Cheryl L. High v. Todd Kuhn
191 So. 3d 113
Miss.2016Background
- High owned a 35-foot strip in Gulfport that provided access to Swan Road; parts of the strip were exclusively hers while the Plitts owned a 10% interest covering a 15-foot portion.
- The Plitts sold their house and their 10% interest to the Kuhns; a side agreement acknowledged High could later restrict use of the portion outside the 15-foot interest and provided $3,750 to relocate the driveway if necessary.
- The Kuhns built a garage blocking relocation to the 15-foot access; High later erected a fence on her portion, blocking the Kuhns’ driveway and rejecting the Kuhns’ $1,500 offer for an easement.
- The Kuhns petitioned the special court of eminent domain under Miss. Code §65-7-201 for a private road easement across High’s property (within Gulfport city limits); the special court granted the petition and ordered a jury to determine compensation.
- High moved to dismiss, arguing Article 4, §110 of the Mississippi Constitution bars statutorily created private-road condemnations within incorporated cities; the special court found High waived that defense under Miss. Code §11-27-15 and suggested §110 might violate federal equal protection.
- The Mississippi Supreme Court granted interlocutory review, held §65-7-201 cannot be used to condemn property within an incorporated city because of Art. 4, §110, and ruled §11-27-15 did not bar High’s constitutional defense; the judgment granting the easement was reversed and rendered for High.
Issues
| Issue | Plaintiff's Argument (Kuhn) | Defendant's Argument (High) | Held |
|---|---|---|---|
| Whether §65-7-201 authorizes condemning private property within an incorporated city | §65-7-201 permits petition to special court of eminent domain for private road easement | Art. 4, §110 of the Mississippi Constitution prohibits legislative authority to provide private-road condemnations in incorporated cities or towns | §65-7-201 cannot be used to condemn property within an incorporated city; petition denied |
| Whether High waived Art. 4, §110 defense by not raising it five days before hearing under §11-27-15 | Waiver; failure to raise §110 timely precludes defense | §11-27-15 lists only three specific public-condemnation defenses that must be raised; §110 defense applies to availability of statutory remedy for private condemnations and was timely raised after petitioners rested | §11-27-15 does not apply; High did not waive the constitutional defense |
| Whether Art. 4, §110 violates Equal Protection (federal) | §110 is unconstitutional because it treats city residents differently from county residents regarding access remedies | §110 has a rational basis (public roads, municipal ordinances, health/safety reasons); disparity is permissible | §110 does not violate Equal Protection; rational basis exists |
| Whether High is entitled to reasonable expenses/attorneys’ fees under §11-27-37 on appeal | (Not separately pursued below) | High requested fees on appeal | Denied without prejudice; fees require separate action or post-trial motion under §11-27-37 |
Key Cases Cited
- Quinn v. Holly, 244 Miss. 808, 146 So. 2d 357 (Miss. 1962) (upholding earlier private-road statute as enacted pursuant to Art. 4, §110)
- Highway Comm’n of Miss. v. Havard, 508 So. 2d 1099 (Miss. 1987) (rules of civil procedure govern special court of eminent domain proceedings)
- Cox v. Warren County, 600 So. 2d 935 (Miss. 1992) (§11-27-37 creates a separate cause of action for recovery of expenses when plaintiff is not entitled to condemnation)
- Mississippi Municipal Ass’n v. State, 390 So. 2d 986 (Miss. 1980) (equal protection permits disparities that have a rational basis)