Real Estate & Property Law

Miss App: Takings Statute Of Limitations Didn't Expire Because There Was No Taking (And Even If There Was One, The Claim Is Too Late)

By Robert Thomas (inversecondemnation.com)

The plaintiff owned property down in the land of the Delta Blues. The intersection of Highways 61 and 361 in Coahoma County, Mississippi. That's a pic of the courthouse, taken a few years ago, by the way (yeah, we went there). 

The owner tried several businesses there, first a blues club, then another club known as "Showtime," and later a restaurant. Between Showtime and the restaurant, the County's public works department struck and damaged the water utility's supply lines that run along Highway 316, including the line that supplies water to the property. The damaged line is on land on which the County has a right-of-way, and is about 1/2 mile away from the plaintiff's land. 

Instead of repairing the line, it made more sense for the County and the water company to simply paid each property owner who was then currently receiving water service the cost to repair their lines themselves. Problem was that the plaintiff here was no longer an active customer of the water utility because she hadn't paid some past bills. Thus, no one ever notified her of the damage to the lines or the decision to not repair hers. Later, after doing renovations for the soon-to-be restaurant, she asked about water service only to be told that she'd have to pay $33k to install a new line.

Lawsuits ensued. Among the claims: inverse condemnation. Mississippi law contains a one-year statute of limitations. The trial court (see photo above) entered summary judgment in favor of the County -- the plaintiff had waited too long, and the statute was not tolled by non-discovery of the problem. The plaintiff appealed on the limitations issue alone.

In Sturdivant v. Coahoma County, No. 2019-CA-00751-COA (Sep. 15, 2020), the court of appeals affirmed. But not primarily on the grounds that she filed too late. Instead, the court held that even if all the facts the plaintiff alleged were true, this didn't amount to a taking under Mississippi law. The plaintiff didn't actually own the damaged water line, the water utility did. Her property was not rendered useless by the lack of water (she could pay to install a water line). Even if there was a taking, it wasn't for public use. The plaintiff's "access to water for her property does not benefit the public." Slip op. at 11.

And in a belt-and-suspenders approach, the court also affirmed the trial court's dismissal for filing too late: "[w]e agree with the circuit court that Sturdivant failed to use reasonable diligence to discover her injury and that her injury was not 'latent.'" Slip op. at 14. 

Sturdivant v. Coahoma County, No. 2019-CA-00741-COA (Miss. App. Sep. 15, 2020)

Full post as published by inversecondemnation on September 25, 2020 (boomark / email).