Before Sullivan, P.j., Mills And Waller, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice,
DATE OF JUDGMENT: 04/05/97 TRIAL JUDGE: HON. WILLIAM L. STEWART COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
DISPOSITION: AFFIRMED - 01/14/99
¶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.
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 ...