Ralph H. McBroom v. Jackson County, Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2012-CA-01695-SCT

RALPH H. McBROOM AND GERALDINE E.
McBROOM

v.

JACKSON COUNTY, MISSISSIPPI

DATE OF JUDGMENT: 09/18/2012
TRIAL JUDGE: HON. JAYE A. BRADLEY
TRIAL COURT ATTORNEYS: ROBERT E. O’DELL
GARY S. EVANS
ANGELA BROUN BLACKWELL
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: ROBERT E. O’DELL
ATTORNEYS FOR APPELLEE: GARY S. EVANS
ANGELA BROUN BLACKWELL
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: REVERSED AND RENDERED - 10/02/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. In 1972, the Board of Supervisors of Jackson County, Mississippi, approved the final

plat for Spring Lake Subdivision. At that time, the sole means of vehicular access to the

subdivision was Spring Lake Drive East, which crossed Spring Lake Dam. The McBrooms,

who own Spring Lake, three subdivision lots on Spring Lake, and the dam forming the lake

and providing access to the subdivision, contend that Jackson County is obligated to maintain

the dilapidating roadway by virtue of the McBrooms’ dedication of the roadway to public use

and Jackson County’s acceptance of their dedication. The Chancery Court of Jackson County
held that the McBrooms were entitled to no relief. Finding that the Spring Lake Dam and the

roadway over it were dedicated to public use and accepted by Jackson County under the

common law of this State, as evidenced by more than thirty years of continuous use by the

public, we reverse and render judgment for the McBrooms.

FACTS AND PROCEEDINGS BELOW

¶2. Ralph McBroom purchased two lots on the east side of Spring Lake in the Spring

Lake Subdivision in 1972 and a third lot in 1989. He built a home on the lots in 1986 and

moved in with his wife Geraldine in 1987. The residence is situated on the lake to the

immediate left of Spring Lake Drive East, a paved roadway which crosses the entire length

of the Spring Lake Dam traveling east. It was undisputed at trial that, for thirty-four years,

from 1972 until an alternate means of access to the Spring Lake Subdivision was constructed

by Jackson County in 2006, the roadway over Spring Lake Dam provided the only means of

ingress and egress to and from the subdivision: “the garbage man, the mailman, everyone,

UPS man. They all–well, matter of fact, he still comes over that thing. But no one had any

problems with the road,” as Ralph McBroom testified.

¶3. Nevertheless, at the time the subdivision was developed in 1972, the Jackson County

Board of Supervisors approved the final subdivision plat for the Spring Lake Subdivision but

added to it the following unilateral statement: “subject to the condition that the developer

perpetually maintain the entrance route into said subdivision along the dam and subject to

the express condition that Jackson County does not accept said entrance route over the dam

for maintenance.” In 1980, Lake-O-Pines, Inc., conveyed, by warranty deed, property

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including Spring Lake and Spring Lake Dam to Smith Homes, Inc. The warranty deed

contained the following stipulation:

It is expressly understood and agreed that the Grantor herein has the
responsibility of repairing the dam for Spring Lake and to have such repair
completed by August 1, 1980. Upon acceptance of such repair work by the
Board of Water Commissioners of the State of Mississippi, the grantee shall
assume the responsibility of maintenance of said dam at Spring Lake.

Notably, this instrument is silent with respect to the paved roadway atop the dam. After

multiple conveyances of the property since 1980, Merton Larson purchased Spring Lake,

including Spring Lake Dam, in 2003 by quitclaim deed. In 2005, Larson conveyed the lake

and dam to his company, Project Systems Investment Corporation.

¶4. In 2006, the Spring Lake Dam and roadway had deteriorated to such a degree that the

local school buses, which historically had utilized the dam for ingress and egress to and from

the Spring Lake Subdivision, were prohibited by the County School Board from crossing the

dam. That year, the county opened an alternate access into the subdivision, namely Lee

Taylor Road. On March 13, 2006, the McBrooms filed a complaint in the Chancery Court

of Jackson County against Jackson County, Jackson County Planning Commission,

Mississippi Department of Environmental Quality, Merton Larson, and Project Systems

Investment Corporation.

¶5. According to the McBrooms’ complaint, the Mississippi Department of

Environmental Quality (MDEQ) had placed “Larson on notice that the dam is [a] ‘high

hazard dam’ pursuant to the laws of the State of Mississippi and that the same must be either

repaired, or breeched [sic], and the lake drained.” The McBrooms alleged that “Jackson

County, acting through its Board of Supervisors, now refuses to continue its traditional

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maintenance of the road across the dam based upon the belief that the road across the dam

is a private road.” The McBrooms sought an injunction against Jackson County to require

the Jackson County Board of Supervisors “to take immediate steps to restore the dam and to

restore the road that traverses the top of the dam to a safe and reasonable condition for

ingress and egress of the Plaintiffs and property owners in Spring Lake Village [Subdivision]

. . . ” or to require that Larson effect those repairs. The complaint further sought an injunction

to prevent MDEQ and Larson from breaching the dam.

¶6. MDEQ filed a Motion to Dismiss, arguing that the McBrooms had failed to exhaust

administrative remedies. The Jackson County Planning Commission likewise filed a Motion

to Dismiss, asserting that, having “no separate legal existence apart from Jackson County,”

it was “not a legal entity capable of suing and being sued” and therefore not a proper party.

In an order dated May 15, 2006, the chancellor granted the Jackson County Planning

Commission’s Motion to Dismiss and, because the McBrooms agreed to pursue

administrative remedies, continued MDEQ’s Motion to Dismiss. Those administrative

remedies involved the McBrooms’ obtaining a dam-breach analysis and a survey and field

verification report. The results of those reports led to a reclassification by MDEQ of Spring

Lake Dam “as a low-hazard dam.” According to the letter the McBrooms received from

MDEQ, “[o]wners of low-hazard dams are not required to develop and maintain an

Emergency Action Plan (EAP) nor are they required to have their dam inspected by an

engineer.”

¶7. The chancellor then dismissed Merton Larson and Project Systems Investment

Corporation with prejudice because a settlement had been achieved. The record reflects that

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on May 11, 2006, the McBrooms had purchased by quitclaim deed Spring Lake (and the

accompanying dam and roadway) from Project Systems Investment Corporation.

¶8. Following further investigations and the filing of two amended complaints by the

McBrooms, a trial was held in August 2012. The McBrooms’ Second Amended Complaint,

against Jackson County only, sought a declaratory judgment that the Spring Lake Dam and

the roadway over it had been dedicated to public use and accepted by Jackson County and

that the Jackson County Board of Supervisors’ 1972 statement, in the final plat approval, that

the developer maintain the dam, was an act ultra vires, which is to say, beyond its legal

authority. The McBrooms sought, in the alternative, recognition that Jackson County either

was responsible for maintaining the dam and roadway by virtue of a public easement or by

adverse possession. Additionally, they sought compensatory damages and attorney fees. Both

parties submitted Proposed Findings of Fact and Conclusions of Law. On September 18,

2012, the chancellor issued her “Findings of Fact, Conclusions of Law, Ruling and Judgment

of the Court” holding that the McBrooms were not entitled to any of the relief sought.

¶9. Aggrieved, the McBrooms timely appealed the chancellor’s judgment to this Court

on October 4, 2012. They raised the following issues:

1. Whether the trial court erred in not finding that there was an actual, or
“statutory,” dedication and acceptance by Jackson County of the
roadway over Spring Lake dam, including whether Jackson County’s
purported exclusion of maintenance responsibility for Spring Lake
Drive East over Spring Lake dam by resolution was unlawful.

2. Whether the trial court erred in not finding that there was an implied,
or “common law,” dedication and acceptance to Jackson County of the
disputed roadway, so as to create a public easement.

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 3. Whether the trial court erred in not finding the existence of an easement
or right-of-way by prescription in favor of public ownership of the
disputed roadway by Jackson County.

4. Whether the trial court erred in not awarding injunctive relief ordering
Jackson County to provide maintenance to the roadway and substrate
dam.

5. Whether the trial court erred in not awarding the plaintiffs attorney fees
and costs of court.

Finding the McBrooms’ other contentions to be without merit, we address only their first two

assignments of error.

DISCUSSION

Whether the chancellor erroneously concluded that Jackson County was
not obligated to maintain Spring Lake Drive East over Spring Lake Dam
by virtue of statutory and common law dedication and acceptance.

¶10. The McBrooms claim that continuous public use of Spring Lake Drive East, the sole

means of vehicular access to the Spring Lake Subdivision from 1972 through 2006,

evidences intent of the subdivision developer at the time the plat was approved to dedicate

the access roadway to public use, notwithstanding Jackson County’s attempted refusal in the

final plat to accept the roadway. The McBrooms further argue that Jackson County’s

acceptance of the Spring Lake Subdivision final plat with the directive that the “developer

perpetually maintain the entrance route into said subdivision along the dam” constituted an

ultra vires action. Jackson County counters that the roadway over Spring Lake Dam was not

included in the legal description of the plat and that, while the county specifically did accept

the roads included within the plat’s legal description of the subdivision, the roadway over

Spring Lake Dam was not included among those roads accepted. The chancellor found that,

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at the time of trial in 2012, the McBrooms were the fee simple owners of the Spring Lake

Dam and roadway and that, in 1972, Jackson County had not acted ultra vires by

conditioning acceptance of the final plat on the developer’s maintenance of the dam and

roadway.

¶11. The findings of fact of a chancellor “will not be disturbed unless manifestly wrong or

clearly erroneous.” Lowrey v. Lowrey, 25 So. 3d 274, 285 (Miss. 2009) (quoting Sanderson

v. Sanderson, 824 So. 2d 623, 625 (Miss. 2002) (quoting Consol. Pipe & Supply Co. v.

Colter, 735 So. 2d 958, 961 (Miss. 1999))). However, “the Court will not hesitate to reverse

if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous

legal standard.” Lowrey, 25 So. 3d at 625 (quoting Owen v. Owen, 928 So. 2d 156, 160

(Miss. 2006)). “A chancellor’s conclusions of law are reviewed de novo.” Lowrey, 25 So.

3d at 625 (citing Chesney v. Chesney, 910 So. 2d 1057, 1060 (Miss. 2005)).

¶12. This Court has defined “dedication” as “the setting aside of land for public use.”

Nettleton Church of Christ v. Conwill, 707 So. 2d 1075, 1076 (Miss. 1997). Private land

may be dedicated to public use in two ways, pursuant to statute and under the common law.

Conwill, 707 So. 2d at 1076 (citing Dedication 23 Am. Jur. 2d § 3). According to this Court,

“[t]wo distinctions separate the different types of dedication.” Id. “First, the common law

dedication operates by way of an equitable estoppel, whereas a statutory dedication operates

by way of grant. Second, a common law dedication usually creates a mere easement, whereas

in a statutory dedication the fee of the property is in the public.” Id.

A. Statutory Dedication

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¶13. Mississippi Code Section 21-19-63 (Rev. 2007) sets forth a mechanism by which land

may be dedicated to public use by plat:

In all cases where a map or plat of the subdivision is submitted to the
governing authorities of a municipality, and is by them approved, all streets,
roads, alleys and other public ways set forth and shown on said map or plat
shall be thereby dedicated to the public use, and shall not be used otherwise.
. . .”

(Emphasis added.) We agree with the McBrooms that the dam appears on the final plat map

of the Spring Lake Subdivision accepted by the Jackson County Board of Supervisors in

1972. But we find that Section 21-19-63 applies by its plain language to municipalities, not

to counties. As we previously have held, “[t]he courts have no right to add anything to or take

anything from a statute, where the language is plain and unambiguous. To do so would be

intrenching upon the power of the Legislature.” Wallace v. Town of Raleigh, 815 So. 2d

1203, 1208 (Miss. 2002) (quoting Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56

So. 466, 490 (1911)).

¶14. Nevertheless, the McBrooms maintain that Mississippi Code Section 17-1-23(3) (Rev.

2012) provides a counterpart to Section 23-19-62 applicable to counties. While we agree that

the plain language of other subsections of Section 17-1-23 applies to counties, the

McBrooms’ interpretation of Section 17-1-23(3) again ignores the plain language of the

statute. In pertinent part, Section 17-1-23(3), which is virtually identical to Section 21-19-63,

provides:

In all cases where a map or plat of the subdivision is submitted to the
governing authorities of a municipality, and is by them approved, all streets,
roads, alleys and other public ways set forth and shown on said map or plat
shall be thereby dedicated to the public use, and shall not be used otherwise .
...

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(Emphasis added.) Subsections 1, 2, and 4 of Section 17-1-23 reference the “governing

authority of each municipality or county.” (Emphasis added.) We cannot agree with the

McBrooms that Section 17-1-23(3) applies to counties, notwithstanding the language of other

subsections. See Miss. Code Ann. § 17-1-1(a) (Rev. 2012) (“‘Municipality’ means any

incorporated city, town or village within the state.”); COR Developments, LLC v. College

Hill Heights Homeowners, LLC, 973 So. 2d 273, 287 (Miss. Ct. App. 2008) (holding that

Section 17-1-23(3) “does not govern in the present case because it applies only to

municipalities, not counties.”)

¶15. Section 17-1-23(2) by its plain language applies to counties. It provides:

The board of supervisors of any county may order that no plat of a subdivision
shall be recorded until it has been approved by the board of supervisors, and
the board of supervisors shall have power to require the installation of utilities
and laying out of streets in subdivisions or to accept performance bonds in lieu
thereof . . . .

The McBrooms argue that Section 17-1-23(2) is an enabling statute, providing a “legislative

grant of authority to the board of supervisors” either to “(1) ‘require the installation of

utilities and laying out of streets in subdivisions’ or, (2) ‘to accept performance bonds in lieu

thereof.’” We find the McBrooms’ contentions to be without merit. Section 17-1-23(2) is,

by its plain language, discretionary. First, “[a] basic tenet of statutory construction is that

‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So.

3d 851, 854 (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115

(Miss. 2003)). The statute gives discretion to the board of supervisors to withhold recordation

of a plat of a subdivision until such time as the board approves it. Second, the statute states

that the board “shall have power to require the installation of utilities and laying out of streets

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in subdivisions or to accept performance bonds in lieu thereof . . . .” Miss. Code Ann. § 17-1-

23(2) (emphasis added). We find that the language “shall have power to” does not mandate

action by the county board of supervisors, but merely vests the board with the authority to

act.

¶16. Section 900.1 of the Jackson County Subdivision Regulations from 1968, entitled

“Performance Bond,” provides the following:

In those instances where the Planning Commission determines that it is not
necessary or desirable that all required streets and other improvements be
completed prior to approval of the Final Plat, a performance bond will be
accepted in lieu of completion of the construction as set forth in Article V
(Required Improvements) . . . .

Equating “completion” with “acceptance,” the McBrooms argue in their reply brief, without

citing any authority, that “[w]here there is, putatively, no acceptance of a street for

maintenance by the County, a performance bond is required by the ordinance (as in

accordance with the enabling statute) in order to secure future performance by the

developer.” Thus, according to the McBrooms, Jackson County’s delegation of the obligation

to maintain the Spring Lake Dam to the developer, in the absence of a performance bond

securing future maintenance, constituted an ultra vires act by the county. We find the

McBrooms’ argument to be unsupported.

¶17. The ordinance requires a performance bond in lieu of construction “[i]n those

instances where the Planning Commission determines that it is not necessary or desirable that

all required streets and other improvements be completed prior to approval of the Final Plat.”

Jackson County, Miss., Subdivision Regulation 900.1 (1968). The scenario contemplated in

Subdivision Regulation 900.1 remains wholly distinguishable from the facts before the Court

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in the instant case. Here, the McBrooms presented no evidence that a determination was

made by the Planning Commission that a performance bond was required in lieu of

completion of the roadway over the Spring Lake Dam prior to approval of the final plat. The

Jackson County Board of Supervisors conditioned the approval of the final plat on the

continued maintenance of the dam and roadway by the developer of the Spring Lake

subdivision. Thus, on the basis of dedication and acceptance under our statutes, we cannot

say the chancellor erred in holding that the McBrooms were the fee simple owners of the

Spring Lake Dam and the roadway over it. See Conwill, 707 So. 2d at 1076 (“[I]n a statutory

dedication the fee of the property is in the public.”)

¶18. For these reasons, the Mississippi statutes pertaining to dedication of private land to

public use do not support the McBrooms’ position that Jackson County was obligated to

maintain Spring Lake Dam and the roadway over it.

B. Common Law Dedication and Acceptance

¶19. The statutory analysis is not dispositive, however. The common law of dedication and

acceptance, which “operates by way of an equitable estoppel,” also must be considered.

Conwill, 707 So. 2d at 1076. Instead of a creating a fee interest in the public, “a common law

dedication usually creates a mere easement.” Id. We find that, while statutory dedication and

acceptance are limited by plain statutory language to municipalities, the common law of

dedication and acceptance can be applied more broadly to actions by counties. See Hearn

v. Morrow, 272 So. 2d 645 (Miss. 1973); Armstrong v. Itawamba County, 195 Miss. 802,

16 So. 2d 752 (1944); Kinnare v. Gregory, 55 Miss. 612, 1878 WL 4511 (1878). According

to this Court:

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 It is well-settled law in Mississippi that land sold according to a plat or map
will dedicate the streets, alleys, squares, and other public ways marked on the
map or plat to the public for public use. See, e.g., Luter v. Crawford, 230 Miss.
81, 92 So. 2d 348 (1957); Skrmetta v. Moore, 227 Miss. 119, 86 So. 2d 46
(1956); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927);
Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958
(1904); City of Vicksburg v. Marshall, 59 Miss. 563 (1882); Briel v. Natchez,
48 Miss. 423 (1873); Vick and Rappleye v. Mayor and Aldermen of
Vicksburg, 1 How. 379 (Miss. 1837).

Conwill, 707 So. 2d at 1076. This rule has roots in the early jurisprudence of this state:

The rule has obtained general sanction, that, if the owner of urban property has
laid it off into lots intersected by streets and sells the same with reference
thereto, or with reference to a map or plat dividing it into squares, streets and
alleys, such action will amount to a dedication of the streets and alleys to the
public. Irwin v. Lewis, 9 How. (U.S.) 10; Rowan v. Portland, 8 B. Monroe,
232; Vicks v. Vicksburg, 1 How. 379.

Briel v. City of Natchez, 48 Miss. 423, 436, 1873 WL 4128 (1873). Even earlier than the 1873

Briel case, this Court stated that “when the owners of urban property have laid it out into lots

with streets and avenues intersecting the same, and have sold lots with reference to such plat,

it is too late for them to resume a general and unlimited control over the property, thus

dedicated to the public.” Vick et al. v. The Mayor and Aldermen of Vicksburg, 1 How. 379,

2 Miss. 379, 432 (1837).

¶20. As to dedication and acceptance of roadways, this Court has opined that the landowner:

. . . may grant to certain persons or to the public the easement of a highway over
his land; not that the grant is technically by deed, but he may do those acts
which unequivocally manifest an intention that the community shall have and
enjoy a highway on his private property. When the public accepts his offer
there has been consummated that which is of equal import with a contract or
grant, and there has been accomplished what is expressed by the term
“dedication.”

The acceptance may be shown in two ways: first, by the formal act of the
proper authority competent to speak and act for the public, or it may be implied

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 from circumstances such as user,1 etc. The People v. Jones, 7 Mich. 176,
Fulton v. Mehronfield, 8 Ohio St. 440, Briel v. City of Natchez, 48 Miss. 436.

Kinnare, 55 Miss. at 620-21.

¶21. We agree with the McBrooms that the Jackson County Board of Supervisors approved

the final plat for the Spring Lake Subdivision in 1972 and that the final plat referenced the

dam. The 1972 plat map approved by the Board not only references “DAM,” but also, the

dam itself connects with Spring Lake Drive East. It is true that the Board sought to condition

its approval of the Spring Lake Subdivision on the developer’s perpetual maintenance of “the

entrance route into said subdivision along the dam” and expressly stated that “Jackson County

does not accept said entrance route over the dam for maintenance.” But this disclaimer does

not comport with the requirement of Section 404.4 of the Jackson County Subdivision

Regulations of 1968 that “the subdividing of the land shall be such as to provide, by means

of a public street, each lot with satisfactory access to an existing public street.” And the

parties do not dispute that the roadway over the Spring Lake Dam was the sole means of

access into the subdivision from 1972 until Lee Taylor Road was opened in 2006.

¶22. Because the dam provided the sole means of ingress and egress to and from the

subdivision at the time of its approval, we find that the Board acted contrary to its own

Subdivision Regulations in 1972 by attempting to disclaim maintenance of the roadway:

Jackson County approved the plat with public streets therein and was required by its own

regulations to provide a public means of access. The fact that an alternative roadway was

1
The term “user” refers to “[t]he actual exercise or enjoyment of any right, property,
drugs, franchise, etc.” Black’s Law Dictionary 1383 (5th ed. 1979).

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constructed in 2006, thirty-four years after the Board approved the final plat of the Spring

Lake Subdivision, is of no moment to this Court’s consideration of the 1972 dedication to the

public of the Spring Lake Dam.

¶23. With regard to the Subdivision Regulations, the chancellor, however, found that

“Section 400.2 does not appear to require strict compliance.” Section 400.2 requires the

following:

The arrangement of streets in a subdivision shall either:

a. Provide for the continuation of existing principal streets in surrounding
areas; or

b. conform to a plan for area development approved or adopted by the
Planning Commission to meet a particular situation where topographical
or other conditions make continuance or conformance to existing
principal streets impracticable.

The chancellor then cited Section 700.1 of the Subdivision Regulations, governing “Hardship

and Modifications”:

[w]here the Planning Commission finds that extraordinary hardships may result
from strict compliance with these regulations, it may vary the regulations so
that substantial justice may be done and the public interest secured, provided
that such variance will not have the effect of nullifying the intent and purpose
of the regulations.”

The chancellor concluded that “[t]he County was clearly vested with the power to vary its

acceptance of subdivision design regulations.”

¶24. We do not agree with the chancellor’s determination. First, while “Section 400.2 does

not appear to require strict compliance,” it relaxes compliance to allow conformity to an

adopted plan only “where topographical or other conditions make continuance or

conformance to existing principal streets impracticable.” Jackson County, Miss., Subdivision

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Regulation 400.2(b) (1968). No conditions, topographical or otherwise, were cited by the

Board to allow it to require the developer to maintain the only roadway providing a means of

ingress and egress to and from the Spring Lake Subdivision. Otherwise, Section 400.2

mandates “continuation of existing principal streets in a surrounding area,” the requirement

which the roadway over Spring Lake Dam appears to satisfy as it provides a continuation of

Spring Lake Drive East. Jackson County, Miss., Subdivision Regulation 400.2(a) (1968).

Moreover, with regard to Section 700.1, the Board never made a finding, at the time of

approval of the final plat, that strict compliance with Section 404.4 (requiring access to a

public street) would create an “extraordinary hardship” such that a variance from the

Subdivision Regulations was warranted. The chancellor’s holding that the 1968 Subdivision

Regulations permitted a variance under these circumstances was erroneous.

¶25. Having ascertained that a common law dedication to public use occurred, we turn to

a consideration of whether there was an acceptance by the county. According to this Court,

“acceptance may be shown in two ways: first, by the formal act of the proper authority

competent to speak and act for the public, or it may be implied from circumstances, such as

user, etc.” Kinnare, 55 Miss. at 621 (citations omitted).

¶26. The McBrooms urge that Hurricane Frederic, in September 1979, exacted significant

damage on Spring Lake Dam and the roadway over it. They cite a 1979 letter, dispatched in

the aftermath of Hurricane Frederic, from Jon Bennett, Jackson County Planning Commission

Director, to Charles Moore, the Governor’s authorized representative of the Mississippi Civil

Defense Council. Copies of the letter were sent both to E.A. Khayat, president of the Jackson

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County Board of Supervisors, and Mel Schneider of the Federal Emergency Management

Agency (FEMA), Jackson County. The letter said:

This letter has reference to the spillway at Spring Lake Village in Jackson
County which was damaged by Hurricane Frederick [sic].

Please accept this letter as a request for a Damage Survey Report on this
spillway, sometimes called the Lake O’ Pines dam [a/k/a Spring Lake Dam].
Even though this appears to be private property, it is a public way for use by
the general public including the residents and future residences [sic] in a 48
lot subdivision, in addition to fishermen in the county.

Jackson County did not accept maintenance of this spillway as part of the
Spring Lake Village Subdivision, but the fact of the matter is that once the
developer sells the lots, there is not one of responsibility to maintain the
spillway. Therefore, Jackson County had no choice but to maintain this public
way and has done so since it was constructed in 1973.

I hope you will be able to assist us in this matter.

(Emphasis added.)

¶27. As the chancellor noted, Michelle Coats, director of the Jackson County Planning

Commission at the time of the present proceedings in 2012, testified that “[a] Damage Survey

Report was what was previously used by FEMA, or by the county, to request funding from

FEMA to make repairs to infrastructure damaged in a natural disaster or a declared natural

disaster,” for “reimbursement for repairs made to damaged infrastructure.” The chancellor

found that no evidence was presented by the McBrooms that Jackson County repaired the dam

in the aftermath of Hurricane Frederic or received funds from FEMA as reimbursement for

having done so. But, even without documentation of the actual performance of such work, the

Bennett letter, quoted above, appeared on official Jackson County Planning Commission

letterhead and was drafted and sent in an effort to obtain funds from FEMA, either to restore

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the dam or to receive reimbursement for having done so. The letter acknowledged the public

use of the roadway, both for the residents of the subdivision and for local fishermen and,

moreover, recognized that Jackson County had maintained the roadway since its construction.

¶28. Reasonable minds may differ on the question of whether the Bennett letter rises to the

level of the express acceptance contemplated by Kinnare, 55 Miss. at 621 (citations omitted),

“by the formal act of the proper authority competent to speak and act for the public,” since

a county planning commission is by statute an instrumentality of the county board of

supervisors. Miss. Code Ann. § 17-1-11 (Rev. 2012). Nevertheless, Mississippi Code Section

17-1-11(3) (Rev. 2012) vests the local planning commission with the authority, “in the

performance of its duties,” to “cooperate with, contract with, or accept funds from federal,

state or local agencies or private individuals or corporations and may expend such funds . .

. .” An official letter from the director of the Jackson County Planning Commission to a

representative of the Governor of Mississippi, copied to the president of the Jackson County

Board of Supervisors and to a FEMA official, evidences a representation by Jackson County

both to federal and state authorities respecting the county’s need for funds either to repair the

damage to Spring Lake Dam or to reimburse the county for having done so. This cannot be

seen as anything other than an overture by local government to the federal government for

public monies to be used for public purposes, not private purposes.

¶29. Further, this Court has held that acceptance can be manifested by failure to assess

taxes on a street. City of Jackson v. Laird, 99 Miss. 476, 55 So. 41, 42 (1911). In Laird, the

City of Jackson assessed blocks and lots in the “Split addition” area for taxation, but it did not

assess the streets and avenues. Id. One particular street, “Convent [A]venue . . . has not been

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graded nor worked by the city, but has been used to a limited extent by the public,” though

other streets and avenues in the “Split addition” area had been “worked and kept in repair by

the municipal authorities and used by the public.” Id. According to the Court, “[t]hese facts

constitute an acceptance by the city of the dedication to public use of the streets and avenues

of ‘Split addition,’ including those streets and avenues which have not been graded and kept

in repair.” Id. (citations omitted). Here, Mary Ann Fontenot, from the Mapping Department

of the Jackson County Tax Assessor’s Office, testified at trial that the roadway over Spring

Lake Dam was “[n]ot being taxed” and that it had not been taxed since she began working

with the Mapping Department in 1993. Fontenot further testified that, although she was not

employed with Jackson County in 1972, the maps she was examining dated back to 1972.

Thus, under Laird, the protracted failure of Jackson County to assess real estate taxes to the

Spring Lake Dam demonstrates implied acceptance by the county of its dedication to public

use.

¶30. Jackson County emphasized Mississippi Code Section 65-7-4(1) (Rev. 2012), which

requires counties to “prepare and adopt an official map designating and delineating all public

roads on the county road system.” Subsection 5 of Section 65-7-4 provides that “[t]he county

road system register shall have priority in case of conflict between the register and the official

map.” Citing an opinion of the Mississippi Attorney General, Jackson County argued that this

provision clarified which roads were county roads and which roads were not county road for

the purpose of maintenance. The chancellor agreed, finding that, “[a]lthough the Court finds

the absence of taxes and inclusion of the roadway on the county road map index relevant,”

the statute “clearly grants the county road register priority.” But the issue is not a “conflict

18
between the register and the official map,” to which Section 65-7-4(5) applies. What is at

issue is whether the failure of Jackson County to tax the roadway and the Spring Lake Dam

for more than three decades supports a finding of an implied acceptance under the common

law of this State.2 We find that it does. See Richardson v. Warwick, 8 Miss. 131, 137 (1843)

(“An act of the legislature, in derogation of the common law, is strictly construed, and is

carried no farther than the words of the act carry it, and the remedy is always within

legislative control.”)

¶31. Likewise, Jackson County recites that “it is settled in our state that mere user by the

public, without more, is not sufficient to constitute an implied acceptance.” City of Columbus

v. Payne, 155 Miss. 170, 124 So. 269 (1929). Jackson County contests the sufficiency of

evidence presented by the McBrooms to support a finding of Jackson County’s acceptance

of the dam’s dedication to public use. But, not only did the public use the roadway over

Spring Lake Dam for more than thirty years as the sole means of ingress and egress in and out

of the Spring Lake Subdivision; the county also represented to FEMA that it had accepted an

obligation to maintain the property. Further, it is clear that Jackson County declined to assess

taxes against the property since at least 1972. All support a finding that Jackson County

accepted Spring Lake Dam and its roadway under the common law of this State.

¶32. Furthermore, with regard to implied acceptance, this Court clarified that “[c]ontinued

user when taken in connection with the working of the road for nearly twenty years at public

2
Further, Section 65-7-4, which went into effect on July 1, 1998, required adoption
of an official map “[o]n or before July 1, 2000.” The statute would have no relevance to an
analysis of common law dedication and acceptance of a purported county road constructed
in 1972.

19
expense should be deemed to have been a sufficient acceptance.” Armstrong v. Itawamba

County, 195 Miss. 802, 16 So. 2d 752, 757 (1944). In Armstrong, this Court sustained an

injunction against the Armstrongs, who had erected a gate in an effort to obstruct a road that

Itawamba County claimed to have been dedicated to public use and had accepted. Id. at 758.

The Court noted that “it does not appear that such traveled route has ever been designated as

a public road by an order of the board of supervisors, so far as may affirmatively appear from

the minutes of the board,” but that the evidence showed “that the roadway in question was

used as a neighborhood or settlement road and worked by the local citizens of the community,

when worked at all, for many years prior to 1924, and thereafter at public expense

continuously until the year 1941, when such obstructions were placed therein . . . .” Id. at 753.

¶33. Likewise, in the 1973 case of Hearn v. Morrow, this Court held that a private road was

dedicated to public use and accepted by the Rankin County Board of Supervisors where

the roadway has been used by school buses and the lot owners; the road has
been maintained by Rankin County by the installation of 13 culverts on the
road; north of the roadway water and electric lines have been installed and
south of the roadway a telephone line has been installed for the use of the
property owners, all of the utility lines being within the 50 foot right-of-way
designated by the plat; at the time of the trial two homes and five trailers were
located on lots sold by the appellees; the lot owners, other than appellants, were
using the road with no restrictions; an additional 228 acres was to be developed
utilizing such road and from a totality of the circumstances shown by the proof
in this case appellees manifested an intention for the public to have and enjoy
a highway on their property.

Hearn v. Morrow, 272 So. 2d 645, 647 (Miss. 1973) (emphasis added). The Court held that

“a public road was established by implication from the circumstances shown by the evidence

in this cause . . . .” Id.

20
¶34. Here, Ralph McBroom testified without contradiction that the roadway crossing Spring

Lake Dam was utilized by members of the public as the sole entry to the subdivision, at least

until the 2006 construction of the Lee Taylor Road: “the garbage man, the mailman, everyone,

UPS man. They all–well, matter of fact, he still comes over that thing. But no one had any

problems with the road.” He further testified that the Spring Lake Dam “was mowed. It was

kept clean. And I assumed someone did it and I assume it was the county.” McBroom then

stated, “I saw one person that was maintaining it one time and he was on a Jackson County

truck, pulling one of those lawn mowers and he was mowing the grass. But that’s the only one

that I can swear to that I ever saw mowing the grass. But nevertheless the grass was mowed

by someone.” However, Butch Loper, the present assistant road manager for Jackson County

and previous road superintendent for the Jackson County Central Road Department, testified

contrarily that he gave his road crews specific instructions not to mow the dam. The road

crews “were to stop at each end of the dam.” Loper testified that he utilized the dam for

ingress and egress to and from the Spring Lake Subdivision, but that “county end of

maintenance” road signs were on the dam at least since the early 1990s. But Loper also

testified that there were county road signs and a “Slow, Children at Play” sign that “would

have been put up by the county.”

¶35. Geraldine McBroom testified that, from the time she and Ralph moved into their new

home in 1987, she gardened a great deal outside and, like her husband, saw Jackson County

personnel in Jackson County vehicles maintaining the dam. She stated that she saw Jackson

County personnel cutting the grass “[w]ith a mower, with a side mower, and may have, on

occasion, come with just the straight mower. I never had to really worry about the–outside our

21
property because they kept it mowed.” She testified further that the county once filled in pot

holes along the roadway over Spring Lake Dam. Joe Neal, the current Jackson County road

manager and former Jackson County West Division road superintendent, testified also that,

some time between 2001 and 2002, “[o]ne of our crews accidentally patched some potholes”

in the roadway over Spring Lake Dam. With regard to the county’s placement of “county end

of maintenance” signs, Neal testified that “[t]he only signs I saw were some that were posted

up, I don’t know, maybe a year ago that said the county didn’t maintain this section of the

roadway.”

¶36. That Jackson County regularly maintained the roadway over Spring Lake Dam was

contested at the bench trial. The chancellor held “the McBrooms’ testimony regarding isolated

incidents of maintenance by the County to be insufficient to prove implied acceptance by the

County.” The evidence presented by the McBrooms that Jackson County at least once had

mowed the Spring Lake Dam, had erected county signs along the dam’s roadway, and once

had filled in a pothole on the roadway, alone, is too attenuated to warrant a finding of implied

acceptance by the county. But that evidence, viewed in conjunction with the Jackson County

Planning Commission’s letter to FEMA in which it acknowledged maintenance responsibility

for the dam and its roadway and the testimony that the dam never was taxed by the county,

preponderate in favor of a finding of an implied acceptance by the county under the common

law of this State. All essential public services, including mail services, fire, police, and anyone

else desirous of entering or departing the Spring Lake Subdivision, were required for more

than thirty years to use the roadway over Spring Lake Dam. Further, roads approved,

accepted, and maintained by the county within the Spring Lake Subdivision were accessed by

22
county vehicles and work crews via the roadway over Spring Lake Dam. 3 Considering the

totality of the circumstances, we find that “a public road was established by implication from

the circumstances shown by the evidence in this cause . . . .” Hearn, 272 So. 2d at 647.

¶37. We agree with the dissent that “the chancellor had all of this evidence in front of her,

as well as the benefit of observing the parties during the trial.” (Emphasis in original.) But in

Skates v. Bryant, the only case upon which the dissent relies to support its position, this Court

held that the chancellor committed no manifest error in finding that no common law

dedication had occurred, since “there was absolutely no evidence that George Bryant intended

to donate the road to public use or to benefit the public in any way. The road was intended

to be used by the residents of the trailer park, a restrictive group of people, not the public in

general.” Skates v. Bryant, 863 So. 2d 907, 911 (Miss. 2003) (emphasis added). Here, ample

evidence was adduced that the land had been both dedicated to public use and accepted by

Jackson County, but the chancellor’s analysis did not take into account the common law of

dedication and acceptance.

¶38. We do not fault the chancellor for her findings of fact; but the application of the

common law of dedication and acceptance constitutes a question of law, subject to de novo

review by this Court. See Lowrey, 25 So. 3d at 625 (citing Chesney, 910 So. 2d at 1060). The

chancellor held that “the McBrooms’ testimony regarding isolated incidents of maintenance

by the County” was “insufficient to prove implied acceptance by the County,” since “Miss.

3
Jackson County’s brief states that “while the county accepted the roads within the
legal description of the subdivision, when they approved the plat, they did not accept the
roadway over the dam.”

23
Code Ann. § 65-7-4 mandates that the county road register shall have priority.” With utmost

respect to the learned chancellor, that analysis does not appear to have taken into account the

common law of dedication and acceptance. As we stated above, Section 65-7-4 applies to a

“conflict between the register and the official map,” a scenario inapposite to the present one.

The chancellor thus erred as a matter of law.

¶39. While the chancellor correctly concluded that Jackson County was not obligated to

maintain the roadway over Spring Lake Dam by virtue of the dedication statutes, the

chancellor erred by not finding that Jackson County was so obligated under the common law

of dedication and acceptance.

CONCLUSION

¶40. Spring Lake Dam and the roadway over it were dedicated to public use and accepted

by Jackson County in accordance with the common law of this state. Finding that the

Chancery Court of Jackson County erred in not so finding, we reverse the trial court’s

judgment and render judgment for the McBrooms.

¶41. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., CHANDLER, KING AND COLEMAN, JJ.,
CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY RANDOLPH, P.J. PIERCE, J., NOT PARTICIPATING.

LAMAR, JUSTICE, DISSENTING:

¶42. This Court will not reverse a chancellor’s decision unless her findings were “manifestly

wrong or clearly erroneous.” Skates v. Bryant, 863 So. 2d 907, 911 (Miss. 2003) (emphasis

added). And “[t]his standard [applies] even when conflicting evidence was presented by the

parties.” Id. (emphasis added).

24
¶43. The chancellor’s findings of fact and conclusions of law are, in my view, very thorough

and supported by law. The majority spends nine pages of its opinion eking out evidence (on

behalf of the McBrooms) that purportedly shows that Jackson County “accepted” their

dedication of their land. Among the evidence relied on by the majority is a letter from 1979

that states that “Jackson county did not accept maintenance of this spillway as part of the

Spring Lake Village Subdivision . . . .” Yet, despite this clear language, the majority takes

the phrase “Jackson County had no choice but to maintain this public way” as evidence that

Jackson County affirmatively had accepted the McBrooms’ dedication. The majority also

places much emphasis on Jackson County’s decision not to tax the roadway, finding that this

decision “demonstrated implied acceptance.”

¶44. But the problem with this analysis is that the chancellor had all of this evidence in front

of her, as well as the benefit of observing the parties during the trial. She issued a well-

reasoned opinion supported by the law, finding it “clear that Jackson County has never

formally recognized the roadway over the dam as a county road or public easement.” This

Court is not to reverse her unless she committed manifest error, even in the face of conflicting

evidence. In my view, the majority has taken great pains to highlight all of the evidence

favorable to the McBrooms and ultimately substituted its own judgment for that of the

chancellor in its finding of “implied acceptance.”

¶45. I must also address the majority’s statement that “the chancellor’s analysis did not take

into account the common law of dedication and acceptance.” I frankly do not know how the

majority can reach the conclusion that the chancellor did not “take into account” common-

25
law acceptance.4 At the conclusion of the trial, the chancellor requested that both parties

submit proposed findings of fact and conclusions of law. The McBrooms’ proposed findings

of fact and conclusions of law included two pages detailing the doctrine of common-law

dedication and acceptance, along with the evidence they thought supported its application in

this case. I do not see how the majority can so easily conclude that the chancellor did not

consider this argument.

¶46. On the contrary, the chancellor’s own findings indicate that she did consider it. In her

Judgment, the chancellor noted that “[t]he Mississippi Supreme court has stated that a public

road may be created by prescription, dedication or pursuant to statutory provisions.”

(Emphasis added.) And later on in her Judgment, the chancellor specifically stated that “[t]he

Court has already found that Jackson County never formally or impliedly accepted the

roadway over the dam.” (Emphasis added.) It is clear to me that the chancellor considered

the common-law dedication theory and rejected it.

¶47. And finally, if the majority’s sole reason for reversal here is the chancellor’s failure

to “take into account” common-law acceptance (as quoted above), then the proper remedy is

to reverse and remand with orders for the chancellor to do so, instead of making findings of

fact based on disputed evidence and rendering judgment in favor of the McBrooms. For these

reasons, I respectfully dissent.

RANDOLPH, P.J., JOINS THIS OPINION.

4
To be clear, everyone agrees that the McBrooms dedicated their property to public
use and that the only real issue is whether Jackson County accepted it.

26