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THOMAS U. LAWRENCE, ET AL v. TOWN OF STONEWALL

FEBRUARY 18, 1987

THOMAS U. LAWRENCE, ET AL
v.
TOWN OF STONEWALL



BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

The appellants challenged the Town of Stonewall's petition to add an additonal use to land previously condemned by the town. The Special Court of Eminent Domain in Clarke County overruled the appellants' motion to dismiss the town's petition. We affirm.

FACTS

 The appellants owned a 28.2-acre tract along the Chickasawhay River which the Town of Stonewall condemned to expand their sewage system. On March 3, 1984, the circuit court of Clarke County awarded the appellants $18,550 and condemned the 28.2 acres to the town.

 On July 19, 1985, the town filed a petition in the Special Court of Eminent Domain in Clarke County to obtain the right to build a boat launching ramp on 2.5 acres of the previously condemned 28.2-acre tract. The appellants herein filed a Rule 12 (b)(6) motion to dismiss the town's petition asserting that the town had "no authority under the laws of the State of Mississippi to take private property through eminent domain proceedings for additional uses of recreational and other municipal purposes in the construction of a boat ramp." The trial judge dismissed the 12 (b)(6) motion after hearing oral argument.

 On September 5, 1985, the appellants filed a motion to dismiss the town's petition pursuant to Miss. Code Ann. 11-27-15 (1972). The circuit judge overruled the appellant's motion on September 4, 1985. Pursuant to Miss. Code Ann. 11-27-15 (1972), the appellants appeal the circuit judge's ruling.

 The Mississippi Code provides a special statute which allows defendants to file a motion to dismiss a petition in eminent domain on the following grounds:

 1. That the petitioner 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. 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 (1972).

 This statute also allows an appeal from an order overruling or granting a motion to dismiss directly to the Supreme Court. Id.

 The Mississippi Constitution provides:

 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 judcial question, and as such, determined without regard to the ...


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