                          IN THE SUPREME COURT OF MISSISSIPPI

                                         NO. 2003-CA-02270-SCT

DENTON WEBB, RUBY WEBB, RACHAEL WEBB
AND DAN W. WEBB

v.

TOWN CREEK MASTER WATER MANAGEMENT
DISTRICT OF LEE, PONTOTOC, PRENTISS AND
UNION COUNTIES; AND JOHN MORGAN, JIMMY
BUCY, KENNETH OSWALT AND HOUSTON
PANNELL IN THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE BOARD OF COMMISSIONERS
OF TOWN CREEK MASTER WATER
MANAGEMENT DISTRICT OF LEE, PONTOTOC,
PRENTISS AND UNION COUNTIES


DATE OF JUDGMENT:                               09/13/2003
TRIAL JUDGE:                                    HON. WOODROW WILSON BRAND, JR.
COURT FROM WHICH APPEALED:                      LEE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                        PAUL NATHAN JENKINS, JR.
ATTORNEYS FOR APPELLEES:                        THOMAS HENRY FREELAND, III
                                                DAVID R. SPARKS
NATURE OF THE CASE:                             CIVIL - EMINENT DOMAIN
DISPOSITION:                                    REVERSED AND REMANDED - 04/07/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.

        RANDOLPH, JUSTICE, FOR THE COURT:

¶1.     This appeal arises from two consolidated cases in the Chancery Court of Lee County,

an easement condemnation action by a water district and the landowners’ action against the

district for damages and other relief.
                              Cause No. 46077 filed on August 17, 1993

¶2.     This controversy originated in the Chancery Court of Lee County, wherein Town Creek

Master Water Management District (Town Creek) filed a petition for approval of appraisement

of damages of easement, naming as respondents Dan Webb and his wife Rachael Webb. This

petition sought to acquire a permanent easement on which to construct a water retarding

structure (Dam No. 48). Dan and Rachael owned a remainder interest in the property, with

Denton Webb and Ruby Webb owning a life estate in the property on which the proposed dam

was to be located. Denton and Ruby were not made parties to the petition.

¶3.     On the same day that Town Creek filed its petition, August 17, 1993, the chancery court

entered an interlocutory decree allowing the taking of the property and directing that a hearing

for the approval of the appraisal be set down on a date to be set by       the Chancellor. The Webbs

were neither served with the petition nor the interlocutory decree. Now it is eleven and a half

years later, and there has been no hearing for the approval of the appraisal.

¶4.     On August 27, 1993, Dan and Rachael moved to set aside the interlocutory decree

contesting personal jurisdiction because no summons was issued for either of them (nor have

they ever been served) and asserting that Town Creek lacked authority for a quick take and that

they were deprived of their procedural due process rights guaranteed by the Fifth and

Fourteenth Amendments to the U.S. Constitution.          There was never a hearing on this motion.




                           Cause No. 95-1100 filed on September 22, 1995




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¶5.    On September 22, 1995, after construction of the dam had begun, Dan and Rachael (the

named respondents in Town Creek’s petition), and Denton and Ruby Webb, filed a complaint

in the Chancery Court of Lee County against Town Creek seeking damages for the destruction

of their property. The complaint was amended on October 17, 1995, and on August 20 and 23,

1996. In the amended complaints the Webbs repeated their prior allegations, and in addition,

the Webbs sued the commissioners of Town Creek in their official capacities and alleged that

the dam had been completed.          The Webbs sued for actual, consequential, punitive damages,

attorney’s fees, and for cancellation of the easement and destruction of the dam.        Town Creek

answered the original and amended complaints admitting the taking and stating that the only

relief to which the Webbs were entitled was just compensation for the property taken.

¶6.    Ultimately, the matter was set for trial on September 14, 1998, but Town Creek moved

for a continuance after having filed a notification of a relevant pending case on August 6, 1998.

Further proceedings were delayed because Branaman v. Long Beach Water Management

District, 730 So. 2d 1146 (Miss. 1999), was pending in this Court.

                    Consolidation of Cause No. 46077 and Cause No. 95-1100

¶7.    On October 13, 2000 (almost seven years after the original petition), Town Creek

moved to add additional defendants (the Estate of Denton Webb and his widow Ruby Webb)

in Cause No. 46077, and moved for the consolidation of the two causes.                  The chancellor

granted the motion to consolidate.




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¶8.     Cross-motions for summary judgment were filed and the court granted Town Creek’s

motion for summary judgment dismissing the Webbs’ claims on September 29, 2003, and

certified that judgment as final under M.R.C.P. 54(b). This appeal followed.1

                                                FACTS

¶9.     The Webbs own three tracts of land, A, B, and C in Saltillo, Lee County, Mississippi:

        Tract A is owned by Dan and Rachael Webb as joint tenants with rights
        of survivorship.    It contains approximately 28.92 acres and is the
        residence of Dan and Rachael.

        Tract B consists of 42.84 acres and lies east of Tract A. When cause
        No. 46077 was filed, Tract B was owned by Dan and Rachael Webb
        subject to a life estate in Denton and Ruby Webb, whose residence was
        on Tract B. Denton is now deceased.

        Tract C consists of 40 acres and lies east of Tract B. This tract was also
        owned by Dan and Rachael, with Denton and Ruby holding a life estate in
        the property.

¶10.    On October 1, 1992, Town Creek, in conjunction with the Soil Conservation Service,

“SCS,” appraised a tract of land located in Saltillo, Lee County, Mississippi, in preparation of

obtaining a permanent easement for the construction of Dam No. 48. This appraisal shows the

description of Tract A. The appraisal gave the land a before “take” value of $5,173.00 and an

after “take” value of $2,618.00, with the difference being $2,555.

¶11.    On August 17, 1993, Town Creek filed its petition for approval of the October 1, 1992,

appraisal, naming only Dan and Rachael as defendants. The petition described Tract B and did

not correlate with the property described in Town Creek’s appraisal, which described Tract A.




        1
         Appellees’ Motion for the Postponement of Oral Argument, currently pending
before this Court, is dismissed as moot.

                                                   4
To date there has not been a hearing on the petition to approve the appraisal. Also, on August

17, 1993, Town Creek obtained an interlocutory decree allowing the taking of the property.

¶12.   After the petition and decree were granted, but before construction on the dam began,

Denton and Ruby planted pine trees on the property that was subject to the easement.          The

Webbs’ complaint against Town Creek was filed on September 22, 1995.

                                              ANALYSIS

¶13.   “This Court does not disturb the factual findings of a chancellor unless such findings

are manifestly wrong or clearly erroneous.” Bank of Miss. v. Hollingsworth, 609 So.2d 422,

424 (Miss. 1992).       However, for questions of law, the standard of review is de novo.

Consolidated Pipe & Supply Co. v. Colter, 735 So. 2d 958, 961 (Miss. 1999). Moreover, this

Court employs a de novo standard in reviewing a trial court’s grant of summary judgment.

O’Neal Steel, Inc. v. Millette, 797 So. 2d 869, 872 (Miss. 2001).

       I.      Notice requirement of Miss. Code Ann. § 51-29-39

¶14.   The trial court held that Miss. Code Ann. § 51-29-39 does not require notice of a taking

of land, when there are no issues regarding public use.       Furthermore the trial court held that

constitutional due process requirements would be met by allowing time within which to

prepare for a hearing on just compensation.




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¶15.   Miss. Code Ann. § 51-29-392 (Rev. 1990) sets out the procedures to be followed by

a water management district taking easements for completion of its plans and specifications:

       In lieu of the method provided in sections 51-29-29 to 51-29-35 for acquiring
       land and making compensation for damages, the drainage commissioners may
       adopt the following method for acquiring lands and making compensation for
       damages, to wit:

       The commissioners may, at any time after the organization of the district,
       appraise the value of any land taken or to be taken for the purposes of the
       proposed improvement, according to the plans of the district on file . . . When
       the commissioners shall have made their appraisement of lands taken, they shall
       certify to the same and file it with the clerk of the chancery court of the county
       in which the land lies. The court, or chancellor in vacation, shall enter an
       order designating the date, time, and place for the hearing of objections
       to such appraisement, either at a regular term of the court or in vacation;
       and the clerk shall issue a summons directed to the sheriff of the county
       or counties of the state in which any landowner or other person interested
       may reside, commanding him to summon such owner or owners or
       interested persons to be and appear at the time and place named. . .

       If any owner is not satisfied with the amount allowed by the commissioners for
       lands taken by reason of the construction of such proposed system according to
       the plans of said district, he shall file with the clerk of the court written
       objections thereto, in specific terms, prior to the time designated for said
       hearing.

       If on the hearing by the court or chancellor in vacation no written objections are
       filed, a decree confirming the appraisement shall be rendered, and upon payment
       of said amount to the chancery clerk, the commissioners of the district may
       enter upon and take possession of the said property and appropriate it to the
       public use of said district; and the title of said property shall thereupon vest in
       said district. The clerk shall receipt upon the decree for the money paid, and said
       decree with the receipt thereon shall be recorded.



       2
          Miss. Code Ann. § 51-29-39 has been amended since the taking occurred. Our
ruling in Branaman v. Long Beach Water Management District, 730 So. 2d 1146 (Miss.
1999), held that the last provision of the statute was unconstitutional in that the serving of
the summons two days before the return day violated due process. The statute was amended
to instead provide for 30 days notice before the return day before a default judgment can be
entered against the landowner.

                                                   6
        If written objections are filed prior to the time set for the hearing, the court or
        chancellor in vacation shall proceed to hear the objections filed, trying the cause
        or causes without the intervention of a jury.

        No judgment by default shall be entered against an owner or person interested
        residing in this state unless it appear that he has been duly served with summons
        at least two days prior to the return day, and no judgment by default shall be
        rendered against any nonresident or unknown person or persons interested
        unless proper publication has been made.

¶16.    The statute requires (1) a filing of a petition of appraisement; (2) the court or

chancellor shall enter an order designating the date, the time, and place for the hearing of

objections to such appraisement; (3) that the clerk shall issue a summons for each landowner

or other interested person commanding them to appear at the hearing; (4) after being served,

the owners may then file written objections to the appraisement; (5) or if no written objections

are filed, a decree confirming the appraisement shall be entered.    Only after these procedures

are followed does the statute allow for the commissioners to enter and take possession of the

property.

¶17.    This Court has held that statutes granting the power of eminent domain should be

interpreted as follows:

        The power of eminent domain is in derogation of common right. Therefore the
        statutes conferring the right of eminent domain are to be strictly construed.
        They are not to be extended beyond their plain provisions. The right to exercise
        this power is strictly limited to the purposes expressed in the statutes conferring
        the power. Where there is any doubt of the right to exercise the power, the
        landowner is entitled to the benefit of such a doubt.

Branaman v. Long Beach Water Mgmt. Dist., 730 So. 2d 1146, 1149 (Miss. 1999) (citing

Ferguson v. Bd. of Supervisors of Wilkinson County, 149 Miss. 623, 115 So. 779, 780

(1928)). Town Creek failed to follow the clear procedures outlined in Miss. Code Ann. § 51-



                                                7
29-39. Denton, Ruby, Dan, and Rachael all had an interest in the property, but not one of them

were served. Furthermore, the only two individuals who had a present possessory interest in

the property were not made parties to the petition.           The chancellor granted the easement

without entering an order setting a time and date for a hearing on objections, and no summons

had been issued, which was contrary to § 51-29-39.

¶18.   Certain entities have been given the right of immediate possession by the Legislature

in Miss. Code Ann. § 11-27-81.         However, §11-27-81 does not include water management

districts within its scope. In Branaman, this Court held that, “there must be specific authority

granted by the legislature to the District to allow a quick take of the easements needed.

Section § 51-29-39 does not provide this authority.                 We therefore caution district

commissioners against future attempts to utilize a quick take procedure under these

circumstances.” 730 So. 2d at 1152.          Miss. Code Ann. § 51-29-39 designates the only

procedure by which water management districts may take easements. According to § 51-29-39

notice is required regardless of whether or not there is an issue regarding public use. The trial

court erred in holding that no notice was required to the Webbs.

       II.     Due process

¶19.   In its order, the trial court stated that, “Branaman appears to state the concept that (the)

constitutional due process requirement may be provided by the court . . . by allowing time

within which to prepare for a hearing on just compensation.” Branaman concerned the Long

Beach Water Management District acquiring an           easement across Branaman’s property.    730

So. 2d at 1148. In Branaman, after the District filed its petition for approval of appraisement

against the Branamans and also served the Branamans with a Fiat, Summons, and Notice, the

                                                  8
Branamans then filed an objection to the appraisement.             After the objection was filed, the

chancery court granted the easement. Two months after the easement was granted, a hearing

was held to determine the issue of just compensation. On appeal, this Court determined that

the provision of § 51-29-39 which required only two days notice was unconstitutional.            This

Court however did not find a violation of the Branaman’s due process rights because the trial

court had granted the Branaman’s extra time to prepare for a trial on the issue of just

compensation. 730 So. 2d at 1151.

¶20.    The Webbs argue that Branaman is distinguishable from the case sub judice because

in Branaman, the landowners were served with summons, given notice of the hearing and

served with a copy of the petition; whereas the Webbs were never given notice, were not

served, and Denton and Ruby were not even named in the petition. Town Creek argues that

Branaman supports their argument that the Webbs’ due process rights were not violated

because there is no issue of public use involved and the Webbs will and have had ample time

to prepare for a trial on the issue of just compensation.

¶21.    While Town Creek is correct in its assertion that the Webbs will have ample time to

prepare for a hearing on just compensation, this does not negate the fact that the Webbs were

not served and the only two persons with a possessory interest in the property were not named

in the petition, much less summoned to appear. The Webbs are not disputing that they will have

ample time for a hearing on just compensation; the issue that the Webbs raise is whether or not

failure to give notice and failure to join interested parties, before the entering upon and taking

possession of the property, is a denial of due process and constitutionally prohibited.




                                                     9
¶22.    In Branaman, the parties were served with summons and notice and the Branamans even

filed an objection to the appraisement before the easement was granted. In the case sub judice

however, the Webbs were not given the opportunity to file any objections with the court before

an interlocutory decree was granted, considering they were never even notified that the petition

for approval of appraisement of damages had been filed with the court. “The power of eminent

domain must be exercised in satisfaction of due process, including adequate notice and the

opportunity to be heard.” Id. at 1149. The Webbs were given neither adequate notice nor an

opportunity to be heard before the interlocutory decree was granted which was in violation of

their constitutional due process rights and Mississippi’s statutory scheme.

¶23.    Town Creek argues that Lemon v. Mississippi Transportation Commission, 735 So.

2d 1013 (Miss. 1999), supports their notion that notice is only required when there is an issue

involving public use. This Court disagrees.      First, requiring notice only when there is an issue

of public use is contrary to Miss. Code. Ann. § 51-29-39, which requires notice regardless of

whether there is an issue of public use involved. Second, in Lemon this Court did not hold that

the issue of public use is a prerequisite for a notice requirement.            The issue     Lemon

determined was whether or not Miss. Code Ann. §§ 65-1-301 to -347 violated due process

rights. The Court in Lemon summarized the general provisions of the statute:

        ¶ 8. First, MTC "finds it necessary to condemn property." Miss. Code Ann. §
        65-1-303(1). Next, MTC files a complaint and declaration of taking in the
        circuit or county court of the county where the property is located identifying
        the owner(s), the property, the reason for the taking, and the fair market value
        as determined by the transportation commission as just compensation for the
        taking. Miss. Code Ann. § 65-1-303(1)-(3). Further, the complaint and the
        declaration are to be accompanied by a deposit of a sum in the amount of the fair
        market value of the property. Upon the filing of the complaint, declaration and
        deposit, summons is then issued and served on the landowner. Id. § 65-1-303(4).

                                                   10
       ¶ 9. Whereupon, "title to the land or such other interest therein specified in the
       complaint and the declaration of taking, together with the right to immediate
       possession thereof, shall vest in the Mississippi Transportation Commission,
       and the judge shall enter such orders in the cause as may be required to place the
       transportation commission in possession and title." Id. § 65-1-305(1) (emphasis
       added). The landowner is provided an opportunity to file an answer to the
       Complaint "praying only for a determination of just compensation." Id. §
       65-1-309 (emphasis added). Section 65-1-309 also contemplates that the
       answer contain "[s]uch affirmative defenses or matters as are pertinent to the
       action." Id. At this point, by statute title has already vested in the MTC. See id.
       §§ 65-1-305(1) & -309(1).
       ¶ 10. Section 65-1-313 provides:
       After the filing of the plat, the judge, upon motion and ten (10) days' notice by
       either the transportation department or the owner shall, either in or out of term,
       hear and determine all issues raised by the pleading other than the issue of just
       compensation, including, if controverted, questions of necessary and proper
       parties, title to the land, interest taken and area taken.

       This hearing would clearly be after title to the property has passed to the MTC.

735 So. 2d at 1016.     Unlike the case sub judice, where the owners were not provided with

notice, the property owners in Lemon were served with process before the court granted

immediate right and title to the property. Id. at 1015. However, the landowners in Lemon, as

in the case sub judice, were denied the opportunity to be heard before the easement was

granted. Lemon held that Miss. Code Ann. § 65-1-301 to § 65-1-347 were unconstitutional

as violative of procedural due process under our state constitution and that, “regardless of the

adequacy of the statute’s post-deprivation remedies, the statute must provide a pre-deprivation

hearing before taking property.” 735 So. 2d at 1020. This Court further stated in Lemon that,

“[o]ur state and federal constitutions prohibit laws which permit deprivation of property

without prior notice or hearing.” Id. (citing Donovan v. Mayor & Council of Vicksburg, 29

Miss. 247 (1855)). The Webbs received neither notice or a pre-deprivation hearing which was




                                              11
a clear     violation of both their procedural due process rights and pre-deprivation rights of a

hearing before taking the property.

¶24.      In Lemon we quoted the United States Supreme Court that “[i]n situations where the

State feasibly can provide a pre-deprivation hearing before taking property, it generally must

do so regardless of the adequacy of a post-deprivation . . . remedy to compensate for the

taking.” 735 So. 2d at 1020 (quoting Zinermon v. Burch, 494 U.S. 113, 132, 110 S. Ct. 975,

108 L. Ed. 2d 100 (1990)). This Court notes that due process does not always require the state

to provide a hearing prior to an initial deprivation of property. Lemon, 735 So. 2d at 1020

(citing Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997)).

However, to satisfy the requirements of procedural due process, “either the necessity of quick

action by the State or the impracticality of providing any meaningful pre-deprivation process,

when coupled with the availability of some meaningful means by which to assess the propriety

of the State’s action at some time after the initial taking,” is required. Lemon, 735 So. 2d at

1020 (citing Parratt v. Taylor, 451 U.S. 527, 538, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)).

There was certainly no necessity of quick action by the State in the case sub judice considering

the easement was granted in 1993 and the construction on the site did not start until 1995.

Furthermore, there was no impracticality of serving process on the Webbs.         Therefore, the

Webbs’ due process rights were violated by the taking of their property without notice and

without a pre-deprivation hearing.

          III.   Appraisal

¶25.      The Webbs argue that the appraisal on which Town Creek based its easement is invalid

and void. Town Creek does not dispute the fact that the appraisal described a different tract of

                                                12
land than the land on which the actual easement was granted. An updated appraisal was filed

with the court on September 14, 2000. The amount of compensation to be awarded the Webbs

is a matter that has yet to be tried in the trial court, and as such, the issue should be decided on

remand.

        IV.      Whether Town Creek is liable to the Webbs for damages under 42
                 U.S.C. § 1983 for violation of due process rights, and for loss of the
                 pine trees by virtue of Miss. Code. Ann. § 95-5-10.

¶26.    The trial court held that because Town Creek was not guilty of violating any rights of

the Webbs, that they had no cause of action by virtue of 42 U.S.C. § 1983, and also found that

because the taking of the Webb property was not tortious, the Webbs could not recover under

Miss. Code Ann. § 95-5-10. This Court finds that the Webbs’ due process rights were violated

and that the trial court erred in ruling otherwise.           Accordingly, the Webbs are    entitled to

pursue their claims, subject to the requisite applicability, proof and damages, as to be

determined by the trial court on remand.

                                              CONCLUSION

¶27.    This Court finds that the trial court erred in holding that the Webbs were not entitled

to notice of the taking of their land.       This Court also finds that the lack of notice resulted in

a violation of the Webbs’ due process rights.             Therefore, the summary judgment is reversed,

and this case is remanded for a trial on all issues consistent with this opinion.

¶28.    REVERSED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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