Mississippi: Statute That Says No Private Takings For Access Within City Limits Means Just That
Mississippi, like many states, by statute allows private parties to condemn a neighbor's land for use as a private access road, if doing so is "necessary" for a landlocked parcel to gain ingress and egress. This power is subject to limitations: for example, the parcel must be truly landlocked with no other access. Mississippi apparently has an additional requirement, that the power cannot be exercised within the limits of an incorporated city or town.
The property at issue in High v. Kuhn, No. 2015-IA-00072-SCT (Miss. Mar. 17, 2016) is within the incorporated City of Gulfport, so the owner objected when his neighbor tried to exercise the power to take his land for access to an otherwise landlocked parcel. The trial court, however, held that the owner had waived the right to assert this objection by not objecting within five days as required by another statute. Besides, the court held, the incorporated cities exception violated equal protection "beyond a reasonable doubt." Thus, it rejected the defense.
The Mississippi Supreme Court didn't. The power to take land for private benefit is a purely statutory right, which has been limited by the Mississippi legislature to exercise only outside of incorporated towns and cites. And that statute that provides for a five day time window to object? That statue applies to takings by public condemnors, not private takers, like here.
Finally, the court rejected the Equal Protection argument, concluding that "there is a rational purpose in granting the Legislature discretionary authority to establish a statutory right to condemn rights of way for private roads but restricting the Legislature from providing for such private rights of way in incorporated cities and towns." Slip op. at 12.
Section 110 addresses access issues that may arise in unincorporated areas, where there are few public roads, by providing a way for the property owner to pay for and maintain his or her own private road. Incorporated cities and towns like Gulfport, by contrast, have numerous public roads. Not only that, these incorporated towns and cities also have ordinances that require properties to abut these public roads. And by restricting the statutory right to a private road to nonincorporated areas, Section 110 avoids interfering with a city’s or town’s prerogative to mandate the minimum-access requirements necessary to provide for the health, safety, and welfare of its citizens. >
Slip op. at 12.
Also, the landlocked parcel guy has a remedy: a common law claim for an easement by necessity. Or get the City of Gulfport to help.
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