Does a Mississippi county owe just compensation to neighboring shopping-center stores in a cross-parking agreement when it takes only a non-owner's land?

Plain-English summary

Madison County wanted to widen a heavily trafficked roadway and needed to acquire a slice of right-of-way that ran along a commercial shopping center. The actual land was owned by one store. But every store in the center was a signatory to a "cross parking agreement," giving each store certain rights or obligations across the shared parking and access areas. The county asked the AG whether it had to pay just compensation to all the cross-parking signatories, even the ones who did not own the strip the county was taking.

The AG said no, by separating two distinct doctrines.

The first is the constitutional and statutory rule on just compensation. Article 3, Section 17 of the Mississippi Constitution requires due compensation "to the owner thereof." Section 43-37-3 codifies the procurement procedure and, in Section 43-37-3(c)(i), entitles only "the owner of the real property" to just compensation, with possible additional compensation for damage to the remainder of that owner's tract. The statute does not extend payment to anyone else.

The second is the case law on what counts as a compensable element when a partial taking occurs. Trustees of Wade Baptist Church v. Miss. State Highway Comm'n, 469 So. 2d 1241 (Miss. 1985), and Muse v. Miss. State Highway Comm'n, 103 So. 2d 839 (Miss. 1958), say access and parking are not separately compensable; they may only be considered insofar as they affect the value of the remaining tract. Even there, the AG noted, the county's facts said the taking did not touch any of the parking or access areas. So the cross-parking agreement was not implicated.

The AG had two important caveats. First, the AG cannot interpret a contract; the cross-parking agreement was not provided and the AG would not infer its terms. Second, this opinion only addresses statutory compensation rights. The AG did not opine on whether a cross-parking agreement might separately give one store contract claims against another. That is a question between the shopping-center stores, not between the stores and the county.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who gets paid when the county takes land for a road?

Only the owner of the parcel being taken. Section 43-37-3(c)(i) is explicit. If part of a larger tract is taken and the remaining tract loses value, that loss in remainder value can be added to the compensation, but it goes to the same owner.

Don't the other stores have rights through the cross-parking agreement?

Maybe, but those rights are contractual claims against other private parties, not eminent-domain claims against the county. The AG did not interpret the agreement and pointedly declined to apply it.

Are access and parking rights compensable in eminent domain?

Not as separate elements. Trustees of Wade Baptist Church and Muse hold that access and parking are considered only as they affect the value of the remaining tract. They are baked into the remainder valuation, not paid out separately.

What if the taking actually shrinks the parking lot?

Different question. Here the AG noted Madison County had said the strip being acquired did not touch the parking or access areas. If a future taking did touch them, the analysis would shift to a remainder-valuation question for the affected owner.

What does Section 43-37-3 require the county to do procedurally?

Make every reasonable effort to negotiate with the owner of the real property being acquired (Section 43-37-3(a)). Pay just compensation to that owner, plus appropriate damages for the remainder of their tract (Section 43-37-3(c)(i)).

Background and statutory framework

Article 3, Section 17 of the Mississippi Constitution: private property shall not be taken or damaged for public use except upon due compensation to "the owner thereof."

Section 43-37-3 implements that command for any acquisition of real property using public funds. The relevant subsections require reasonable negotiation with the owner of the property being acquired (subsection (a)) and just compensation to that owner with possible additional compensation for damages to the remainder (subsection (c)(i)).

Section 7-5-25 limits AG opinions to questions of state law for prospective guidance. The AG cannot interpret a private contract.

The two cases that matter are Trustees of Wade Baptist Church v. Miss. State Highway Comm'n, 469 So. 2d 1241 (Miss. 1985), citing Miss. State Highway Comm'n v. McArn, 246 So. 2d 512 (Miss. 1971), and Muse v. Miss. State Highway Comm'n, 103 So. 2d 839 (Miss. 1958). Together they hold that just compensation has two components, the value of the property taken and the damage to the remainder, and that access and parking are not standalone valuation categories. They are only relevant to the extent they affect remainder value.

The AG combined those threads. The cross-parking agreement, whatever its private contract terms, did not transform a non-owner store into an "owner" under Section 43-37-3(c)(i). It also did not turn parking access into a separately compensable element under Trustees of Wade Baptist Church. And the county's facts ruled out any actual physical impact to the parking lot or access areas.

The opinion is signed by Assistant Attorney General Kim P. Turner on behalf of Attorney General Lynn Fitch.

Citations

• Mississippi Constitution Article 3, Section 17 (just compensation)
• Miss. Code Ann. Section 43-37-3 (acquisition of real property)
• Miss. Code Ann. Section 43-37-3(a) (negotiation with owner)
• Miss. Code Ann. Section 43-37-3(c)(i) (just compensation to owner)
• Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
• Trustees of Wade Baptist Church v. Miss. State Highway Comm'n, 469 So. 2d 1241, 1244-45 (Miss. 1985)
• Miss. State Highway Comm'n v. McArn, 246 So. 2d 512, 514 (Miss. 1971)
• Muse v. Miss. State Highway Comm'n, 103 So. 2d 839, 847 (Miss. 1958)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/09/M.Espy_August-31-2020-Eminent-Domain.pdf

Original opinion text

August 31, 2020

Mike Espy, Esq.
Board Attorney, Madison County Board of Supervisors
Post Office Box 608
Canton, Mississippi 39046

Re: Eminent Domain

Dear Mr. Espy:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

Must Madison County offer "just compensation," pursuant to Mississippi Code Annotated Section 43-37-3(c)(i), to commercial stores that are parties to a "cross parking agreement," though none have an ownership interest in the property the county seeks to acquire?

Background

Madison County intends to acquire a right-of-way in order to expand a heavily trafficked county roadway. The property is owned by one store, located within a commercial shopping center. However, all stores in the shopping center are parties to a "cross parking agreement." The property the county seeks to acquire does not touch upon, lessen, diminish or reduce any part of the parking lot or access area(s) within the shopping center.

Brief Response

Pursuant to Mississippi Code Annotated Section 7-5-25, the Office of the Attorney General is authorized to issue official opinions upon questions of state law only. Thus, we cannot by official opinion interpret the terms or provisions of an agreement or contract or infer facts that may be relevant to our opinion. Thus, this opinion is not based on any term or provision of the referenced cross parking agreement, a copy of which was not provided with your request. Further, this office has relied solely upon the background facts as were provided by your request and as recited above in the issuance of its official opinion.

Madison County must only pay just compensation to the owner of the real property being acquired, in accordance with Section 43-37-3.

Applicable Law and Discussion

Our constitution mandates that private property shall not be taken or damaged for public use except upon due compensation to the owner thereof. MISS. CONST. art III, § 17 (emphasis added).

Due compensation has two components: The value of the property taken and the damage, if any, to the remainder. Trustees of Wade Baptist Church v. Miss. State Highway Comm'n, 469 So. 2d 1241, 1244 (Miss. 1985) (citing Miss. State Highway Comm'n v. McArn, 246 So. 2d 512, 514 (Miss. 1971)). Stated differently, when a part of a larger tract is taken, the property owner is entitled to the difference between the fair market value of the whole tract, immediately prior to the taking, and the fair market value of the remaining tract, immediately after the taking. Neither access nor parking are attributes or capabilities of land subject to separate valuation in eminent domain proceedings. They may be considered only insofar as they affect the value of the property remaining after the taking. Trustees of Wade Baptist Church, 469 So. 2d at 1245; Muse v. Miss. State Highway Comm'n, 103 So. 2d 839, 847 (Miss. 1958).

The facts set forth in your request, however, do not mention an alteration or restriction of either access or parking by virtue of Madison County's intended acquisition.

Mississippi Code Annotated Section 43-37-3 sets forth the necessary procedures and prerequisites for the acquisition of real property using public funds. This section requires that every reasonable effort be made to negotiate with the owner of the real property prospectively being acquired. See Miss. Code Ann. § 43-37-3(a), (c)(i). Only the owner of the real property being acquired is entitled to just compensation and, where appropriate, additional compensation may be warranted for damages to the remaining real property. Miss. Code Ann. § 43-37-3(c)(i). Section 43-37-3 makes no provision for just compensation to be paid to others.

It is, therefore, the opinion of this office that Madison County may only pay just compensation to the owner of real property the county acquires, pursuant to Section 43-37-3.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General