise and the courts below did not pass upon, this claim. Their objection fails to withstand even modest scrutiny. Petitioner raised the claim on the first page of its brief below, and the court considered it. See App. 15. Respondents alternatively assert the constitutional claim is inconsequential. They offer no reason for the Court to deny review of the important question of whether a state’s ability to supersede its common law of property also allows it to limit the amount of compensation it must pay for resulting takings. In suggesting the decision below poses no issue worthy of review, Respondents disregard the contrary view of property scholars, national public interest and property rights organizations, and property owners who have been subject to similar tactics, all of whom filed amicus briefs.[1] As amici underscore, this case presents an important opportunity to reaffirm the principles of Monongahela Navigation Co. v. United States, 148 U.S. 312 (1892), and clarify that Mississippi may redefine its property law, but may not avoid its duty under the Just Compensation Clause to provide the full extent of what Petitioner lost when Respondents openly and notoriously put an easement which had been granted only for Toll Project No. 1 to different uses. Converting an easement for a limited highway purpose into a general servitude for an indefinite period, as Respondents unabashedly trumpet, certainly qualifies as a fully compensable taking.
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[1] Twelve amici have filed three briefs in support of the petition, including a brief joined by Professor James W. Ely, Jr., co-author of the leading easement treatise, cited by the dissent.
The case is on the Court’s June 1, 2017 conference schedule, so we should know more the following week.