Daily Development for Monday, April 24, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
CONSTITUTIONAL LAW; DUE PROCESS; NOTICE: Although due process does not require notice and hearing prior to an eminent domain taking, such process is required “whenever feasible,” and post deprivation remedies to insure adequate compensation are not acceptable substitutes.
Webb v. Town Creek Master Water Management, 903 So. 2d 701 (Miss. 2005).
Dan and Rachel owned a fee in lot A, and remainder interests in lots B, and C. The lived on Lot A. Denton and Ruby owned life estates in a lots B and C and lived on Lot C. District desired to put up a damn and sought to get a flooding easement. District scheduled an appraisal approval hearing on the taking, Lot B as the parcel to be taken. The notice of the hearing was sent only to Dan and Rachel, and it identified Lot A as the property to be taken.
The hearing occurred, but of course the hearing involved an appraisement of different property than that shown on the appraisal. Thereafter, District obtained an interlocutory decree permitting it to take the easement.
Almost seven years after the taking, District moved to add Denton (now his estate) and Ruby as defendants and sought to renew and confirm the original petition, presumably now on the appropriate property. The Dentons protested the taking claiming that the District lacked the authority to take their property without notice and hearing.
The trial court granted summary judgment to the District, ruling that no hearing was required prior to a taking, but rather only prior to appraisement, and the instant case provided an opportunity for a hearing on the appraisement.
The Mississippi Supreme Court here reversed, concluding that both the relevant statutes and the Due Process clauses of the state and federal constitutions required notice and hearing prior to any taking.
The court acknowledged that under some emergency circumstances states could authorize public agencies to have a “quick take” even prior to notice and hearing, but concluded that no such circumstances existed here and that, in any even Mississippi statutes did not confer the “quick take” power on the District.
It should be noted that the statute the court construed dealt only with the question of appraisement, not with the existence of a public purpose, but in any event the statute required notice and hearing of any objections to the appraisement prior to the taking.
The court observed that the United States Supreme Court had held that a post deprivation hearing is not an adequate Due Process substitute for a pre deprivation hearing.
Comment 1: The District argued strenuously that where there was no issue of whether a public use was at stake, it there was no Due Process right in getting notice and opportunity to be heard prior to the taking. The court answered that this was not the case. But it didn’t address the question of whether Due Process required a hearing in every case on the propriety of the public purpose, regardless of whether the “taking” determination was entitled to deference.
Comment 2: Particularly in light of the broad discretion now given to public agencies to determine whether a taking is in the public interest, it seems even more incumbent on public agencies to insure that a political process occurs that insures that it’s decisions are consistent and fair. The best way to do this is to provide with every landowner a pre-confirmation hearing on the subject of purpose as well as the subject of compensation. The court here doesn’t say that’s not the case, it just kind of tap dances around the issue, and we really don’t get a holding on that question here.
Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters. The same is true of all
commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 15 messages per work day.
Daily Developments are posted every work day.
subscribe, send the message
subscribe Dirt [your name]
To cancel your subscription, send the message
signoff DIRT to the address:
for information on other commands, send the
Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes
commercial and general real estate matters but also focuses specifically upon
residential real estate matters. Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the
signoff BrokerDIRT to the address:
DIRT is a service of the American Bar
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610
If you are an ABA member, log in to the ABA Web site at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=https://www.abanet.org/members/join/coa2.html
To review our privacy statement, go to https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/privacy_statement.html.
If you have any problems, please contact the list owner