MS 2020-09-N-Sullivan-August-31-2020-Cost-of-Personal-Service-Line-to-Existing-City-Utiliti August 31, 2020

Does a Mississippi city have to pay to run a water tap line from its main to a private property owner's lot, or does the owner pay?

Short answer: The AG concluded that under Mississippi law, a Mississippi municipality maintains the main sewer or water line up to the point of connection, while the property owner is responsible for the personal service line beyond that point. Reimbursing a private owner for that work would likely be an unconstitutional donation.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

A property owner in Ocean Springs bought one of three lots split off from a larger 2015 subdivision and asked the city to pay for the water and sewer tap that would connect his new single-family home to the city's main. The city wanted to know who, under Mississippi law, was supposed to pay for that work, whether the city had any discretion to weigh costs and benefits, and what would happen if the owner had already built the line and was asking to be reimbursed.

The AG laid out a familiar division of responsibility:

The main line is the city's job. Section 21-27-23 lets a municipality build and maintain main sewer lines within its limits so that property owners can connect service lines onto them. The city has authority to extend the main line and even has a duty (rooted in older Mississippi Supreme Court cases) to extend service to its residents when there is reasonable demand and a reasonable extension can be made considering cost, present and prospective subscribers, the development of the area, and present and prospective revenue.
The service line, from the main to the house, is the owner's job. Mississippi AG opinions going back to MS AG Op., Baker (July 19, 2001) draw the line at the point of connection. Beyond it, the owner installs and maintains.
Economic reasonableness gates the city's obligation to extend. The AG cited Mayo (May 24, 2019), Hammack (April 12, 1995), and Chandler (April 1, 2005) for the rule that a municipality is not required to extend the main line if doing so would not be economically reasonable. The factors are essentially a feasibility test the governing authorities apply.

The AG declined to make the central factual call: whether the work the property owner wanted reflected an extension of the main line (which would put it on the city) or just a private service line connecting to the existing main (on the owner). That is a factual question for the city's governing authorities, reviewable in court.

On the third question (reimbursement if the owner already built the line and the city is later found responsible), the AG flagged Section 66 of the Mississippi Constitution. A public entity reimbursing a private entity for construction costs could amount to an unlawful donation, although the city does have authority under Section 25-1-47 to settle doubtful claims, which carves a limited path.

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

Where does "city pays" stop and "owner pays" start?

At the point of connection between the main line and the service line. Up to that point is the city's main, which the city maintains. Beyond that point is the personal service line, which the owner installs and maintains.

Can the city be forced to extend the main line to a house at the end of nowhere?

Not unconditionally. Mississippi case law (Ladner, Greenwood v. Provine, Brown v. Meridian) requires extension only where there is reasonable demand and a reasonable extension can be made, considering cost of extension, maintenance, current and prospective subscribers, current and prospective development, and current and prospective revenue. The governing authorities make that call.

Whose job is it to decide which kind of line is in question?

The city's governing authorities, applying the facts on the ground. The AG cannot make a factual determination. A court of competent jurisdiction can review.

If the owner builds the line first and the city later decides it should have paid, can the owner be reimbursed?

The AG did not answer "yes" or "no" but warned that reimbursing a private party for construction costs could amount to an unlawful donation under Section 66 of the Mississippi Constitution. There is a possible path under Section 25-1-47 (settling doubtful claims), but the AG cabined the answer carefully.

What about the cost-benefit analysis the city wants to do?

That is permitted. Even if the work would be classified as a main-line extension, the city retains discretion to find that an extension is not economically reasonable. The factors the case law lists (cost, demand, growth, revenue) flow into that finding.

Background and statutory framework

Section 21-27-23 authorizes municipalities to create and maintain a sewage disposal system by extending sewer main lines within municipal limits so individuals and businesses can connect service lines onto the main.

The case-law trio rounds out the duty-to-extend doctrine. Ladner v. Mississippi Public Utilities Co., 131 So. 78, 79 (Miss. 1930), articulates the multi-factor reasonableness test. Greenwood v. Provine, 143 Miss. 42, 108 So. 284 (1926), runs in parallel. Brown v. Meridian, 102 Miss. 384, 59 So. 795 (1912), states that the city has a duty to construct mains adequate to its duty to furnish water supply to its patrons.

Prior AG opinions Brannon (Dec. 21, 2012), Baker (July 19, 2001), Chandler (April 1, 2005), Mayo (May 24, 2019), and Rutledge (Sept. 30, 2005) had already drawn the city/owner line at the point of connection and recognized the economic-reasonableness gate.

Section 25-1-47 lets a municipality settle doubtful claims. Section 66 of the Mississippi Constitution forbids donations of public funds.

The opinion is signed by Special Assistant Attorney General Beebe Garrard on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 21-27-23 (municipal sewage disposal system authority)
Miss. Code Ann. Section 25-1-47 (settlement of doubtful claims)
Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
Mississippi Constitution Article 4, Section 66 (no donations)
Ladner v. Mississippi Public Utilities Co., 131 So. 78, 79 (Miss. 1930)
Greenwood v. Provine, 143 Miss. 42, 108 So. 284 (1926)
Brown v. Meridian, 102 Miss. 384, 59 So. 795 (1912)
MS AG Op., Brannon (Dec. 21, 2012)
MS AG Op., Baker (July 19, 2001)
MS AG Op., Chandler (April 1, 2005)
MS AG Op., Mayo (May 24, 2019)
MS AG Op., Hammack (April 12, 1995)
MS AG Op., Rutledge (Sept. 30, 2005)

Source

Original opinion text

August 31, 2020

Nicole Sullivan, Esq.
City Attorney, City of Ocean Springs
Post Office Box 1618
Pascagoula, Mississippi 39568-1618

Re: Cost of Personal Service Line to Existing City Utilities

Dear Ms. Sullivan:

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

Questions Presented

In your request, you ask three questions regarding the legality of providing a water/sewer personal service line to an individual property owner within the City of Ocean Springs ("City"):

Is the City or the individual property owner responsible for the cost of extending a personal service (tap) line to the City's water/sewer main?
Should this office determine that the City is responsible for the cost, does the board retain the authority to make a factual determination on whether the costs of such personal service line outweigh the benefits?
Should this office determine that the City is responsible for the cost, is the individual property owner entitled to reimbursement if he moves forward with construction of the personal service line prior to the issuance of an opinion?

Background

According to your request, the City has been asked by a property owner to pay for a personal tap to the City's water/sewer main. The subject property was once part of one platted parcel that contained seven different lots. In 2015, the property was divided into three separate parcels, two of which had never had a water/sewer tap line since neither had ever been developed as individual properties. In February 2020, Parcel 2 was sold to an individual who wishes to build a single family home on the property. The new property owner has asked the City to pay for a water/sewer tap from the City's water/sewer main to his property line at Parcel 2. This water/sewer tap would serve the property owner only.

Brief Response

A municipality is authorized to create and maintain the main sewer line to the point of connection with the service line, and the property owner has the responsibility to connect and maintain the service line from the point of connection with the main line to the residence.
When extending the main line for water and sewer services, a municipality may consider whether such extension is economically reasonable.
Because we did not determine that the City is responsible for the cost of extending a personal service (tap) line to the City's water/sewer main, your third question is moot. However, we note that reimbursing a private property owner for his construction costs would likely be an unlawful donation in violation of Section 66 of the Mississippi Constitution.

Applicable Law and Discussion

It appears that the municipality and the private property owners are in a dispute over whether the extension of water services would require an extension of the main water line, which would be the responsibility of the municipality, subject to the limitations further discussed below, or whether the property owner can access water services simply by connecting a private service line to the City's main water line, in which case the private property owner would bear the cost of installation. This is not a matter that can be resolved by official opinion. Whether a water line is part of the main line or is a private service line connecting an individual property owner is a question of fact to be determined by the governing authorities, subject to review by a court of competent jurisdiction. For general guidance, please see our comments below.

"In accordance with Mississippi Code Annotated Section 21-27-23, a municipality is authorized to create and maintain a sewage disposal system by extending sewer main lines within the municipal limits so that individuals and businesses may connect service lines onto the main line." MS AG Op., Brannon at 2 (Dec. 21, 2012). "[A] municipality has the authority to maintain the main sewer line to the point of connection with the service line, and the property owner has the responsibility to maintain the service line from the point of connection with the main line to the residence." MS AG Op., Baker at 1 (July 19, 2001). We have also opined that a municipality is not required to extend the main line for water and sewer services to residents if doing so would not be economically reasonable. MS AG Op., Chandler at *1 (Apr. 1, 2005).

With regard to a municipality's authority to extend utility lines, we have previously opined that:

a city may and is legally obligated to extend its service to furnish adequate water supply to its residents where there is a reasonable demand for the service and a reasonable extension of the service can be made to meet the demand, considering the cost of the extension and the maintenance of the service, the present and prospective number of subscribers or customers, the present development and the prospective growth and development of the locality to be served, and the present and prospective revenue to be obtained from furnishing water in the territory to be served by such extension. Ladner v. Mississippi Public Utilities Co., 131 So. 78, 79 (Miss. 1930). See also, Greenwood v. Provine, 143 Miss. 42, 108 So. 284 (1926). "The city has a duty to construct its mains as to enable it to comply with its duty to furnish adequate water supply to its patrons." Brown v. Meridian, 102 Miss. 384, 59 So. 795 (1912). If the city finds an extension is necessary for the proper operation of the system and the benefit of the public, taking into consideration the above factors, then it may extend its water main to provide such service.

MS AG Op., Mayo at 2 (May 24, 2019) (citing MS AG Op., Hammack (Apr. 12, 1995)); see also MS AG Op., Rutledge at 1 (Sept. 30, 2005).

As such, whether a municipality is required to provide or extend sewer service is a factual determination to be made by the municipal governing authorities and is subject to review by a court of competent jurisdiction.

Your third question asks whether the City is responsible for reimbursing the property owner if this office determines that the City is responsible for the costs and the property owner proceeds with the construction of a personal service line prior to the issuance of this opinion. As stated above, whether the City is responsible for such a cost is a factual determination to be made by the City and is subject to judicial review. Generally speaking, a public entity reimbursing a private entity for construction costs could potentially result in an unlawful donation in violation of Section 66 of the Mississippi Constitution of 1890. However, it is worth noting that a municipality has the authority to settle claims pursuant to Mississippi Code Annotated Section 25-1-47.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General