CHERYL L. HIGH
TODD KUHN AND ANGELA T. KUHN
OF JUDGMENT: 01/10/2017
COUNTY SPECIAL COURT OF EMINENT DOMAIN HON. MICHAEL H. WARD
COURT ATTORNEYS: VIRGIL G. GILLESPIE STEVEN NICHOLAS NEWTON
ROBERT THOMAS SCHWARTZ
ATTORNEY FOR APPELLANT: STEVEN NICHOLAS NEWTON
ATTORNEY FOR APPELLEES: VIRGIL G. GILLESPIE
KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
In High v. Kuhn, 191 So.3d 113 (Miss. 2016)
(High I), we reversed and rendered the judgment of
the special court of eminent domain, specifically finding the
plaintiffs, Todd and Angela Kuhn, were not entitled to
condemn Cheryl High's property for a private road. The
statutory procedures governing eminent-domain actions permit
a defendant like High to recover expenses—including
attorney's fees—when "the judgment be that the
plaintiff is not entitled to a judgment condemning
property[.]" Miss. Code Ann. § 11-27-37 (Rev.
2004). Following this Court's mandate, High moved the
special court for an award of attorney's fees and
expenses under Section 11-27-37.
The special court held Section 11-27-37 did not apply and
denied High's request. High again appealed to this Court.
And once again, we must find error. The Kuhns clearly invoked
the statutory procedures of the special court of eminent
domain when they petitioned that court for the statutory
right to condemn High's property for a private road.
Thus, Section 11-27-37—the eminent domain statute which
provides for the recovery of attorney's fees and
Because the award of fees and expenses under Section 11-27-37
is discretionary, not mandatory, we remand this matter to the
special court of eminent domain to consider the merits of
High's motion and the reasonableness of her request for
$25, 990.58 in attorney's fees and expenses, plus
Facts and Procedural History
The Kuhns bought their landlocked residential property
knowing the current route to their driveway—over
High's neighboring property—could be cut off at any
point in the future. When High soon after refused to allow
them to use her property to get to theirs, they invoked the
procedures of Mississippi Code Section 65-7-201 (Rev. 2012)
and petitioned the Harrison County Special Court of Eminent
Domain for a private road across High's property.
At the close of the Kuhns' evidence, High moved for
dismissal. She argued the undisputed evidence showed her
property was in the City of Gulfport. And Section 110 of the
Mississippi Constitution clearly prohibited condemning for a
statutory private road any property ...