McLemore v. Miss. Transp. Comm'n


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Docket Number: 2007-SA-00597-SCT
Linked Case(s): 2007-SA-00597-SCT ; 2007-SA-00597
Supreme Court: Opinion Link
Opinion Date: 06-12-2008
Opinion Author: GRAVES, J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Real property - Taking without compensation - Tort Claims Act - Miss.Const. Art. 3, Section 17
Judge(s) Concurring: DIAZ, P.J., EASLEY, RANDOLPH AND LAMAR, JJ.
Dissenting Author : WALLER, P.J., with separate written opinion.
Dissent Joined By : SMITH, C.J., AND CARLSON, J.
Concurs in Result Only: DICKINSON, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES
Trial Court: Date of Trial Judgment: 03-13-2007
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: The trial court granted summary judgment for MTC.
Case Number: 2004-297 CD
  Consolidated: Consolidated with 2005-CA-02076-SCT Dennis M. McLemore and Wife,Tammy C. McLemore v. Mississippi Transportation Commission; DeSoto Circuit Court; LC Case #: 2004-297CD; Ruling Date: 09/23/2005; Ruling Judge: Robert Chamberlin.
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: DENNIS M. McLEMORE AND WIFE, TAMMY C. McLEMORE




 JOSEPH WALKER SIMS



  
  • Appellant #1 Brief
    		•
    Appellee: MISSISSIPPI TRANSPORTATION COMMISSION RICHARD G. NOBLE, J. ANTHONY WILLIAMS  
    Synopsis provided by:

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    Topic: Real property - Taking without compensation - Tort Claims Act - Miss.Const. Art. 3, Section 17
    Summary of the Facts: Dennis and Tammy McLemore filed suit against the Mississippi Transportation Commission and Talbot Brothers Contracting Co., Inc., alleging a taking without just compensation in violation of the Mississippi and U.S. Constitutions due to flooding and siltation on real property from negligence in the construction of a highway. The trial court granted summary judgment for MTC. The McLemores appeal.
    Summary of Opinion Analysis: The McLemores argue that the trial court’s finding that the case should have been brought under the Mississippi Tort Claims Act contradicts prior case law. Article 3, Section 17 of the Mississippi Constitution provides that private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law. This constitutional provision is only applicable in cases involving property taken for public use. No public policy of the state can be allowed to override the positive guaranties of the Constitution, or divest persons of their title to property, except in the way which the law provides. The action against MTC is for taking without just compensation pursuant to the constitution. Therefore, as a matter of law, the McLemores are entitled to bring their claims.


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