Pearl River Val. Water Supply Dist. v. Brown

Decision Date07 October 1963
Docket NumberNo. 42886,42886
Citation156 So.2d 572,248 Miss. 4
PartiesPEARL RIVER VALLEY WATER SUPPLY DISTRICT v. J. Leland BROWN et al.
CourtMississippi Supreme Court

Robert H. Weaver, Watkins, Pyle, Edwards & Ludlam, Jackson, for appellant.

Lee, Moore & Countiss, Jackson, J. P. Coleman, W. D. Coleman, Ackerman, for appellees.

GILLESPIE, Justice.

The appellant, Pearl River Valley Water Supply District (herein sometimes called District), filed suit to condemn 34.3 acres of land located in Madison County. The land was sought by the District for the purposes hereinafter mentioned in connection with the construction and development of a reservoir and related facilities in accordance with the authority granted the District by Chapter 197, Miss.Laws 1958. The owner of said lands, J. Leland Brown, and his wife, Mrs. Amie Brown, were made defendants in the condemnation suit.

In due time and before the condemnation suit was tried, appellees filed in Circuit Court a petition for a writ of prohibition. In this petition reference was made to the condemnation suit which was then pending in the special court of eminent domain in Madison County. The petition and the answer thereto raised the issues hereinafter stated and discussed. The petition sought and the court granted a temporary writ of prohibition pending final hearing.

Upon conclusion of the hearing on the merits, the Circuit Court found that 7.6 acres of appellees' land would be turned over by the District to the Natchez Trace Parkway for the relocation of the parkway; 2.10 acres was below contour, 296 above sea level and would be permanently inundated; 5.4 acres was between contour 296 and contour 300 and would be subject to occasional inundation; and the remaining 19.3 acres was above contour 300 above sea level. All of said land is within one-quarter mile of contour 300 feet above sea level. The Court dissolved the temporary writ of injunction as to all of said lands to be used for relocation of the Natchez Trace and that below contour 300 above sea level, and made the writ permanent as to the remaining 19.3 acres. The District appealed directly from that part of the judgment of the Circuit Court making the writ of prohibition final as to 19.3 acres. J. Leland Brown and his wife cross-appealed from that part of the judgment vacating the temporary writ of prohibition and declining to make final said writ as to said lands in excess of 19.3 acres.

In his opinion the Circuit Judge referred to the provisions of the Act creating the District providing that a person actually living on the land shall have certain rights of repurchase and stated that '* * * due to the fact that the provision is in the statute, it is my opinion that public necessity should be clearly and without doubt shown before a person's homestead may be taken.' The Circuit Judge then concluded that there was no public necessity for the taking of the 19.3 acres.

The minutes of the Board of Directors of the District declaring the necessity for the condemnation of appellees' land was made Exhibit B to the application in the eminent domain suit and was set forth in the answer to the petition for a writ of prohibition, being as follows:

'WHEREAS, this Board does now find and determine that most of the lands more particularly described in Exhibit 'A', attached hereto and made a part hereof, is located below the 300 foot above sea level contour and will be inundated either permanently or periodically; that the remainder of said described lands are located within one-quarter (1/4) mile from the outside line of the 300 foot above sea level contour on each side of Pearl River; that all of said lands are necessary for the construction, operation and maintenance of said Reservoir, for the recreational development of the shoreline, to provide access to the Reservoir and its shoreline, for the control of the Reservoir and the protection of its waters from pollution, and such other uses as are authorized by law, as specified in the said Resolution of this Board captioned 'General Policies of Land Acquisition'; that the only interchange connecting the Natchez Trace Parkway with the Pearl River Reservoir is located immediately adjacent and contiguous to said lands; that part of said lands are required for the relocation of the Natchez Trace Parkway itself; that many persons will come from the Natchez Trace Parkway and will need public access and public accommodations here; that in addition to Natchez Trace Parkway traffic, Highway 43 serves a tremendous and populated area requiring public access and public accommodations; that a public park and public facilities such as boat launching facilities, picnic facilities, restaurant facilities and motel facilities will be required on said lands; that a portion of these lands are needed for a wildlife sanctuary to be prepared by the District; * * *.'

The entire land involved in this controversy consisting of 34.3 acres has been occupied by appellee and his family for ten years, but title was not acquired by appellee until 1960. It is located in the north and east of the intersection of Mississippi State Highway 43 and the Natchez Trace Parkway. The said intersection is located on the west side of the proposed 30,000 acre reservoir. This intersection is about ten miles north of the west end of the dam which is located near a Natchez Trace Parkway interchange by means of which traffic can leave the Natchez Trace Parkway and go to the dam. There is to be no other interchange going north on the Natchez Trace Parkway between the dam and the interchange at Highway 43. There will be an additional interchange about eight miles north of the Highway 43 interchange. Between the interchange near the dam and the interchange at the intersection with Highway 43, there will be three underpasses where local traffic can go under the Natchez Trace Parkway to reach certain areas of shore property lying between the Natchez Trace Parkway and the reservoir. For most of the distance the Natchez Trace Parkway, between the interchange at the dam and the interchange at Highway 43, runs close to the water line and there is no land between contour 300 and the Natchez Trace exceeding about ten feet in width. So for practical purposes, the western boundary of a large part of said ten-mile strip will be the Natchez Trace Parkway.

After the reservoir is filled there will be only 161 acres of land in the area of the intersection of the Natchez Trace Parkway and Highway 43 above contour 300 Ninety-seven acres of this land has already been acquired by the District and the remaining part is involved in this and other litigation.

The engineer for the District, the president of the District Board, and the State Health Officer, who is also a member of the District Board, all testified. Extensive inquiries were made concerning the public needs of other reservoirs similar to the proposed Pearl River Reservoir, and the witnesses visited and studied thirteen other such projects. Based on these studies, including the actual statistical data from the experiences of other reservoirs, it was estimated that when the District completes and fills the reservoir it will be visited by approximately 2,630,000 people annually with a daily average of 7,200, and on peak days, 46,000. The public will require 67 ramps for launching boats, 41 picnic areas, 10 swimming beaches, 414 tent spaces, 104 guest rental units, 5 restaurants, and 6 organizational camps. It was estimated by the witnesses that 22 1/2% of the visitors to the entire reservoir will use the area at the intersection of Highway 43 and the Natchez Trace Parkway, and the same percentage of the said facilities will be needed by the public in that area, that is, on the 161 acres of land between contour 300 and the Natchez Trace Parkway, and the same percentage of appellee, J. Leland Brown. The number of visitors will nearly triple in ten years after completion of the reservoir. Said witnesses testified that the acquisition by the District of the land in question was imperative in order to control access to the reservoir and to control pollution, and that if the District did not own and control this piece of land it would frustrate the whole project, and they were of the opinion that the entire 161 available acres in the intersection area was insufficient for the needs of the District.

All of said witnesses were of the opinion that the District needed a minimum of 660 feet above contour 300 above sea level around the entire perimeter of the reservoir in order to adequately control pollution and access to the reservoir. It was shown by these witnesses that facilities such as swimming beaches, community houses, rental units for overnight visitors, gasoline stations, restaurants, boat launching facilities, parking areas, and like facilities are customarily provided at public reservoirs. These witnesses also stated that the City of Jackson is now paying $500,000 annually to the District for water and that the continuance of this payment depended on the District furnishing the City of Jackson a supply of pure water. They were of the opinion that pollution control could not be accomplished by exercise of the zoning powers, but that it was imperative to own the land so that any lease made thereof could provide for control. Because so many people would use the Natchez Trace-Highway 43 area, it would be necessary to control the collection and disposal of all wastes so as not to pollute the water.

The plans are not final as to the exact use to be made of each part of appellees' land, except that it will all be needed for pollution control and for access control. All of said witnesses testified that it would be needed for various park and recreational purposes including those mentioned.

The engineer and president testified that final plans for use of appellees' land could not be made until the District determined what land would be available to the District.

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