Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
City of Gulfport v. Orange Grove Utilities Inc.
January 14, 1999
CITY OF GULFPORT
ORANGE GROVE UTILITIES, INC. AND HANCOCK BANK
The opinion of the court was delivered by: Mills, Justice
DATE OF JUDGMENT: 06/24/97
TRIAL JUDGE: HON. MICHAEL L. CARR, JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY SPECIAL COURT OF EMINENT DOMAIN
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED - 3/31/1999
¶1. The motion for rehearing is granted, the original opinion is withdrawn, and this opinion is substituted therefor.
¶2. The City of Gulfport filed an eminent domain action to condemn the water and sewage facilities and certificates of public convenience and necessity of Orange Grove Utilities on October 6, 1996. Orange Grove then filed a motion to dismiss. The trial court granted Orange Grove's motion to dismiss and held that the City of Gulfport was without authority to condemn any of the Orange Grove certificated areas or facilities lying beyond the City of Gulfport's corporate limits. The Court also held that the City of Gulfport was first required to cancel Orange Grove Utilities' certificate of public convenience and necessity in order to acquire the certificated area within the city limits. The city submits that the ruling of the trial Judge was erroneous and specifically assigns the following issues as error:
"I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT WATER AND SEWER UTILITIES ARE NOT EXCLUDED FROM THE CANCELLATION REQUIREMENTS OF MISS. CODE ANN. § § 77-3-17 & 77-3-21. "II. WHETHER THE TRIAL COURT ERRED IN HOLDING THE CITY WAS WITHOUT AUTHORITY TO CONDEMN ORANGE GROVE'S FACILITIES AND CERTIFICATES BEYOND THE CITY LIMITS. "III. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE CITY'S ACQUISITION OF A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY IS A PREREQUISITE FOR CONDEMNATION OF ORANGE GROVE'S CERTIFICATE OUTSIDE THE CITY LIMITS. "IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING ORANGE GROVE TO OFFER EVIDENCE AND TESTIMONY ON ITS MOTION TO DISMISS OVER THE OBJECTION OF THE CITY. "V. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADVISE THE CITY THAT THE MOTION TO DISMISS WAS BEING CONVERTED TO A MOTION FOR SUMMARY JUDGMENT AND FAILING TO ALLOW THE CITY ADEQUATE TIME TO RESPOND. "VI. WHETHER THE TRIAL COURT ERRED IN GRANTING ORANGE GROVE'S MOTION TO DISMISS."
¶3. In 1991, the Harrison County Chancery Court granted the annexation of a portion of land north of Interstate 10 to the City of Gulfport. The annexation brought a large part of the Orange Grove Utilities, Inc. certificated area within the City of Gulfport. The remaining Orange Grove area is within five miles of the city limits. Due to this annexation, the City of Gulfport filed an eminent domain action to condemn Orange Grove's water and sewage facilities and certificates of public convenience and necessity. Orange Grove is a private utility and has a certificate of public convenience and necessity from the Public Service Commission.
¶4. In the annexation proceeding, the Harrison County Chancery Court found that because of septic tanks in the area, "A potential health hazard exists within the PAA (proposed annexation area) which poses a threat to the health of the residents of both the PAA and the City." Orange Grove was not a party to the annexation and the utility claims there were no findings by the court which involved public necessity for the condemnation. Both parties agree that if the city were to acquire only a portion of the Orange Grove utility area, several residents in the area outside the corporate limits of Gulfport would be left without supply facilities or pumping stations. This would leave these citizens without water or sewer service. The city appeals from the Harrison County Chancery Court's decision to dismiss the condemnation proceedings.
I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT WATER AND SEWER UTILITIES ARE NOT EXCLUDED FROM THE CANCELLATION REQUIREMENTS OF MISS. CODE ...
Buy This Entire Record For