Bill Text: MS HB1540 | 2010 | Regular Session | Introduced
Bill Title: Eminent domain; allow opportunity for removal of house on property acquired by Department of Transportation.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Failed) 2010-02-02 - Died In Committee [HB1540 Detail]
Download: Mississippi-2010-HB1540-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Transportation; Judiciary A
By: Representative Sullivan
House Bill 1540
AN ACT TO PROVIDE THAT IF THE DEPARTMENT OF TRANSPORTATION ACQUIRES PROPERTY THROUGH EMINENT DOMAIN PROCEEDINGS AND A HOUSE OR OTHER RESIDENTIAL STRUCTURE IS LOCATED ON THE PROPERTY, THE DEPARTMENT SHALL NOT DEMOLISH OR DISMANTLE THE HOUSE OR OTHER STRUCTURE WITHIN ONE HUNDRED TWENTY DAYS AFTER THE DATE THE DEPARTMENT ACQUIRED THE PROPERTY; TO PROVIDE THAT THE DEPARTMENT SHALL OFFER THE HOUSE OR OTHER STRUCTURE FOR SALE AND ADVERTISE FOR BIDS AND MAY SELL THE HOME OR OTHER STRUCTURE AFTER THE RECEIPT OF SEALED BIDS; TO PROVIDE THAT IF THE HOUSE OR OTHER STRUCTURE IS NOT SOLD WITHIN THE ONE HUNDRED-TWENTY-DAY PERIOD, THEN THE DEPARTMENT MAY DEMOLISH OR OTHERWISE REMOVE THE HOUSE OR STRUCTURE; TO BRING FORWARD SECTIONS 65-1-47, 65-1-303, 65-1-305 AND 65-1-317, MISSISSIPPI CODE OF 1972, WHICH RELATE TO THE USE OF EMINENT DOMAIN BY THE MISSISSIPPI TRANSPORTATION COMMISSION AND THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION, FOR THE PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. If the Department of Transportation acquires property through eminent domain proceedings and a house or other residential structure is located on the property, the department shall not demolish or dismantle the house or other structure within one hundred twenty (120) days after the date the department acquired the property. The department shall offer the house or other structure for sale and advertise for bids in such a manner as the department determines to be appropriate and may sell the house or other structure after the receipt of sealed bids. If the house or other structure is sold during the one hundred-twenty-day period, the department shall allow a reasonable period, regardless of whether beyond the one hundred twenty (120) days, for the removal of the house or structure from the property. If the house or other structure is not sold within the one hundred-twenty-day period, then the department may demolish or otherwise remove the house or structure if necessary.
SECTION 2. Section 65-1-47, Mississippi Code of 1972, is brought forward as follows:
65-1-47. The Mississippi Transportation Commission shall have complete authority to issue rules, regulations and orders under which the Mississippi Transportation Department shall have control and supervision, with full power and authority under rules, regulations and orders issued by the commission, to locate, relocate, widen, alter, change, straighten, construct or reconstruct any and all roads on the state highway system heretofore or hereafter taken over by it for maintenance as a part of such system, and shall have full and complete authority for regulating the making of all contracts, surveys, plans, specifications and estimates for the location, laying out, widening, straightening, altering, changing, constructing, reconstructing and maintaining of and the securing of rights-of-way for any and all such highways, and to authorize the employees of the Mississippi Transportation Department to enter upon private property for such purposes.
The Mississippi Transportation Department, under the rules, regulations and orders spread upon the minutes of the Mississippi Transportation Commission, is authorized and empowered to obtain and pay for the rights-of-way of such width as it may determine to be necessary for such highway or for any alteration or change therein or relocation thereof by agreement with the owners of such lands. Rights-of-way of not less than sixty (60) feet wide shall be acquired except within the boundaries of towns and cities where unusual conditions exist, in which case the commission is authorized and empowered to have obtained and paid for such rights-of-way of such width as it may determine to be necessary. Said commission may have condemned any and all land or other property needed for such purposes or either of them; may have condemned or acquired by gift or purchase lands containing road building materials and develop and operate pits, mines or other properties for the purpose of obtaining road material; and have condemned or acquired by gift or purchase lands necessary for the safety and convenience of traffic.
Said commission, in case an agreement cannot be reached with the owners of land containing road building materials or of any additional land necessary for widening any existing public highways, for laying out a new public highway, or for changing the route of an existing public highway, as provided in the foregoing part of this section, shall be authorized to have condemned any land needed for either of said purposes, as is fully set forth in this section. The proceedings to acquire such lands by a condemnation shall be in conformity with the statutes on the subject of "eminent domain," the power of eminent domain being hereby expressly conferred upon said commission for such purposes. Such proceedings shall take precedence over all other causes not involving the public interest in all courts and shall be given preference to the end that construction and reconstruction of highways hereunder may not be unreasonably delayed. The amount of such compensation and damages, if any, awarded to the owner in such proceedings shall be paid out of the State Highway Fund. The authorities constructing such highway, under the authority as provided in this section, shall use diligence to protect growing crops and pastures and to prevent damage to any property not taken. So far as possible, all rights-of-way shall be acquired or contracted for before any construction contract work order is issued.
The estate which the Mississippi Transportation Commission is authorized to acquire by deed or condemnation as set forth above shall include all rights, title and interest in and to the lands or property being acquired, excepting and excluding all the oil and gas therein or thereunder and such other rights, title or interest which are expressly excepted and reserved to the property owner, his successors, heirs or assigns in the deed or condemnation petition by which the property is acquired. Any property interest acquired may be in unlimited vertical dimension. The Mississippi Transportation Commission shall decide what right, title and interest are necessary for highway purposes on each particular project and may, by order on its minutes, authorize its agents to expressly except all or any others.
SECTION 3. Section 65-1-303, Mississippi Code of 1972, is brought forward as follows:
65-1-303. (1) When, in the exercise of its duties, the Mississippi Transportation Commission finds it necessary to condemn property, the commission shall institute a civil action by filing in the circuit or county court of any county in which the land is located a complaint and a declaration of taking that such land, easement or interest therein is thereby taken for the use of the Department of Transportation.
(2) The declaration shall contain or have attached thereto the following:
(a) A statement of the authority under which and the use for which the land is taken;
(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof; (c) A statement of the estate or interest in the land taken for public use and a description of area taken for the identification thereof;
(d) The names and addresses of those persons who the Transportation Department is informed and believes may have or claim to have an interest in the lands, so far as the same can be by reasonable diligence ascertained; and, if any such persons are infant, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated; and
(e) A statement of the sum of money which constitutes the fair market value as determined by the Transportation Department to be just compensation for the taking.
(3) The complaint shall contain or have attached thereto the following:
(a) A statement of the authority under which and the public use for which the land is taken;
(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof;
(c) A statement of the estate or interest in the land taken for public use and a description of the area taken sufficient for the identification thereof;
(d) The names and addresses of those persons who the Transportation Department is informed and believes may have or claim to have an interest in the lands, so far as the same can be by reasonable diligence be ascertained; and, if any such persons are infants, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated;
(e) A statement as to such liens or other encumbrances as the Transportation Department is informed and believes are encumbrances upon the real estate and can by reasonable diligence be ascertained; and
(f) A prayer that there be a determination of just compensation in accordance with the provisions of this article.
(4) The filing of the complaint and the declaration of taking shall be accompanied by the deposit of the sum of money, the fair market value, determined by the Transportation Department to be just compensation for the taking; and, upon the filing of the complaint and the declaration and deposit of the sum, summons shall be issued and, together with a copy of the complaint and the declaration of taking and notice of the deposit, shall be served upon the person named therein in the manner now provided for the service of process in civil actions. The Transportation Department may amend the complaint and declaration of taking and may increase the amount of its deposit with the court at any time while the proceeding is pending, and the owner shall have the same rights of withdrawal of this additional amount as set forth in Section 65-1-307.
SECTION 4. Section 65-1-305, Mississippi Code of 1972, is brought forward as follows:
65-1-305. (1) Upon the filing of the complaint and the declaration of taking and deposit in court, to the use of the person entitled thereto, of the amount of the compensation stated in the declaration, and upon the Transportation Department having filed proof of service of process, title to the land or such other interest therein specified in the complaint and the declaration of taking, together with the right to immediate possession thereof, shall vest in the Mississippi Transportation Commission, and the judge shall enter such orders in the cause as may be required to place the transportation commission in possession and title. Thereafter, the land shall be deemed to be condemned and taken for use of the Transportation Department, and the right to just compensation therefor shall vest in the person owning the property or any compensable interest therein at the time of the filing of the complaint and the declaration of taking and deposit of the money in court. Compensation shall then be determined and awarded in the action and established by judgment therein.
(2) If there is a life estate and a remainder, either vested or contingent, in lieu of the investment of the proceeds of the amount determined and awarded as just compensation to which the life tenant would be entitled to the use during the life estate, the court, in its discretion, may order the value of the life tenant's share during the probable life of such life tenant to be ascertained as provided by law and paid directly to the life tenant out of the final award as just compensation established by the judgment in the cause, and the life tenant may have the relief provided for in Section 65-1-307.
(3) On and after July 1, 1997, the Transportation Department, at the time of the filing of the complaint and declaration of taking and deposit of fair market value compensation, shall record a memorandum of action in the land deed records of the chancery clerk in all counties in which the land involved therein is located, and the memorandum shall be recorded among the land records of the county. Upon the amending of any complaint and declaration of taking affecting the property taken, the Transportation Department shall record a supplemental memorandum of action. The memorandum of action shall contain the following:
(a) The names of those persons who the Transportation Department is informed and believes may have or claim to have an interest in the lands and who are parties to the action;
(b) A description of the entire tract or tracts affected by the taking sufficient for the identification thereof;
(c) A statement of the estate or interest in the land taken for public use; and
(d) The date of institution of the action, the county in which the action is pending, and such other reference thereto as may be necessary for the identification of the action.
SECTION 5. Section 65-1-317, Mississippi Code of 1972, is brought forward as follows:
65-1-317. (1) Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Transportation Department without the filing of a complaint and declaration of taking by the department may, within twenty-four (24) months of the date of the taking of the affected property or interest therein or the completion of the project involving the taking, whichever occurs later, file a complaint in the circuit or county court setting forth the names and places of residence of the parties, so far as the same can by reasonable diligence be ascertained, who own or have, or claim to own or have estates or interests in the real estate. If any such persons are under a legal disability, it must be so stated, together with a statement as to any encumbrances on the real estate. The complaint shall further allege with particularity the facts which constitute the taking together with the dates on which they allegedly occurred. The complaint shall describe the property allegedly owned by the parties and shall describe the area and interests allegedly taken. Upon the filing of the complaint, summons shall issue and, together with a copy of the complaint, shall be served on the Transportation Department as provided in Section 65-1-309. The allegations of the answer shall be deemed denied; however, the Transportation Department, within sixty (60) days of service of summons and complaint, may file an answer. If the taking is admitted by the Transportation Department, it, at the time of filing answer, shall deposit with the court the fair market value of compensation for the taking; and notice of the deposit shall be given to the owner. The owner may apply for disbursement of the deposit, and disbursement shall be made in accordance with applicable provision of Section 65-1-307. If a taking is admitted, the Transportation Department, within ninety (90) days of the filing of the answer to the complaint, shall file a map or plat of the land taken. This procedure shall be followed for the purpose of determining all matters raised by the pleading and the determination of just compensation.
(2) The plaintiff, at the time of filing of the complaint, shall record a memorandum of action in the land deed records in the office of the chancery clerk in all counties in which the land involved is located. The memorandum of action shall contain the following:
(a) The names of those persons who the plaintiff is informed and believes may have or claim to have an interest in the lands and who are parties to the action;
(b) A description of the entire tract or tracts affected by the alleged taking sufficient for the identification thereof;
(c) A statement of the estate or interest in the land allegedly taken for public use; and
(d) The date on which plaintiff alleges the taking occurred, the date on which the action was instituted, the county in which it was instituted and such other reference thereto as may be necessary for the identification of the action.
SECTION 6. This act shall take effect and be in force from and after its passage.
