As we reported earlier ("Mississippi: Statute That Says No Private Takings For Access Within City Limits Means Just That"), as in many other states, in Mississippi, a private property owner may institute eminent domain proceedings to take a neighbor's land when doing so is necessary for a landlocked parcel to gain ingress and egress. In that case, the Mississippi Supreme Court held that the requirements of the statute must be adhered to by a private condemnor, and invalidated the taking.
But the court rejected the owner's request for attorneys' fees as part of the appeal because the statute provides that these costs are recoverable "in a separate action."
After the court issued its opinion, the property owner sought attorneys' fees under a separate statute in the eminent domain code, but the special court concluded the statute didn't apply because the Supreme Court "has made it abundantly clear that the [owners] were not entitled to seek relief ..."
In High v. Kuhn, No. 2017-CA-00092 (Dec. 14, 2017), the court disagreed. Private condemnations are eminent domain actions, and the eminent domain fee-shifting statute applies in those cases. "[T]he Legislature’s intent was that an action for a private condemnation, to the extent possible, would be just like an action for a public condemnation. So, just like an action for a public condemnation, when a plaintiff fails to obtain a judgment for a private condemnation, the defendant may recover her reasonable expenses—including attorney’s fees—incurred in defending the action." Slip op. at 5.
The court rejected the argument that even though it held in the earlier appeal that the eminent domain statute didn't apply to the case because the plaintiffs sought to exercise their power to take within city limits (where the statute doesn't apply), it was enough that they invoked the eminent domain statute. That action triggered the defendants' right to recover costs once the action failed.