United States District Court, S.D. Mississippi, Southern Division
BAY POINT PROPERTIES, INC. PLAINTIFF
MISSISSIPPI TRANSPORTATION COMMISSION, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION  TO DISMISS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion  to Dismiss filed by Defendants
Mississippi Transportation Commission (“MTC”),
Mississippi Department of Transportation
(“MDOT”), Dick Hall, Mike Tagert, Wayne H. Brown,
Melinda McGrath, Larry “Butch” Brown, and Daniel
B. Smith. Plaintiff Bay Point Properties, Inc. (“Bay
Point”) owns fourteen acres of land sitting on the
eastern shore of the Bay of Saint Louis in Mississippi.
However, the Mississippi State Highway Commission held a
permanent easement over the land for highway purposes to
facilitate the construction and maintenance of the eastern
foot of the bridge spanning the bay. In 2005, Hurricane
Katrina struck the Mississippi Gulf Coast, destroying the
bridge. MTC and MDOT rebuilt the bridge, after which they
decided to also construct a public park on the remainder of
the property that fell within the geographic limits of the
Point sued MTC and MDOT in state court, arguing that
construction of the park constituted a taking of Bay
Point's land. A jury awarded Bay Point as just
compensation $500.00 in damages, and the Mississippi Supreme
Court affirmed the judgment. Bay Point now brings this suit
in federal court, seeking over $16 million in just
compensation and a declaratory judgment that Defendants'
actions and two Mississippi statutes are unconstitutional.
Because Bay Point's claims are barred by the Eleventh
Amendment to the United States Constitution, Defendants'
Motion  to Dismiss should be granted. This case will be
dismissed without prejudice for lack of jurisdiction.
Point is a Mississippi corporation that owns a 14.34 acre
parcel of land in Pass Christian Isles, Mississippi. Compl.
 ¶¶ 10, 20. This property sits at the eastern
foot of the U.S. Highway 90 bridge that crosses the Bay of
St. Louis in Mississippi. Id. Bay Point purchased
the property from Wallace Walker on August 1, 1994.
Id. ¶ 21. During Walker's ownership of the
property, on May 27, 1952, he granted the Mississippi State
Highway Commission, which was the predecessor to MTC, an
easement over the property for highway purposes. Id.
¶ 24. The easement was obtained for the specific purpose
constructing “Toll Project No. 1, ” the bridge
crossing the Bay of St. Louis between the cities of Pass
Christian and Bay St. Louis. Id.
the easement was granted, MTC and MDOT operated Toll Project
No. 1 for more than fifty years until Hurricane Katrina
destroyed the bridge on August 29, 2005. Id. ¶
26. MTC and MDOT chose not to rebuild Toll Project No. 1, but
rather demolished and removed it. Id. ¶ 27. MTC
and MDOT decided to relocate the bridge and selected a
different roadbed for the new U.S. Highway 90, and thus the
bridge, which required the establishment of a new
right-of-way and the acquisition of additional property.
Id. ¶ 28. Ultimately, MTC and MDOT used 4.6
acres of Bay Point's tract of land to build the new
highway, bridge, and its necessary right-of-way. Id.
completion of the new bridge, MTC and MDOT elected to
construct a recreational park on the remainder of the
property that was not used for the new bridge but was still
subject to the easement. Id. ¶ 31. The park was
built on the abandoned roadbed of the discontinued Toll
Project No. 1. Id. ¶ 32. In its minutes dated
November 10, 2009, MTC authorized MDOT to enter into a
Memorandum of Agreement on behalf of MTC with Harrison County
regarding the financing, construction, and operation of the
park on Bay Point's property. Id. ¶ 36.
Under the Memorandum, MTC would construct the park and
Harrison County would operate and maintain it. Id.
Bay Point learned of MTC and MDOT's intention to
construct the park, it sent a letter to MTC and MDOT on
November 20, 2009, objecting to the park's construction
and demanding that construction cease. Id. ¶
40. On December 2, 2009, Defendant Daniel Smith,
Administrator of the Right-of-Way Division of MDOT, emailed
Bay Point requesting to discuss the issue. Id.
¶ 41. Ultimately, MTC took the position that the
original easement had not been abandoned and that Mississippi
Code section 65-1-51 authorized it to construct the park on
the property in question under the existing easement.
Id. ¶ 48. Section 65-1-51 states, in relevant
part, that the MTC “may acquire and have the
Transportation Department develop publicly owned and
controlled rest and recreation areas and sanitary and other
facilities within or adjacent to the highway right-of-way
reasonably necessary to accommodate the traveling
public.” Miss. Code. Ann. § 65-1-51. MTC informed
Bay Point that it intended to build the park and would not
purchase the property from Bay Point. Compl.  ¶ 48.
The park has been completed and is currently being operated
by Harrison County. Id. ¶ 51.
Bay Point's state-court jury trial and appeal
April 1, 2011, Bay Point filed an inverse condemnation suit
against MTC and MDOT in the Circuit Court of Harrison County,
Mississippi. Id. ¶ 53. A jury trial took place
from August 5 to August 13, 2013. Id. ¶ 54. The
jury returned a verdict in favor of Bay Point on its inverse
condemnation claim, finding that the use of the property was
not for highway purposes and that there was a taking of Bay
Point's property for public use. Id. ¶ 57.
The trial court instructed the jury that unless it found that
MTC had released the easement on its minutes, MTC retained
the easement and the jury could award Bay Point a sum of
money not to exceed a nominal sum supported by the evidence
in the case. Id. ¶¶ 55, 58. The jury
determined that the easement continued to encumber the
property, Miss. Sup. Ct. Op. [1-1] at 1-2, and awarded Bay
Point $500.00 in damages, Compl.  ¶ 59. The trial
court denied Bay Point's motion for attorneys' fees
and costs, and entered a Final Judgment on January 8, 2014.
Id. ¶ 60.
Point appealed the trial court's Final Judgment to the
Supreme Court of Mississippi, id. ¶ 61, which
affirmed the merits of the Final Judgment on July 21, 2016,
id. ¶ 62. After the Supreme Court of
Mississippi resolved Bay Point's appeal, on March 3,
2017, Bay Point filed a petition for a writ of certiorari
with the United States Supreme Court, which denied Bay
Point's petition on June 26, 2017. Compl.  ¶
Bay Point's Complaint in federal court
21, 2017, Bay Point filed a Complaint  in this Court
pursuant to 42 U.S.C. § 1983, advancing several claims
for constitutional violations. The Complaint names as
Defendants MTC, MDOT, Mike Tagert and Tom King, in their
capacities as Mississippi Transportation Commissioners, Wayne
Brown and William Minor, in their capacities as former
Mississippi Transportation Commissioners, Melinda McGrath, in
her capacity as Executive Director of the MDOT, Larry
“Butch” Brown, in his capacity as former
Executive Director of MDOT, and Daniel Smith, in his capacity
as Administrator of the Right-of-Way Division of MDOT. Compl.
I, II, and VI of the Complaint bring takings, substantive due
process, and unreasonable seizure claims, respectively.
Compl.  at 19. These claims rest upon similar grounds,
specifically, that Defendants physically invaded Bay
Point's property and destroyed Bay Point's property
rights without just compensation. Bay Point alleges that when
MTC and MDOT discontinued Toll Project No. 1, the purpose of
the easement was terminated and the property was no longer
burdened by the easement under common law. Id. at
79. MTC was then mandated to release the easement on its
minutes under Mississippi Code section 65-1-123.
Alternatively, Bay Point claims that section 65-1-123 cannot
be applied retroactively to the easement created in 1952. Bay
Point contends that Defendants' enforcement of
Mississippi Code sections 65-1-123 and 65-1-51 to take Bay
Point's land without just compensation is
Count III advances a procedural due process claim, Compl. 
at 34, and Count IV alleges a violation of equal protection,
id. at 35. Bay Point claims that Defendants violated
the Contracts Clause of the Fourteenth Amendment in Count V
on grounds that Mississippi Code section 65-1-123(5)-(7) was
not added to the statute until 1988, and Defendants cannot
retroactively apply that ...