American Tel. & Tel. Co. v. Purcell Co., Inc.

• Decision Date: 19 December 1990
• Docket Number: No. 07-CA-59153,07-CA-59153
• Citation: 606 So.2d 93
• Court: Mississippi Supreme Court
• Parties: AMERICAN TELEPHONE & TELEGRAPH COMPANY v. PURCELL COMPANY, INC. and Hancock Bank.

Page 93

606 So.2d 93

AMERICAN TELEPHONE & TELEGRAPH COMPANY v. PURCELL COMPANY, INC. and Hancock Bank.

No. 07-CA-59153.

Supreme Court of Mississippi.

Dec. 19, 1990.

Rehearing Denied Oct. 1, 1992.

Newt P. Harrison, James L. Halford, Brunini Grantham Firm, Jackson, Harry R. Allen, Allen Cobb & Hood, Robert W. Atkinson, Bryan Nelson Allen Firm, Gulfport, for appellant.

Virgil G. Gillespie, Gillespie & Gillespie, Gulfport, for appellee.

Before DAN M. LEE, SULLIVAN and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

I.

The Special Court of Eminent Domain of Hancock County dismissed American Telephone & Telegraph Company's [AT & T] Petition to Exercise Right of Eminent Domain for failure to first obtain a Certificate of Public Convenience and Necessity from the Mississippi Public Service Commission [MPSC], a condition precedent to the exercise of eminent domain by a public utility. We affirm.

II.

AT & T, a New York Corporation which provides long distance telecommunications across the country, is qualified to do business, and in good standing, in Mississippi. The Articles of Incorporation for AT & T are on file with the Mississippi Secretary of State. Mississippi receives long distance telephone service through two interrelated AT & T entities: AT & T, Interstate Division and AT & T Communications of the South Central States, Inc. (ATTCOM), a wholly owned subsidiary of AT & T. AT & T, Interstate Division, handles no intrastate calls.

ATTCOM is a result of the court ordered divestiture of AT & T which requires complete diversity and separation from the Bell System by 1991. Pursuant to the court ordered divestiture, AT & T, through hundreds of its planners, designed a national and international digital telecommunications network using fiber optic cable.

In February of 1987, pursuant to application and 47 USCA Sec. 151 et seq., the FCC granted a Certificate of Public Convenience and Necessity to American Telephone & Telegraph Company (AT & T) for the construction of a state-of-the-art telecommunications network utilizing fiber optic cable. A portion of the network, referred to as the Gulf Coast Lightguide System, was slated to run from Pensacola, Florida, to Beaumont, Texas, crossing Mississippi along the Gulf Coast, specifically Gulfport and Biloxi.

Several alternatives were considered in the selection of the route for the network between Pensacola, Florida, and New Orleans, Louisiana. The project supervisor determined that the best route was down the median of an interstate highway, specifically, I-10, a highway bounded by fences and is, therefore, a no-access highway. The project supervisor wrote a letter to the Mississippi State Highway Department suggesting AT & T be allowed to utilize either the median or right-of-way along I-10 for installation of its cable. The Mississippi State Highway Department rejected the suggestion, stating that in order to utilize the right-of-way of I-10 AT & T would have to show a compelling need, something it could not do. An alternate route was selected: the south side of the south right-of-way fence running along I-10. This route runs on private property, including the property of the residential resort community of Diamondhead in Hancock County, Mississippi. Diamondhead is owned by Purcell Company, Inc. (Purcell).

Diamondhead community encompasses land to the north and south of I-10 in Hancock County, Mississippi. The proposed route of the cable crosses 3 1/2 miles, or more than 15,000 feet, of Purcell's property.

AT & T entered into negotiations with Purcell regarding the permanent and working easements which ultimately proved unsuccessful. The parties stipulated that these negotiations met the requirements of the law. On August 27, 1987, AT & T filed with the Special Court of Eminent Domain of Hancock County, Mississippi, a Petition to Exercise Right of Eminent Domain pursuant to Miss.Code Ann. Sec. 77-9-717 (1972) which provides:

Telegraph and telephone companies, for the purpose of constructing new lines, are empowered to exercise the right of eminent domain, as provided in Chapter 27 of Title 11, Mississippi Code of 1972.

The parties stipulated that AT & T did not have a Certificate of Public Convenience and Necessity from MPSC. Purcell filed its Answer and Motion to Dismiss pursuant to Sec. 11-27-15, which reads:

Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the petition in the same court where the petition is pending, file a motion to dismiss the petition on any of the following grounds: (1) that the petitioner seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged. Any such motion, if filed, shall be heard and decided by the judge as a preference proceeding, without a jury, prior to the hearing on the petition. Any party may appeal directly to the supreme court from an order overruling or granting any such motion to dismiss, as in other cases, but if the order be to overrule the motion, the appeal therefrom shall not operate as a supersedeas and the court of eminent domain may nevertheless proceed with the trial on the petition. Any appeal from an order overruling or granting a motion to dismiss shall be a preference cause in the supreme court and advanced on the docket as appropriate.

The trial court took the case under advisement following a hearing on the Motion to Dismiss. Thereafter, the trial court dismissed the Petition of AT & T for failure to obtain a Certificate of Public Convenience and Necessity, a prerequisite to a public utility's exercise of the statutory authority of eminent domain.

STANDARD OF REVIEW

"Unlike other judicial proceedings, the Special Court of Eminent Domain results in the circuit judge [in counties where there is no county court] being the finder of facts in determining whether or not the condemnation petitions should be dismissed under the hereinbefore quoted MCA Sec. 11-27-15 As the proceedings have reached judicial proportions, there are certain elemental principles involved. Among them being, as said by this Court in Wise v. Yazoo City, 96 Miss. 507, 51 So. 453 (1910):

(1972) ... [t]he principle issue is whether or not the trial judge had sufficient basis to dismiss the condemnation petitions." Mississippi Power & Light Co. v. Conerly, 460 So.2d 107, 109 (Miss.1984) (emphasis added). Additionally,

"No power conferred on any corporation, either private or municipal, is to be more strictly construed than the power to exercise the right of eminent domain."

... "The power of eminent domain being in derogation of the common right, acts conferring it are to be strictly construed, and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the lands of the owner must be clearly embraced within the legitimate object of the power conferred. Where there is any doubt in regard to the extent of the power, the landowner must have the benefit of that doubt."

This Court recently has held that it is a general rule of statutory construction that where there is doubt of the right to exercise the power of eminent domain, the statutes will be strictly construed most favorably to the land owner. Roberts v. Mississippi State Highway Commission, 309 So.2d 156 (1975); Berry v. Southern Pine Electrical Power Association, 222 Miss. 260, 76 So.2d 212 (1954); and Ferguson v. Board of Supervisors, 149 Miss. 623, 115 So. 779 (1928).

Conerly, 460 So.2d at 111.

III.

AT & T argues that Congress has preempted State law with regard to the issuance of a Certificate of Public Convenience and Necessity for the construction of its primarily interstate telecommunications facility. We agree; Congress has preempted our State law in the field of interstate communications. See Communications Act of 1934, 47 U.S.C.A. Sec. 151 et seq. We also agree that because of this preemption, the State of Mississippi has no authority to regulate the interstate business of AT & T. Had the trial court ruled that AT & T was subject to being regulated by MPSC, or that the certificate to be obtained from MPSC was to determine the public necessity of construction and/or installing the fiber optic cable, this assignment would have merit. However, such is not the case; we are dealing not with regulation of interstate commerce, but with the proper and necessary procedures required by our state law to take private property by eminent domain.

The power of eminent domain is an inherent right of the State which

sleeps in the bosom of the state until aroused into activity by an act of the legislature. This high power is never to be presumed to be confided to any public or private body or corporation, however great may be the necessity for it to have and exercise such power. When it is asserted by any person or corporation, the state's assent must be clearly given in legislative acts, and the subjects for which it may be exercised specifically named.

Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 455 (1910) (emphasis added). Indeed, AT & T correctly acknowledges that it is bound by, and must adhere to, the laws of this state when attempting to take lands within Mississippi. See Sec. 11-27-1, Miss.Code.Ann. (1972), infra. All corporations, including public utility corporations, must follow State law when attempting to take State property by eminent domain. Therefore, the only issue left for discussion is: What does our State law require as condition[s] precedent, if any, to a public utility's exercise of the power of eminent domain.

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