New v. State Highway Commission

• Decision Date: 22 July 1974
• Docket Number: No. 47587,47587
• Citation: 297 So.2d 821
• Parties: W. E. NEW et ux. v. STATE HIGHWAY COMMISSION of Mississippi.
• Court: Mississippi Supreme Court

Page 821

297 So.2d 821

W. E. NEW et ux. v. STATE HIGHWAY COMMISSION of Mississippi.

No. 47587.

Supreme Court of Mississippi.

July 22, 1974.

Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, for appellants.

R. L. Netterville, Natchez, for appellee.

RODGERS, Presiding Justice.

This is an eminent domain proceeding in which the Highway Commission of the State of Mississippi sought to acquire 0.13 of an acre of land from W. E. New and wife for highway purposes. The land is located on the north side of highway 61 between Natchez and Woodville, Mississippi. The original proceeding was instituted in the County Court of Adams County, Mississippi, to accord with Section 2749-04, Mississippi Code 1942 Annotated (Supp.1972), which now appears as Mississippi Code Annotated Section 11-27-7 (1972).

On the day set for trial, the Highway Commission requested the court to permit it to amend the petition so as to show that there was an outstanding mortgage on the property to Mrs. La Una Wilgus Oliver in which E. H. Fitzpatrick, Jr. was trustee. The amendment was made and the case was continued for process.

The case was again set for hearing, but the landowners filed a plea in abatement and advised the court that the mortgagee had not been summoned. The trustee appeared and advised the court that he had no authority to receive the service of process upon Mrs. Oliver, the mortgagee. The county court, over the objection of the landowners, proceeded to try the case before a jury to verdict and judgment.

On appeal to this Court the landowners have suggested that the mortgagee is a necessary party and that the trial court committed reversible error in proceeding to trial without summoning the mortgagee. The appellee argues in response to this postulate that the landowners have no standing to object to the court's action for the mortgagee. The highway commission cites as authority for its position, the case of Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 199 So. 367 (1941). In Dantzler, this Court held under This law is brought forward in Mississippi Code Annotated Section 11-27-7 (1972) attached hereto as an appendix. The new law requires that the circuit judge or county judge shall by order direct the circuit clerk to issue an order of the court fixing the time and place of the hearing, fixing a date to allow sufficient time for each defendant named to be served with process. The law then expressly states: 'If a defendant, or other party in interest, shall not be served for the specific time prior to the date fixed, the hearing shall be continued to a day certain to allow the thirty-day period specified.'

a statute (Section 1482, Mississippi Code 1930) that the objection of non-joinder was not available to a party not affected thereby. Since that time, however, the Legislature established an entirely new eminent domain court and procedure (Ch. 520, (1971) Miss.Gen.Laws 794) prior to the petition in the instant case (November 3, 1972).

The purpose of this provision in the law is to give all persons interested in the property sought to be acquired by eminent domain proceedings an opportunity to be heard at one time, so as to prevent subsequent litigation by interested persons who were not notified.

We are of the opinion that the Legislature intended to set out in detail the method of acquiring property by eminent domain; that the requirement of the law that all parties of interest be made parties and be duly notified by proper process is not directory, but is part of the procedure and must be strictly followed. Mississippi Power Company v. Leggett, 197 So.2d 475 (Miss.1967).

The Highway Commission contends, however, that the trustee was summoned as an agent of the mortgagee and the mortgagee was, therefore, duly summoned. We cannot agree with this contention. Although the trustee is the legal holder of the title to the property, the mortgagee is an interested party and must be summoned since she has a lien on the property sought to be condemned.

We must, therefore, reverse this case so that all parties interested in the land sought to be acquired may be properly notified by legal process.

Since this case must be retried, there is another issue that should be mentioned. During the original trial the landowners offered testimony to show their inability to use a certain small building in connection with their business, and they offered testimony to show that they would be required to travel on the highway four hundred (400) feet or more to reach a crossoever. They said that the driveway or entrance from the new highway would not be as wide as the driveway they now use. Appellants contend that the present use of the property by them as a residence and commercial use of the property is the highest and best use of the property, and, in effect, any reduction in the present use of the property would reduce the market value of the property. Of course, the present use of the property, as well as any other usage for which the property is suited, may be shown in evidence; but it is well settled that the measure of damages for the taking of land for a public use is the difference between the fair market value of...