                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-CA-00522-SCT
CHARLES WILLIAM BRANAMAN, CARRIE ANN
BRANAMAN AND ROBERT D. CAIN
v.
LONG BEACH WATER MANAGEMENT DISTRICT

DATE OF JUDGMENT:                                 04/05/97
TRIAL JUDGE:                                      HON. WILLIAM L. STEWART
COURT FROM WHICH APPEALED:                        HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                         VIRGIL G. GILLESPIE
                                                  AMY E. GILLESPIE
ATTORNEY FOR APPELLEE:                            JOAN ELIZABETH LUND
NATURE OF THE CASE:                               CIVIL - EMINENT DOMAIN
DISPOSITION:                                      AFFIRMED - 01/14/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   4/8/99




     BEFORE SULLIVAN, P.J., MILLS AND WALLER, JJ.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




¶1. The present appeal concerns the procedures implemented according to Section 51-29-39 of the
Mississippi Code of 1972 as a means to acquire easements across the Branaman and Cain property on
behalf of the Long Beach Water Management District (hereafter the District). On November 27, 1996, the
District filed its Petition for Approval of Appraisement for Easements in the Chancery Court of the First
Judicial District of Harrison County, Mississippi, against Mr. Cain. A similar petition was filed against the
Branamans on December 11, 1996, together with a Fiat, Summons, and Notice to each defendant
individually. Attached to the Fiat and the Petition for Approval of Appraisement was a property appraisal
report regarding each defendant's property in order to obtain necessary easements. Before filing the petition
against Mr. Cain, the District mailed letters to him and the Branamans dated November 22, 1996, and
December 6, 1996, respectively, offering to purchase a permanent easement, a temporary construction
easement, and an access easement. The purpose of the actions was to take a portion of each owner's
property for drainage purposes.

¶2. On December 16, 1996, an objection to the appraisement and a demand for jury trial was filed on
behalf of Mr. Cain and the Branamans. On December 21, 1996, the chancery court entered two
interlocutory decrees granting the District a permanent perpetual easement, a temporary easement, and an
access easement across the Branamans' and Mr. Cain's properties. That same day the District deposited
into the registry of the chancery court $3,800 for the Branamans' property and $5,575 for the Cain
property.

¶3. A hearing on the petitions to determine just compensation and a motion to dismiss filed by the
defendants was conducted on February 21, 1997, before Chancellor William L. Stewart. The court
overruled the motion to dismiss that same day. Chancellor Stewart rendered his Opinion and Ruling of the
Court on March 14, 1997, and entered the Final Judgment on April 7, 1997. The landowners appeal to this
Court in a consolidated appeal, alleging a violation of their due process rights. Finding no due process
violation in the lower court, despite the lack of safeguards in the statutory procedure, we affirm the findings
of the chancellor in this case.

                                        STATEMENT OF THE LAW

                                                         I.

 WHETHER SECTION 51-29-39 OF THE MISSISSIPPI CODE IS UNCONSTITUTIONAL IN
    THAT IT DOES NOT CONTAIN SUFFICIENT DUE PROCESS GUARANTEES.

¶4. In their motion to dismiss, and on appeal to this Court, the landowners allege that the statutory
procedure implemented by the District in this case violates due process notions. Specifically, they contend
that the insufficiency of the notice provisions in the statute renders it unconstitutional on its face.

¶5. When we are asked to determine the constitutionality of a statute, "it is the duty of this Court to follow
and apply a statute enacted by the Legislature unless it is clearly unconstitutional . . . we are not justified in
striking a statute down unless its unconstitutionality appears beyond every reasonable doubt." Ivy v.
Robertson, 220 Miss. 364, 370, 70 So. 2d 862, 865 (1954).

¶6. The statute in question here, § 51-29-39 "Appraisement by commissioners as alternate method to
acquire land," reads in pertinent part as follows:

      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, and the damages resulting to the owners from such taking; provided that the board
      may specify, in case of any property, the particular purpose for which and the extent to which
      easement is desired, and the assessment of property in such case shall represent only the damages
      resulting from the use so specified. They may make a complete appraisement of all such lands, taken
      or to be taken, at one time, or at any time make appraisements as it becomes necessary or desirable.
      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.

     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.

Miss. Code Ann. § 51-29-39 (1990) (emphasis added).

¶7. As stated by the appellants, the ultimate goal of eminent domain is to insure that landowners receive due
process and just compensation. They argue that the procedures contained in Title 11, Chapter 27 of the
Mississippi Code should have been followed since those procedures provide safeguards to assure that the
landowner's rights are protected. However, § 11-27-33 (1972) specifically states, "The provisions of this
chapter shall not be applied to cases provided for by section 233 of the Constitution, or to those cases
covered under the provisions of section 51-29-39, Mississippi Code of 1972."

¶8. The power of eminent domain must be exercised in satisfaction of due process, including adequate
notice and the opportunity to be heard. Statutes granting this power are to 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 doubt.

Ferguson v. Board of Supervisors of Wilkinson County, 149 Miss. 623, 630-31, 115 So. 779, 780
(1928) (citing Wise v. Yazoo City, 96 Miss. 507, 519, 51 So. 453 (1910)). "Before one may be
judicially deprived of an important right, one must be given (a) reasonable advance notice of a hearing at
which (b) one is afforded a meaningful opportunity to assert and defend that right." American Fidelity
Fire Ins. Co. v. Athens Stove Works, Inc., 481 So. 2d 292, 295 (Miss. 1985); see also Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); In re Validation of $7,800,000
Combined Utility System Revenue Bond, 465 So. 2d 1003, 1018 (Miss. 1985); Covington v.
Covington, 459 So. 2d 780, 782 (Miss. 1984).

¶9. The District contends that the Branamans and Mr. Cain received adequate notice of the taking of their
property. They argue that the Branamans and Mr. Cain are residents who were personally served with the
petition and the Fiat, Summons, and Notice well in excess of the time dictated by the statute. In addition,
Mr. Gillespie, the attorney for both defendants, requested and was granted additional time to prepare his
case. The chancellor in this case afforded the appellants due process by allowing them additional time to
prepare for trial. However, we find that the statute itself does not contain sufficient due process safeguards.
Section 51-29-39 only requires two days notice in which to prepare for a hearing before the District can
take private property from private citizens and determine what just compensation should be. This is not
adequate notice.

¶10. The District and Amicus Town Creek Master Water Management District of Lee, Pontotoc, Prentiss,
and Union Counties confuse the issue presented by arguing that the appellants challenge the entire drainage
act. This is simply not the case. The appellant's only challenge is to Miss. Code Ann. § 51-29-39, the
statutory method providing drainage districts an alternative method to acquire land. Necessarily that would
include an attack on § 51-7-33 which allows for the "in lieu" method for acquisition of private property. The
District also cites several Mississippi cases upholding the constitutionality of the drainage act. See Cox v.
Wallace, 100 Miss. 525, 56 So. 461 (1911) (holding personal notice to landowners not required in the
organization of the district or the assessment of benefits, only notice by publication is required); Minyard v.
Pelucia Drainage Dist., 133 Miss. 847, 98 So. 225 (1923) (holding that the failure of the property
owner to file a claim for damages within the time provided by Section 4446 , presently Section 51-29-35, is
a waiver of his right to compensation for such right of way); Self v. Indian Creek Drainage Dist. No. 1,
158 Miss. 7, 128 So. 339 (1930) (addressing the lower courts approval of an assessment of benefits);
Wooten v. Hickahala Drainage Dist., 116 Miss. 787, 77 So. 795 (1918) (finding that the notices of the
organization of the district and assessment of benefits as required by the statutes are constitutional);
Riverside Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784 (1914) (upholding the
constitutionality of a trial without a jury and to allow a drainage district to pay damages into the chancery
clerk instead of directly to the landowner and finding that the law conferring the right of eminent domain is a
general as opposed to a special law); Jones v. Belzoni Drainage Dist. of Washington County, 102
Miss. 796, 59 So. 921 (1912) (holding that the drainage act as a whole does not deprive the landowner of
his property without due process of law); Aron v. Board of Commissioners of the Chuquatonchee
Consolidated Drainage Dist. of Clay and Chickasaw Counties, 294 So. 2d 188 (Miss. 1974).

¶11. A statute should not be allowed to stand simply because other sections in the same chapter have
survived constitutional attack or the particular section has survived an attack under unrelated, distinct facts
and circumstances. "[T]he provision complained of is not so inseparably connected with the remaining
portions of the act that, if the said provision were stricken down, the remainder of the act would also have
to go down . . . " Hudson v. Stuart, 166 Miss. 339, 351, 145 So. 611, 613 (1933). Some of these cases
are dated before the 1914 enactment of the alternative method of land acquisition. The opinion in Aron
does not address the type of notice required for the actual taking of land. Although § 51-29-39 was
mentioned as the method used to take the property, the issue presented today for this Court's consideration
was not even discussed in the Aron opinion. Aron, 294 So. 2d at 190. None of the other cases cited
supra deal with the specific due process claim before the Court on this appeal, the lack of sufficient notice
in order to prepare for the opportunity to be heard regarding just compensation.

¶12. The District argues that the appellants had plenty of notice since they had met personally with
Commissioner Wren, they had attended the public meeting and had the opportunity to look at all the
District's plans and when the appraiser for the district went to the appellants' property, they accompanied
the appraiser across their property. While this is true, it was not until they received the offer of settlement
that the appellants knew what the District was willing to pay for the taking of their property. Furthermore,
until they were served with the complaint from the District, they were unaware they would need to hire an
attorney and an appraiser to contest the offer made by the District for the taking of their property.

¶13. For the above reasons, we find that Miss. Code Ann. § 51-29-39 is unconstitutional on its face
regarding the very narrow due process issue of adequate notice to prepare for trial. Two days from the date
of service of process is inadequate time to hire an appraiser and prepare for a trial on the issue of just
compensation. Until such time as the Mississippi Legislature addresses the issue of adequate notice, the
Mississippi Rules of Civil Procedure will control the amount of notice that a landowner should be given after
a complaint is filed.

¶14. In this case, however, the chancellor allowed the appellants due process when he continued the
hearing to provide them adequate time to hire an appraiser and prepare for trial on the issue of just
compensation. As a result, we are compelled to affirm the lower court's judgment in this case.

                                                       II.

WHETHER THE STATUTORY PROCEDURE FOLLOWED IN THIS CASE VIOLATES DUE
 PROCESS REGARDING PAYMENT OF JUST COMPENSATION AND BY DEPRIVING
           LANDOWNERS OF THEIR RIGHT TO A TRIAL BY JURY.

¶15. Appellants also contend that § 51-29-39 is unconstitutional, because it violates their right to a trial by
jury and Section 17 of our Constitution regarding payment of just compensation. They maintain that the
District was allowed to take their property without first paying monetary damages directly to them. The
chancery court granted an interlocutory decree allowing the district to acquire the easements and pay the
amount of compensation according to the District's appraisal into the clerk of the court. Both of these
contentions are without merit.

¶16. The constitutionality of allowing the chancery court to try the case without a jury trial has been upheld
in Riverside Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784 (1914). Furthermore, this Court
stated long ago in Carradine v. Estate of Carradine, 58 Miss. 286, 293 (1880), "[T]he granting of a jury
trial, in the Chancery Court, where no statute prescribes one, is always discretionary with the chancellor, as
has several times heretofore been announced by this court." See also Tillotson v. Anders, 551 So. 2d.
212, 214 n.2 (Miss. 1989) (explaining that "Section 31 [of article 3 of the Mississippi Constitution] is of no
effect in chancery.")

¶17. Regarding appellants' contention that it is unconstitutional to allow the District to pay the clerk of the
chancery court the compensation instead of directly paying the landowners, we once again in Riverside
Drainage District upheld the constitutionality of this procedure. In addition, Miss. Code Ann. § 11-27-33
specifically excludes cases covered under § 51-29-39 from application under the provisions in chapter 27
on eminent domain. Appellants' arguments on this issue are without merit.

                                                      III.

  WHETHER THE COURT ERRED IN GRANTING AN INTERLOCUTORY QUICK TAKE
                         OF THE PROPERTY.

¶18. Nowhere in the Drainage District Act is there a procedure for a quick take. The entry of the
interlocutory decree divested the appellants of their property and granted the right of entry to the District
without notice, without a hearing, and without any due process procedures. The District does not address
this contention in its brief other than with a general argument that its actions in this case satisfied due
process, and the appellants had ample notice that the easements across their land would be necessary in
order to complete the project. We find that it would serve no purpose to set aside the interlocutory decree
entered by the court on December 20, 1996. However, 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.

                                                      IV.

 WHETHER THE CONDEMNER MUST FOLLOW THE REAL PROPERTY ACQUISITION
      POLICIES LAW WHEN PUBLIC FUNDS ARE USED IN THE PROJECT.

¶19. Title 43, Chapter 37, Section 1 et seq. is entitled "Real Property Acquisition Policies Law." Miss.
Code Ann. § 43-37-1 (1993). "The provisions of this chapter shall be applicable only to the acquisition of
real property under the laws of this state for use in any project or program in which federal funds are used."
Id.

¶20. The District argues that this chapter does not apply to the alternative, chancery court procedure of
securing easements utilized by the District. Its first argument is that the District operates under statutes
specifically designed for drainage districts, so under the rules of statutory construction, the more specific law
controls. It cites Kilgore v. Barnes, 508 So. 2d 1042, 1046 (Miss. 1987), to support this contention. In
Kilgore the Court analyzed two statutes that were in direct conflict. In this case, there is no direct conflict.

¶21. The Real Property Acquisition Policies Law governs any acquisition of real property for use in any
project in which federal funds are used. The statute does not state that the funds must be used in the actual
acquisition of the needed property. There is no dispute that although the District is not using federal funds to
acquire the necessary easements, it will use federal funds in the actual construction of the project.
Therefore, the "Real Properties Acquisition Policies Law" is applicable to the case at bar and its
requirements must be satisfied.

¶22. The main contention by the appellants is that the District did not make all necessary efforts to negotiate
with the landowner before instituting a lawsuit. Section 43-37-3(a) (1993) requires that "[e]very reasonable
effort shall be made to acquire expeditiously real property by negotiation." The District argues that it
satisfied this requirement when it made written offers to the landowners, including a full disclosure and
breakdown of each component of the just compensation figure. Mr. Cain did not respond to this offer,
thereby foreclosing any further negotiation. The Branamans were only given five days to even consider this
offer before a formal suit was filed. However, as the District points out, the Branamans rejected the offer
within that time period. After careful consideration, we find that the District satisfied these requirements.

                                                       V.

WHETHER THE LANDOWNERS RECEIVED JUST COMPENSATION AS GUARANTEED
                 BY THE MISSISSIPPI CONSTITUTION.

¶23. Section 17 of the Mississippi Constitution provides:

      Private property shall not be taken or damaged for public use, except on due compensation being first
      made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt
      is made to take private property for a use alleged to be public, the question whether the contemplated
      use be public shall be a judicial question, and, as such, determined without regard to legislative
      assertion that the use is public.

¶24. This Court has elaborated on what compensation is to be paid:

      Due compensation is what ought to be made--that is, what will make the owner whole pecuniarily for
      appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference
      with some right in relation to property whereby its market value is lessened as the direct result of the
      public use.

King v. Vicksburg Ry. & Light Co., 88 Miss. 456, 487, 42 So. 204 (1906).

¶25. The appellants argue in general that they did not receive just compensation and that the only way for
them to receive just compensation is to reverse the case and remand it to the Special Court of Eminent
Domain. This general assertion is unfounded. The record demonstrates that the appellant landowners did
receive just compensation. There is no reason to detail the testimony of the two appraisers who testified at
trial on behalf of each party. The appellants received a fair trial, and the chancellor has the exclusive power
in finding the amount of just compensation. Lee v. Indian Creek Drainage Dist. Number One, 246
Miss 254, 148 So. 2d 663 (1963). "Members of this Court may not agree with the result reached by the
trial court as to damages done land by the acquisition of private property through eminent domain
proceedings, but the jury (or chancellor, as the case may be) is the judge of the weight and worth of the
testimony." Id. at 262, 148 So.2d at 665.

¶26. The District had the appellants' property appraised by qualified registered appraisers. The appellants
presented their own expert appraisal witness to be considered by the chancellor. "When a portion of a
larger tract of land is taken for public use, the owner is entitled to be awarded the difference between the
fair market value of the entire tract immediately before the taking and the fair market value of the remaining
tract immediately after the taking." Mississippi Transp. Comm'n v. Fires, 693 So. 2d 917, 920 (Miss.
1997). Both the appraisers who testified at trial used the proper so-called "before and after" valuation of the
property. At the conclusion of the hearing, the chancellor requested that the parties summarize their
testimony and send it to the court in written form for review. The chancellor received an analysis of the just
compensation hearing by both parties. After considering all the evidence, the chancellor, by applying the
correct standard, raised the amount that had previously been paid into the clerk on behalf of the Branamans
and confirmed the amount paid for the Cain easements. We hold that the chancellor was not manifestly
wrong in his award of damages in this case.
                                               CONCLUSION

¶27. We hold that the notice provision in Miss. Code Ann. § 51-29-39 does not comport with due process
and consequently is unconstitutional on its face. However, we determine that the appellants here were given
due process by the chancellor when he awarded them a continuance to prepare for trial. There is no specific
authority in the Drainage District Act that authorizes a quick take of the appellants' land. However, we
further find that the appellants are not entitled to a jury trial, were awarded just compensation, and received
a fair trial. As a result, we affirm the final judgment of the chancellor in this case.

¶28. AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., BANKS, ROBERTS, SMITH, MILLS AND WALLER, JJ.,
CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.


      McRAE, JUSTICE, DISSENTING:

¶29. The easement is equivalent to an eminent domain proceeding since the public body is taking
Branaman's lands by easement; therefore, the easement should be treated equivalently to that of an eminent
domain proceeding. Given such status, a plaintiff in an easement case, as in any eminent domain proceeding,
should have access to a jury trial under Article 3, § 31 of our Mississippi Constitution. Section 31 grants the
legislature leave to reduce a chancery or circuit court jury's size to nine members, not to vaporize the jury
right. Indeed, § 31 states that "[t]he right of trial by jury shall remain inviolate, . . ." Further, since § 31
grants the legislature the mere leave to reduce the size of a chancery court jury, not the power to eliminate
that jury right itself, it is evident that the right to a jury trial exists in chancery court.

¶30. Such a reasoned conclusion is viable despite the majority's reference to Tillotson v. Anders, 551 So.
2d 212 (Miss. 1989) that § 31 lacks effect in chancery court. See id. at 214 n.2. Indeed, New Orleans,
Baton Rouge, Vicksburg & Memphis Railroad Co. v. Drake, 60 Miss. 621 (1882), an eminent
domain case involving a railroad charter, states, regarding an appeal or objection to an appraisal as here,
that "there is no constitutional objection to a jury in the Chancery Court for the trial of the appeal provided
for by the charter. . ." See id. at 626. While Drake regards a statutory charter, it is useful in the instant case
because the statute at issue here has been deemed facially unconstitutional and no longer holds until the
legislature acts. Given the statute's unconstitutional status, we revert to § 31 of our Constitution which
requires jury trials. Drake becomes applicable when jury trials are available. Thus, a jury trial should have
been granted in this case.

¶31. Regardless, § 31 is quite clear that a jury trial is available to the plaintiff where a dispute exists and
money is involved. Yet, even if the majority is accurate in its reliance on Tillotson and other cases, the case
should be transferred to county court where a jury trial may be attained.

¶32. As previously explained, this easement case involves the same situation as would exist with any
eminent domain case. Hence, I would reverse for a jury trial. I dissent.
