                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-IA-00072-SCT

CHERYL L. HIGH

v.

TODD KUHN AND ANGELA T. KUHN


DATE OF JUDGMENT:                         01/08/2015
TRIAL JUDGE:                              HON. MICHAEL H. WARD
TRIAL COURT ATTORNEYS:                    VIRGIL GILLESPIE
                                          ROBERT T. SCHWARTZ
COURT FROM WHICH APPEALED:                HARRISON COUNTY SPECIAL COURT OF
                                          EMINENT DOMAIN
ATTORNEY FOR APPELLANT:                   STEVEN NICHOLAS NEWTON
ATTORNEY FOR APPELLEES:                   VIRGIL G. GILLESPIE
NATURE OF THE CASE:                       CIVIL - EMINENT DOMAIN
DISPOSITION:                              REVERSED AND RENDERED - 03/17/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE DICKINSON, P.J., LAMAR AND MAXWELL, JJ.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    The special court of eminent domain granted Todd and Angela Kuhn’s petition for a

private road across Cheryl High’s property in Gulfport. To obtain the private road, the

Kuhns utilized Mississippi Code Section 65-7-201 (Rev. 2012). This section creates a

statutory right for private citizens to petition the special court of eminent domain when a

private road over the land of another is necessary for ingress and egress. But Section 65-7-
201 “was enacted pursuant to Sec. 110 of the State Constitution.”1 And while Section 110

empowers the Legislature to create the statutory right to “private roads, where necessary for

ingress and egress” upon “due compensation” to the property owners, this section is equally

clear “such rights of way shall not be provided for in incorporated cities and towns.”2 Thus,

the legislatively created right to condemn private property for a private road—according to

Mississippi’s constitution—does not extend to land within incorporated cities and towns.

¶2.    Because the private property the Kuhns sought to condemn for a private road was in

the incorporated City of Gulfport, the special court of eminent domain could not condemn

High’s property for the Kuhns’ private benefit. So we reverse the special court of eminent

domain’s order granting the Kuhns a private road under Section 65-7-201. We render a

judgment in High’s favor, dismissing the Kuhns’ sole claim.

                          Relevant Facts and Procedural History

       I.       The Kuhns’ Parcel

¶3.    Because her property was landlocked, High purchased a thirty-five-foot-wide strip of

land between her property and Swan Road in Gulfport. Immediately west of this strip lay the

Plitts’ property. In 2007, the Plitts subdivided their property into two parcels. The southern

parcel became landlocked. So the Plitts bought a ten-percent interest in High’s thirty-five-

foot strip to gain access to Swan Road.

       1
         Quinn v. Holly, 244 Miss. 808, 811, 146 So. 2d 357, 358 (1962) (citing Miss. Const.
art. 4, §110).
       2
           Miss. Const. art. 4, § 110 (emphasis added).

                                               2
¶4.    But this ten-percent interest did not cover the entire strip. Instead, the Plitts owned

only an interest in the strip from Swan Road down to fifteen feet past the border of the south

parcel. In other words, the Plitts’ interest provided only a fifteen-foot access point to the

strip and, consequently, a public road. Despite this limitation, the Plitts located their

driveway south of their access point. And with High’s permission, the Plitts would cross

High’s exclusive property when turning in and out of their driveway.

¶5.    Because of this, when the Plitts sold Angela Kuhn their house, along with the ten-

percent interest in High’s strip, the Plitts and Kuhns also entered a side agreement. The Plitts

agreed to pay the Kuhns $3,750 in exchange for the Kuhns’ accepting the property “as is.”

In this written agreement, the Kuhns expressly acknowledged “the land which is not part of

the [Plitts’ ten-percent interest] . . . is owned by Cheryl L. High and she has not restricted the

use of said land, but all parties hereto acknowledge that she, or a subsequent owner, has the

right to restrict said use[.]” Therefore, “if current use of the land which is not part of the

roadway agreement is restricted in the future, then the Kuhns, or subsequent owners, will be

required to relocate the driveway so that access is limited to the use of land subject to the

roadway agreement, i.e., using the North fifteen feet (15') of subject property.” For this

reason, “the Plitts have offered and the Kuhns have accepted the sum of $3,750 to relocate

the driveway at such time as it becomes necessary.”

¶6.    After purchase, the Kuhns immediately began making improvements to their property,

including building a large, three-car garage. Significantly, the garage was built in the path


                                                3
where the driveway would have to be relocated to reach the fifteen-foot access point, should

High restrict access to the current driveway.

¶7.    Just three months after the Kuhns’ purchase, High did restrict access to their driveway.

In December 2012, High built a fence between the Kuhns’ property and the portion of the

thirty-five-foot strip exclusively belonging to her. Because of this fence, the Kuhns could

no longer enter and exit their property using the existing driveway but were instead restricted

to the fifteen-foot gap at the northeastern corner of their property, behind their newly built

garage. Further, High rejected the Kuhns’ offer of $1,500 in exchange for an ingress and

egress easement covering High’s entire thirty-five-foot strip.

       II.    The Kuhns’ Petition

¶8.    On March 22, 2013, the Kuhns filed a petition under Section 65-7-201. They sought

to establish a special court of eminent domain so they could acquire a private easement over

High’s property.

¶9.    High responded by filing a motion to dismiss, which was heard three weeks before the

condemnation hearing. High argued the Kuhns did not meet Section 65-7-201’s requirement

that the private road was “necessary for ingress and egress.” As they put it, the Kuhns have

access to their property—just not as much access as they would prefer. The special court

deferred ruling, determining the best course was to hear the Kuhns’ evidence first.

¶10.   The Kuhns proceeded with their case on April 29, 2013. Both Angela and Todd Kuhn

testified about the access issues they experienced after High built the fence. After the Kuhns


                                                4
rested, High again moved to dismiss. This time she raised the “constitutional issue that [the

Kuhns] cannot overcome.” High drew the court’s attention to Article 4, Section 110 of the

Mississippi Constitution. This section expressly prohibits the Legislature from creating the

statutory right to condemn a private road “in incorporated cities and towns.” Because the

undisputed evidence showed High’s property was within the incorporated City of Gulfport,

High argued the Kuhns could not rely on Section 65-7-201 condemn her property for a

private road. The Kuhns responded that High had waited “too late” to bring up Section 110.

Because she had not cited Section 110 in her prehearing motion to dismiss, she waived this

issue.3

¶11.      The court took High’s motion to dismiss under advisement. When the hearing next

resumed, the court denied the motion without explanation. After the hearing, but before the

special court of eminent domain entered its final order, High’s counsel withdrew, and new

counsel appeared. High’s new attorney filed another motion to dismiss based on Section

110’s clear prohibition.


          3
          According to the Kuhns, High also failed to notify the Attorney General. They
characterized her Section 110 argument as a “constitutional” challenge, triggering Rule
24(d)’s notice requirement. M.R.C.P. 24(d). Under Rule 24(d), “In any action . . . for
declaratory relief brought pursuant to Rule 57 in which a declaration or adjudication of the
unconstitutionality of any statute of the State of Mississippi is among the relief requested,
the party asserting the unconstitutionality of the statute shall notify the Attorney General of
the State of Mississippi within such time as to afford him an opportunity to intervene and
argue the question of constitutionality.” M.R.C.P. 24(d). But High maintained she was not
attacking the constitutionality of the Section 65-7-201. Rather, she was challenging the
Kuhns’ ability to obtain an easement under Section 65-7-201 based on Section 110’s clear
restriction against a legislatively created right to a private road in an incorporated city.

                                              5
¶12.   On January 8, 2015, the court entered its final order. This order did not specifically

deny High’s outstanding motion to dismiss. But the court did address Section 110 and its

prohibition from establishing the statutory right to condemn a right of way for private roads

in incorporated cities and towns. The court acknowledged “[n]o question exists but that the

property in question is located wholly within the city limits of the City of Gulfport.” But it

found “[High] waived her right to assert dismissal pursuant to [Mississippi Constitution

article 4,] Section 110 by failing to claim same five days prior to the hearing, pursuant to the

provisions of Section 11-27-15[.]” See Miss. Code Ann. § 11-27-15 (Rev. 2004). So as the

court saw it, “the constitutionality of Section 110” need not be determined. Still, the court

believed it “appears beyond a reasonable doubt that Section 110 is violative of the Equal

Protection Clause of the Fourteenth Amendment to the Constitution of the United States[.]”

¶13.   Even so, the court found the Kuhns’ petition was “reasonable” and “it is necessary that

they obtain access to their property along the entire length of the same.” So the court granted

the Kuhns’ petition for a right of way along the entire eastern border of their property. And

it ordered a jury trial be set to determine the amount High should be compensated.

¶14.   The damages trial was stayed on March 18, 2014, when this Court granted High’s

motion for interlocutory appeal.4 While High raises four issues on appeal, we focus on two:



       4
        As part of the order granting interlocutory appeal, this Court directed that “[t]he
Attorney General shall be given notice of pleadings and an opportunity to respond.” The
Attorney General’s office has been noticed on all the filings in this appeal but has not made
an appearance or otherwise weighed in on this appeal.

                                               6
(1) whether the order condemning private property within an incorporated city is

unconstitutional, under Article 4, Section 110 of the Mississippi Constitution, and (2)

whether the special court of eminent domain erred as a matter of law when it relied on

Section 11-27-15 to find waiver. We agree the Kuhns’ petition conflicts with Section 110 of

the constitution. So it was error to grant them the relief they sought. Further, this error was

not waived by operation of Section 11-27-15. Because we find High is entitled to reversal

for these reasons, we need not address High’s alternative arguments.5

                                         Discussion

       I.     No Remedy Under Section 65-7-201

¶15.   To obtain an easement across High’s property, the Kuhns petitioned a statutorily

created court—the special court of eminent domain—for a statutorily created right. See

Miss. Code Ann. § 11-27-3 (Rev. 2004) (establishing the special court of eminent domain);

Miss. Code Ann. § 65-7-201 (establishing the right to a private road across another’s

property). The Kuhns based their petition on Section 65-6-201. This statute directs “any

person [who] shall desire to have a private road laid out through the land of another, when

necessary for ingress and egress, [to] apply by petition, stating the facts and reasons, to the

special court of eminent domain created under Section 11-27-3 of the county where the land


       5
         High’s alternative reasons for reversal were: (1) the special court of eminent domain
lacked “subject matter jurisdiction” to condemn a private roadway within the incorporated
limits of Gulfport, based on the clear limitation set forth in article 4, Section 110 of the
Mississippi Constitution; and (2) the Kuhns failed to prove they were entitled to a private
right of way under Section 65-7-201.

                                              7
or part of it is located[.]” Miss. Code Ann. § 65-7-201.

¶16.   But this statute is subject to the limitations of the Mississippi Constitution. And

Section 110 of the constitution clearly prohibits the Legislature from creating the statutory

right to condemn for a private road property within an incorporated city or town. Miss.

Const. art. 4, § 110. Under Section 110, “The Legislature may provide, by general law, for

condemning rights of way for private roads, where necessary for ingress and egress by the

party applying, on due compensation being first made to the owner of the property; but such

rights of way shall not be provided for in incorporated cities and towns.” (Emphasis added.)

¶17.   As originally enacted, the statute now codified as Section 65-7-201 directed anyone

seeking a private road across the land of another to apply by petition to the board of

supervisors of the county in which the land was located. Miss. Code of 1880, § 832; see also

Miss. Code of 1892, § 3901; Miss. Code of 1906, § 4411; Miss. Code of 1917, § 7091; Miss.

Code of 1930, § 6468; Miss. Code of 1942, § 8419; Miss. Code Ann. § 65-7-201 (1972).

By directing petitioners to the county board of supervisors, the Legislature restricted

applications to private roadways in land in the county (versus municipality) and thus avoided

any constitutional conflict. Indeed, in passing on the validity of this version of the statute,

this court upheld it, finding“that since the statute was enacted pursuant to Sec. 110 of the

State Constitution, and in strict accordance therewith, the same is constitutional.” Quinn,

244 Miss. at 811, 146 So. 2d at 358 (emphasis added) (citing Miss. Code of 1942, § 8419).

See Prichard, Op. Att’y Gen. 1999-0261, 1999 WL 535498 (May 28, 1999) (opining Section


                                              8
65-7-201 confers no jurisdiction upon the county board of supervisors to grant petitions for

private roads over lands within incorporated cities).

¶18.   Section 65-7-201 was amended in 2003. Instead of petitioning the county board of

supervisors, those seeking private roads across another’s property were redirected to file their

petition with the special court of eminent domain and follow, “as nearly as possible,” the

statutory procedures “for the condemnation of private property for public use.” Miss. Code

Ann. § 65-7-201 (citing Title 11, Chapter 27 of the Mississippi Code, which governs eminent

domain). But this change in procedure did not alter the underlying substantive right, which

is clearly limited by Section 110. So just as the Kuhns, prior to 2003, would have had no

right to petition the Harrison County Board of Supervisors under Section 65-7-201 for a

private road in an incorporated town or city, they had no right in 2013 to petition the special

court of eminent domain for a private road across High’s property in Gulfport.

¶19.   For this reason, the special court erred as a matter of law when it granted the Kuhns’

petition under Section 65-7-201.       Because the special court’s order grants what the

constitution clearly prohibits, it must be reversed.

       II.    No Waiver Under Section 11-27-15

¶20.   The special court found High “waived her right to assert dismissal pursuant to Section

110 by failing to claim same five days prior to the hearing, pursuant to the provisions of

Section 11-27-15.” But Section 11-27-15 does not impose a blanket waiver on all motions

to dismiss not brought five days before the condemnation hearing. Instead, it enumerates


                                               9
three specific grounds for dismissal that must be asserted at least five days before the

hearing, lest they be waived. And all these grounds deal specifically with challenges to

public takings.

¶21.   The three grounds for dismissal that must be asserted under Section 11-27-15 are:

“(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.” Miss. Code Ann.

§ 11-27-15 (emphasis added). Here, the Kuhns were not pursuing eminent domain—i.e., a

public taking under Section 11-27-1. Rather, they requested a private road under Section 65-

7-201. And Section 65-7-201 does not require showing public necessity or public use. So

none of the enumerated grounds for dismissal listed in Section 11-27-15 apply here.6 Thus,

the special court erred as a matter of law when it applied Section 11-27-15 to find waiver.

¶22.   Still, the Kuhns insist High waited too late to bring up Section 110, wasting the

Kuhns’ and the special court’s time by waiting until after they had presented all their

evidence to move for dismissal based on Section 110. But as the petitioners, the Kuhns bore



       6
         Amended Section 65-7-201 directs private condemnations to “proceed as nearly as
possible as provided in Title 11, Chapter 27[.]” Miss. Code Ann. § 65-7-201. And Section
11-27-15 is an example of a procedure created for public condemnations that does not
translate to private condemnations.

                                                 10
the burden to present facts showing they were entitled to the relief they sought. And after

they rested, High was permitted to “move for a dismissal on the ground that upon the facts

and the law [the Kuhns had] shown no right to relief.” M.R.C.P. 41(b); see also Highway

Comm’n of Miss. v. Havard, 508 So. 2d 1099, 1103 (Miss. 1987) (citing M.R.C.P. 81(a)(7))

(holding the Mississippi Rules of Civil Procedure govern the proceedings of the special court

of eminent domain, “except where there may be found a procedural statute to the contrary”).

High moved for dismissal citing the undisputed fact her property was within the City of

Gulfport and our constitution’s clear prohibition of a legislatively created right to a private

road in an incorporated city.      Based on these factual and legal barriers to private

condemnation, the Kuhns had failed to show they were entitled to relief under Section 65-7-

201. Because the Kuhns sought relief clearly not available to them under our constitution,

we find the special court abused its discretion when it denied High’s motion.

       III.   No Equal-Protection Violation

¶23.   Alternatively, the Kuhns argue the constitutional restriction in Section 110 is itself

“unconstitutional.” Piggybacking on the special court’s dicta in its final order, the Kuhns

assert Section 110 violates the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution by “deny[ing] city dwellers access rights, as opposed to county

dwellers who have such rights.” But to borrow language from one of the cases the Kuhns

cite, “equal protection of the law under the United States Constitution does not preclude all

disparities in treatment”—only disparities for which no rational purpose is served. Miss.


                                              11
Mun. Ass’n v. State, 390 So. 2d 986, 989 (Miss. 1980). And here, 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.

¶24.   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.

¶25.   But removing the right created by Section 65-7-201 from the table does not

necessarily leave the Kuhns without any recourse. The Kuhns have not pursued any

common-law remedies to gain access. Nor have they sought the City’s assistance to help

resolve the problem created by the subdivision of the Plitts’ parcel. And our holding today

does not prejudice the Kuhns’ ability to avail themselves of these, and potentially other,

remedies.

       IV.    No Action for Reasonable Expenses

¶26.   Finally, while not raised as a separate issue, High asks this court to award her “any


                                               12
and all expenses and costs for the defense of this action, including reasonable attorneys’ fees,

pursuant to Miss. Code Ann. § 11-27-37.” But that issue is not properly before us.

¶27.   Section 11-27-37 directs a claim for expenses to be brought in a separate action: “In

case . . . 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 attorneys’ fees, incurred by him in defending the suit.” Miss. Code Ann. § 11-27-

37 (Rev. 2004) (emphasis added); see also Cox v. Warren Cty., 600 So. 2d 935, 938 (Miss.

1992) (holding “[Section] 11-27-37 gives the defendant landowner a separate cause of action

against the petitioner condemnor, which may be brought via a post trial motion in the

eminent domain court, or in a separate action in any court of competent jurisdiction”). For

obvious reasons, High has yet to bring a separate cause of action or a post-trial motion for

expenses. Instead of addressing High’s claim for expenses for the first time on interlocutory

appeal, we deny her request without prejudice.

                                         Conclusion

¶28.   To solve their access problem, the Kuhns asserted a statutory right not available to

them under our constitution. For this reason, we find the special court of eminent domain

erred in granting their petition. We reverse the order granting the petition to establish a

private road across High’s property located in the City of Gulfport and render a judgment in

High’s favor.

¶29.   REVERSED AND RENDERED.


                                              13
    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN AND BEAM, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION.




                               14
