Can a Mississippi county clean and repair a flooding creek that runs across private property?

Plain-English summary

A creek located on private property runs through the City of Starkville into Oktibbeha County, and it has been flooding badly enough to threaten city and county roads. The Board of Supervisors wanted to know whether it could come onto the private property and clear the creek to head off more damage. The county attorney asked the AG.

The AG said yes, the county may clear the creek, but only after meeting all the requirements of Miss. Code Ann. § 19-5-92.1. That statute does two distinct things. Subsection (1) gives the Board general authority to spend money on labor, materials, and supplies to clean drainage ditches, creeks, channels, or conduits, natural or man-made, when the Board determines the work will promote the health, comfort, and convenience of county inhabitants. That requires a finding spread upon the minutes.

Subsection (2) adds extra requirements when the work happens on private property:
- A finding entered on the minutes that the work or expense is necessary to promote the public health, safety, and welfare of county citizens
- Written notice to all affected landowners, with a reasonable period to object
- No written objections received within that period
- Construction of a culvert or bridge at county expense, at an appropriate location, to give the landowner the same ingress and egress they had before the work, unless the county and the landowner agree otherwise in writing

If any landowner objects in writing, the county cannot proceed under § 19-5-92.1. That is the practical limit on this authority: a single objecting affected landowner stops the work.

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.

Background and statutory framework

County boards of supervisors in Mississippi have only the powers granted to them by statute. Drainage and flood control on private property is a sensitive area because it crosses the line into landowner rights. Section 19-5-92.1 is the legislature's careful answer: it grants counties enough authority to address drainage problems that affect public roads or public health, while protecting individual property owners through notice, objection, and access requirements.

Subsection (1) sets out the general authority. The Board may incur costs and pay necessary expenses for labor, materials, and supplies to clean or clear drainage ditches, creeks, or channels or conduits, natural or man-made, whenever the Board determines that such action will promote the health, comfort, and convenience of the inhabitants of the county. The "health, comfort, and convenience" finding has to be made and recorded.

Subsection (2) adds private-property-specific requirements. Each is independent:

(a) Make a finding, on the minutes, that the work or expense is necessary to promote public health, safety, and welfare.

(b) Give written notice to all affected landowners with a reasonable period to object. The statute does not specify what counts as "reasonable"; that is a fact-specific judgment for the Board.

(c) Receive no written objection within the objection period from any owner of property that will be affected. If any affected owner objects in writing, the county cannot proceed.

(d) Construct or install a culvert or bridge at county expense to provide the landowner ingress and egress to all property to which they had access before the work. The landowner and the county can waive this in writing.

The opinion cites MS AG Op., Neyman (June 13, 2012) for the rule that this statute applies whenever drainage work happens on private property. The pattern is consistent across drainage opinions: authority exists, but procedural prerequisites must be met.

Common questions

Q: What kind of "creek" qualifies?
A: Section 19-5-92.1 covers natural and man-made drainage ditches, creeks, channels, and conduits. The statute is broad enough to cover most surface-water features that drain rural and small-city land.

Q: How much notice does the county have to give?
A: The statute says "for such period of time as is reasonable to allow such owners to express any objections." The Board sets the period in light of the circumstances. A short notice period in a flood emergency may be defensible; a routine maintenance project would benefit from a longer one.

Q: What if a single landowner objects?
A: Subsection (2)(c) requires that the county "[n]ot receive written objection to the work by any owners of property that will be affected by the work within the period of time allowed to express objections." A single written objection from an affected owner is enough to stop a § 19-5-92.1 project. The county would need a different statutory authority (eminent domain, drainage district powers, or court-ordered relief) to proceed over an objection.

Q: Does the county have to build a culvert or bridge?
A: Yes, unless the landowner and the county agree otherwise in writing. The point is to ensure the work does not landlock the owner or cut off access to part of their property. A written waiver is allowed but should be carefully drafted.

Q: Can the county recover the cost from the landowner?
A: The statute treats the work as a county expense. Section 19-5-92.1 contemplates the county paying for labor, materials, supplies, and the access culvert or bridge.

Q: Does the county have to do this work, or is it discretionary?
A: Discretionary. The opinion uses permissive language: the Board "may, in its discretion, take the necessary corrective action."

What this means for you

For county supervisors: Before authorizing creek-clearing on private property, walk through § 19-5-92.1's checklist. Make both findings on your minutes. Send written notice to every affected owner. Pause for objections. Plan and budget the access culvert. Skipping any step risks the work being challenged as ultra vires.

For county attorneys: Draft a templated resolution and notice form for § 19-5-92.1 projects. Identify "affected" landowners not just those whose creek is being worked on, but any owner whose access or drainage will change. Document everything for the record.

For affected landowners: If you receive notice the county wants to clean or clear a creek on your land, you have the right to object in writing. An objection submitted within the notice period blocks the project under § 19-5-92.1. Read the proposal carefully; if it includes a useful access culvert and addresses your concerns, signing on may be in your interest. If not, your objection has teeth.

For county road managers and engineers: Roads getting flooded by a creek on private land is a common rural problem. Section 19-5-92.1 is the cleanest vehicle for getting at it without resorting to drainage district formation or condemnation. Coordinate early with the supervisors' office and the county attorney on the procedural steps.

Citations and references

Statutes:
- Miss. Code Ann. § 19-5-92.1 (county authority to clean drainage ditches, creeks, channels, conduits)
- Subsection (1): general authority and "health, comfort, and convenience" finding
- Subsection (2): requirements for work on private property

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/08/L.RobersonII_July-31-2020-County-Responsibilities-for-River-and-Creek-Repairs.pdf

Original opinion text

July 31, 2020

Loyd B. "Rob" Roberson, II, Esq.
Attorney, Oktibbeha County Board of Supervisors
Post Office Box 80265
Starkville, Mississippi 39759

Re: County Responsibilities for River and Creek Repairs

Dear Mr. Roberson:

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

Question Presented

Does the Oktibbeha County Board of Supervisors have the right to clean out and fix levies on a creek that runs through private property?

Background Facts

A creek, located on private property, runs through the City of Starkville into Oktibbeha County. The creek is having major flooding issues; thus, the County Board of Supervisors is researching ways by which to fix the flooding in order to prevent damage to property and to both city and county roads.

Brief Response

Upon a determination that the health, comfort and convenience of the inhabitants of Oktibbeha County will be promoted, the Board of Supervisors may provide the labor, materials and supplies to clean or clear the creek on private property so as to prevent additional flooding. However, the Board of Supervisors must satisfy the prerequisites of Miss. Code Ann. Section 19-5-92.1(2).

Applicable Law and Discussion

Miss. Code Ann. Section 19-5-92.1(1) provides, in relevant part, that counties may incur costs and pay necessary expenses for labor, materials and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made, whenever the Board determines that such action will promote the health, comfort and convenience of the inhabitants of the county.

If the work performed pursuant to Section 19-5-92.1(1) takes place on private property, the Board of Supervisors must further satisfy the provisions of Miss. Code Ann. Section 19-5-92.1(2), which states as follows:

(a) Make a finding, as evidenced by entry upon its minutes, that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county;

(b) Give notice, in writing, to all owners of property that will be affected by the work for such period of time as is reasonable to allow such owners to express any objections;

(c) Not receive written objection to the work by any owners of property that will be affected by the work within the period of time allowed to express objections; and

(d) Unless otherwise agreed, in writing, by the county and the landowner, construct or install a culvert or bridge, at the county's expense, at an appropriate location or locations to provide the landowner ingress and egress to all of the property to which the landowner had access immediately before performance of the work by the county.

The language of this statute provides the county the authority to take such action as may be necessary to prevent the creek from flooding in order to prevent damage to county property and roads, upon a finding of fact, spread upon its minutes, that the work performed will promote the health, comfort and convenience of the inhabitants of the county. Since the corrective action must take place upon private property, the Board is further required to satisfy the additional requirement of Section 19-5-92.1(2). See, MS AG Op., Neyman (June 13, 2012).

It is, therefore, the opinion of this office that, after making the appropriate findings on its minutes, Oktibbeha County may, in its discretion, take the necessary corrective action to fix the creek so as to prevent future flooding pursuant to its authority under Sections 19-5-92.1. However, the County must satisfy those prerequisites set forth by Section 19-5-92.1(2).

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/ Phil Carter
Phil Carter
Special Assistant Attorney General