Anse Gerald McDonald v. Jerry King
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-CA-00688-COA
ANSE GERALD MCDONALD AND LAUREEN J.
MCDONALD
APPELLANTS
v.
JERRY KING
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/08/2009
HON. KENT MCDANIEL
RANKIN COUNTY SPECIAL COURT OF
EMINENT DOMAIN
JOHN DENVER FIKE
MARK C. BAKER SR.
CIVIL - EMINENT DOMAIN
DISMISSED APPELLANTS’ APPLICATION
FOR A PRIVATE ROAD
AFFIRMED - 04/19/2011
BEFORE GRIFFIS, P.J., MYERS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Anse and Laureen McDonald appeal the judgment of the Special Court of Eminent
Domain in Rankin County dismissing the McDonalds’ petition for the establishment of a
private road through the property of Jerry King for the purpose of ingress and egress to the
McDonalds’ property. The McDonalds now appeal, claiming that the Special Court of
Eminent Domain incorrectly acted as an appellate court in its consideration of the case and
that the court used the improper standard for determining whether to establish a private road.
Finding no error, we affirm the judgment of the Special Court of Eminent Domain. The
Special Court of Eminent Domain found that the evidence failed to show that a route across
King’s property was reasonably necessary to access the McDonalds’ property.
FACTS
¶2.
The McDonalds own approximately eighty acres of land in Simpson County,
Mississippi, and this property is also accessible from Rankin County, Mississippi. King
owns land in Rankin County, which adjoins Moncure Road, a public road located north of
the McDonalds’ land in Simpson County. King’s property has access to Moncure Road by
way of an existing driveway on his property.
¶3.
In 2008, the McDonalds filed a complaint for the removal of obstruction of an
easement through a portion of King’s land, which would allow Anse to haul sand from his
property using eighteen-wheeler trucks for the purposes of operating his commercial mining
business. On July 9, 2008, the Rankin County Chancery Court held that the McDonalds did
not possess an easement across King’s property. The McDonalds then filed a complaint in
the Special Court of Eminent Domain on October 13, 2008, seeking to establish a private
road through a portion of King’s land for ingress and egress, as provided under Mississippi
Code Annotated section 65-7-201 (Rev. 2005). The McDonalds claimed that without an
easement across King’s property, they are landlocked from accessing their property. The
McDonalds asserted that no other access exists to their land for the purposes of running their
business other than the private road across King’s property. King argued, however, that
allowing the McDonalds to use his property in such a manner would endanger his health,
safety, and welfare.
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¶4.
On August 27, 2009, the Special Court of Eminent Domain conducted the
“reasonableness” segment of the bifurcated trial, as required under section 65-7-201. After
considering the reasonableness of the McDonalds’ petition for a private right-of-way, the
Special Court of Eminent Domain dismissed the McDonalds’ petition without prejudice on
October 8, 2009. The trial judge found that King’s suggestion of building a road along an
alternate route provided reasonable access to the McDonalds’ land. He also held that the
McDonalds had failed to provide any monetary figures regarding the cost of building an
alternate road to access their property. The trial judge determined that based on the figures
that actually were provided at the hearing, the cost of building a new road for the purpose of
operating the McDonalds’ commercial mining business did not constitute an unreasonable
cost. This appeal followed.
STANDARD OF REVIEW
¶5.
The Mississippi Supreme Court has established that the standard of review of
eminent-domain proceedings is as follows:
This Court reviews decisions of a special court of eminent domain as it would
any trial court. We review questions of law de novo, and we will not overturn
findings of fact where they are supported by substantial evidence in the record
unless there was abuse of discretion by the trial judge or the findings were
manifestly wrong or clearly erroneous.
Morley v. Jackson Redevelopment Auth., 874 So. 2d 973, 975 (¶11) (Miss. 2004) (internal
citations omitted).
DISCUSSION
I.
Whether the Special Court of Eminent Domain incorrectly acted
as an appellate court.
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¶6.
The McDonalds argue that in the present case, the court followed the procedure of the
pre-amended version of section 65-7-201, which, prior to the 2003 amendment, allowed the
county board of supervisors to survey the land and adjudicate the most reasonable route of
ingress and egress. The board of supervisors’ decision was then appealable to the county
court.
The McDonalds assert that in the 2003 amendment to section 65-7-201, the
Legislature removed the power to adjudicate private-way proceedings from the board and
gave it to the special court of eminent domain, therein granting the special court of eminent
domain original, exclusive jurisdiction over issues concerning the application for eminent
domain for a private road for the purposes of ingress and egress to a landlocked parcel. The
McDonalds claim that Special Court of Eminent Domain, thus, acted outside of its scope and
power by improperly acting as an appellate court, instead of determining the case on its
merits.
¶7.
Section 65-7-201, as amended in 2003, states that:
When any person shall desire to have a private road laid out through the land
of another, when necessary for ingress and egress, he shall apply by petition,
stating the facts and reasons, to the special court of eminent domain created
under Section 11-27-3 of the county where the land or part of it is located, and
the case shall proceed as nearly as possible as provided in Title 11, Chapter 27
for the condemnation of private property for public use. The court sitting
without a jury shall determine the reasonableness of the application. The
owner of the property shall be a necessary party to the proceedings. If the
court finds in favor of the petitioner, all damages that the jury determines the
landowner should be compensated for shall be assessed against and shall be
paid by the person applying for the private road, and he shall pay all the costs
and expenses incurred in the proceedings.
The statutory language instructs the Special Court of Eminent Domain to determine the
reasonableness of the petitioner’s application for a private road. Mississippi Code Annotated
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section 11-27-3 (Rev. 2004), which created the Special Court of Eminent Domain,
establishes that “[t]he original powers and jurisdiction shall be and is hereby fixed in the
county court in each county that has elected to come under the provisions of section 9-9-1
Mississippi Code of 1972.”
¶8.
In their appellate brief, the McDonalds assert that the lower court failed to make a
determination based upon the merits of this case and simply relied on the assertions of the
Rankin County Board of Supervisors. However, the procedural history in the record before
us shows no decision by the Rankin County Board of Supervisors, nor any review of such
decision by the Special Court of Eminent Domain. Indeed, after a review of the record, we
find that the court conducted a bifurcated trial as required by section 65-7-201 and
determined the case on its merits, finding insufficient evidence that a route across King’s
property was reasonably necessary for ingress or egress to McDonalds’ property. We find
no instance in the record of the Special Court of Eminent Domain acting as an appellate
court; thus, this issue is without merit.
II.
¶9.
Whether the Special Court of Eminent Domain used the wrong
standard in determining the reasonableness of the application.
The McDonalds also claim that not only did the 2003 amendment to section 65-7-201
transfer the forum for eminent-domain proceedings, but it also changed the procedure for
such proceedings. Prior to the 2003 amendment, the private-way statute held that a person
desiring the establishment of a private road should apply by petition, and then the board of
supervisors should determine the reasonableness of the application based on the facts and
reasons stated in the petition. The amended version now states that a special court of eminent
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domain shall determine reasonableness based on the facts and reasons stated by the
petitioner, and it also states that the case shall proceed as nearly as possibly as provided in
Title 11, Chapter 27 for the condemnation of private property for public use.
¶10.
The McDonalds claim that the amended statutory language instructing that eminent-
domain cases proceed as closely as possible as provided in Title 11, Chapter 27 suggests that
the amendment changed not only the forum, but it also changed the standard that courts must
use in examining private-way petitions. The McDonalds claim that in this case before us,
the Special Court of Eminent Domain applied the standard of “no other possible routes,” a
standard which the McDonalds argue frustrates the purpose of condemning private property
for public use. The McDonalds submit that because the 2003 amendment to section 65-7-201
changed the standard for determining reasonableness of private-way petitions, the Special
Court of Eminent Domain’s misguidedly relied on pre-2003 case law in its decision. The
McDonalds claim that the court relied on the pre-2003 amendment standard to require a
showing of physical impossibility of creating an alternative route, when instead, it should
have used the standard of reasonable necessity.
¶11.
In cases falling under the purview of section 65-7-201, the Mississippi Supreme Court
has interpreted the phrase “necessary for ingress and egress” as reasonably necessary and not
absolutely necessary. Quinn v. Holly, 244 Miss. 808, 813, 146 So. 2d 357, 359 (1962).
Additionally, the petitioner carries the burden of proving the proposed private road is
reasonably necessary. Hooks v. George County, 748 So. 2d 678, 683 (¶27) (Miss. 1999).
¶12.
Despite the McDonalds’ allegations, the record reflects that the court heard testimony
regarding the reasonableness and existence of other possible alternative routes across and
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also south of King’s property. The trial judge clearly stated that his “role at this point is
simply to decide whether or not the complaint, which in this case seeks to condemn this
particular road that passes by the Kings’ house, is a reasonable route to get to the property.”
In addition, the transcript from the hearing reflects that the trial judge repeatedly referred to
Ganier v. Mansour, 766 So. 2d 3, 7-8 (¶¶14-17) (Miss. Ct. App. 2000), when discussing the
controlling law as to eminent-domain cases. In Ganier, this Court recognized the supreme
court’s “reasonable necessity” standard when determining whether a landowner is entitled
to an easement for ingress and egress over someone else’s land. Id. We further note that the
trial judge listened to testimony from the parties and their witnesses before dismissing the
McDonalds’ petition. After considering this evidence, the trial judge determined that the
alternate route proposed by King provided reasonable access to the McDonalds’ property;
hence, the McDonalds’ suggested route across King’s property was not necessary for ingress
or egress to the McDonalds’ property based upon the evidence presented. After our review
of the record, we find that the trial judge utilized the proper standard for determining
reasonableness in the bifurcated hearing in the present case; thus, we find no abuse of
discretion in the trial judge’s decision. This issue lacks merit.
¶13. THE JUDGMENT OF THE RANKIN COUNTY SPECIAL COURT OF
EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANTS.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE,
ROBERTS AND MAXWELL, JJ., CONCUR.
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