When a Mississippi city vacates an old street it acquired by common-law dedication, who owns the underlying land?

Plain-English summary

The City of Clinton's Board of Aldermen passed an ordinance closing and vacating a former right-of-way called Livingston Road, depicted on a 1908 plat (Todd's Addition). The roadbed had vanished long ago and no public or private property would be hurt by the closure. Clinton said it had acquired Livingston Road by common-law dedication. Its city attorney asked the AG: when an ordinance vacates the right-of-way, does title to the underlying real property automatically revert to the abutting property owners, or does the city have to dispose of the property like surplus city land under Section 21-17-1?

The answer turns on the difference between two kinds of dedications.

Common-law dedication. Operates by equitable estoppel. Creates a "mere easement" in favor of the public. The fee title stays with the original landowner (or the landowner's successors). When the easement is extinguished, the freehold is no longer burdened, and the underlying property is back in the owner's hands as if the easement had never existed.

Statutory dedication. Operates by way of a grant. Section 21-19-63 tells the story for plat-based dedications: when a subdivision plat is 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 the fee passes. Section 21-19-63 also has its own reversion rule: when an easement dedicated under that section is determined no longer to be needed for its public purpose, "ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment," extending to the centerline, but without affecting any private easements that might exist.

The McBroom court summarized the distinction this way:

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.

Acceptance of a common-law dedication can occur by an order of the governing body or by construction and maintenance of the road with public funds (Coleman v. Shipp, 78 So. 2d 778, 784 (Miss. 1955)). Section 21-37-7 lets a municipality close and vacate any street, alley, or portion thereof by ordinance or order based on a finding that closure is in the public interest, with due compensation owed to abutting landowners only when damages are sustained.

Applied to Livingston Road: because the city's own determination was that it acquired the road only by common-law dedication, the city held only an easement. Section 21-37-7's procedure was satisfied. The easement ceased to exist. The fee title, which had never left the original landowner's chain, was no longer burdened. Section 21-17-1's surplus-property procedures do not apply because there is no fee for the city to sell.

The AG also stuck to its standard caveat: it cannot make factual determinations under Section 7-5-25 and accepted the city's own classification of the dedication as common law.

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

What is the practical difference between common-law and statutory dedication?

Who holds the fee. In common-law dedication the public takes only an easement, with the fee staying in the original landowner. In statutory dedication the fee actually transfers to the public. So when the public way is later vacated, the path of the underlying land back to a private owner depends on which kind of dedication was in play.

Why does Section 21-17-1 not apply here?

Section 21-17-1 lets a city dispose of surplus property the city actually owns. If the city only ever held an easement, there is no fee for the city to dispose of when the easement ends. The fee was always with the abutting landowner.

Who decides whether the road was a common-law or statutory dedication?

The municipal governing authorities, on the facts of how the road was originally created and accepted. The AG cannot make that factual determination; it accepted Clinton's own classification.

Are abutting landowners owed money when the city vacates a road?

Section 21-37-7 requires due compensation only when the closure causes damages. Clinton found in its ordinance that no adjoining property owner would suffer damage from the closure of Livingston Road, so no compensation was due.

What if abutting owners disagree with the no-damages finding?

A landowner may challenge the factual determination in a court of competent jurisdiction (citing MS AG Op., Cooke, March 15, 1995).

Background and statutory framework

Section 21-37-7 lets a municipality close and vacate a street, alley, or portion thereof by ordinance or by order entered in the minutes upon a finding that closure is in the public interest, subject to a duty to compensate abutting landowners for damages.

Section 21-19-63 (Rev. 2009) governs statutory plat dedications. It sets up the dedication-to-public-use rule for streets and alleys shown on an approved subdivision plat, and it carries its own reversion rule when the dedicated public way is no longer needed.

Section 21-17-1 governs disposal of surplus city-owned property. It only operates when the city actually holds the fee.

McBroom v. Jackson Cnty., 154 So. 3d 827, 831 (Miss. 2014), and Nettleton Church of Christ v. Conwill, 707 So. 2d 1075, 1076 (Miss. 1997), are the Mississippi Supreme Court's articulation of the common-law versus statutory dedication distinction. Coleman v. Shipp, 78 So. 2d 778, 784 (Miss. 1955), explains acceptance. Harris v. Elliott, 35 U.S. 25 (1836), articulates the underlying common-law principle that an easement leaves the soil and freehold in the owner of the land, with the easement reverting to that owner upon discontinuance of the highway.

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

Citations

• Miss. Code Ann. Section 21-37-7 (closing and vacating streets)
• Miss. Code Ann. Section 21-19-63 (statutory plat dedication and reversion)
• Miss. Code Ann. Section 21-17-1 (disposal of city-owned property)
• Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
• McBroom v. Jackson Cnty., 154 So. 3d 827, 831 (Miss. 2014)
• Nettleton Church of Christ v. Conwill, 707 So. 2d 1075, 1076 (Miss. 1997)
• Coleman v. Shipp, 78 So. 2d 778, 784 (Miss. 1955)
• Harris v. Elliott, 35 U.S. 25, 26 (1836)
• Kiely v. Graves, 271 P. 3d 926, 932 (Wash. 2012) (cited for the common-law vs. statutory dedication distinction)
• MS AG Op., Bryant at *2 (Aug. 28, 1979)
• MS AG Op., Cooke at *1-2 (Mar. 15, 1995)
• MS AG Op., White at *2-3 (Apr. 14, 2011)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/09/W.Purdie_August-31-2020-Vacating-Municipal-Street.pdf

Original opinion text

August 31, 2020

William C. Purdie, Esq.
City Attorney, City of Clinton
Post Office Box 156
Clinton, Mississippi 39060

Re: Vacating Municipal Street

Dear Mr. Purdie:

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

Question Presented

When a municipality, by ordinance, closes and vacates a public right-of-way, does title to the real property underlying the right-of-way revert to the adjoining property owners, or must the city dispose of the property pursuant to Mississippi Code Annotated Section 21-17-1?

Background

The City of Clinton Board of Aldermen (the "Board") passed an ordinance closing and vacating, pursuant to Mississippi Code Annotated Section 21-37-7, a former right-of-way commonly known as Livingston Road. The Board determined the road, depicted by the "Todd's Addition" plat map of 1908, was no longer in use as a public right-of-way, as the roadbed and other supporting infrastructure no longer existed. The Board further found that no public or private property would be detrimentally affected or impacted by the proposed closure and vacation of the right-of-way. The City contends that it acquired Livingston Road by a common law dedication.

Brief Response

Pursuant to Mississippi Code Annotated Section 7-5-25, the Office of the Attorney General cannot make a factual determination by official opinion. Thus, this opinion relies upon the City of Clinton's determination, as stated within its request, that Livingston Road was acquired by dedication and acceptance under common law. As the City did not acquire a fee interest in the real property, but only an easement, the title to the property underlying Livingston Road is vested in the abutting property owner(s).

Applicable Law and Discussion

The Mississippi Supreme Court has defined "dedication" as "the setting aside of land for public use." McBroom v. Jackson Cnty., 154 So. 3d 827, 831 (Miss. 2014) (quoting 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. McBroom, 154 So. 3d at 831 (citing Conwill, 707 So. 2d at 1076); see also Kiely v. Graves, 271 P. 3d 926, 932 (Wash. 2012) (common law dedications are controlled by common law principles while statutory dedications are governed by specific statutes).

On these two forms of dedication, the Mississippi Supreme Court has found:

Two distinctions separate the different types of dedication. 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.

McBroom, 154 So. 3d at 831 (internal citations and punctuation omitted) (citing Conwill, 707 So. 2d at 1076).

In Mississippi, a statutory dedication is governed by Mississippi Code Annotated Section 21-19-63 (Rev. 2009), which states as follows:

The governing authorities of municipalities may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county. Where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. 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 unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public. If any easement dedicated pursuant to the provisions of this section for a street, road, alley or other public purpose is determined to be not needed for the public purpose, the easement may be declared abandoned, and ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment. Ownership of the easement shall extend to the centerline of said abandoned street, road or public way. Such abandonment and reversion shall not affect any private easements which might exist.

Here, the City of Clinton has determined that Livingston Road was acquired by common law dedication and acceptance. 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. Conwill, 707 So. 2d at 1076 (collecting cases). For a street to be considered a public road through dedication, it must also be accepted by the public entity. Acceptance may occur by an order issued by the governing authorities of the public entity or by the construction and maintenance of the road with public funds. MS AG Op., Cooke at *1 (Mar. 15, 1995) (citing Coleman v. Shipp, 78 So. 2d 778, 784 (Miss. 1955)). Based on the City of Clinton's opinion, as stated in its request, we assume for the purposes of this opinion that Livingston Road was dedicated and accepted by the City.

Municipal governing authorities are empowered to close and vacate any street, alley or portion thereof, by either adopting an ordinance or entering an order in the minutes, based upon a finding that such closure or vacation is in the public interest. Miss. Code Ann. § 21-37-7; see also MS AG Op., Bryant at *2 (Aug. 28, 1979). By Ordinance dated April 7, 2020, the City of Clinton closed and vacated Livingston Road based upon the Board's factual determination that "the right-of-way to be vacated serves no present or projected public use and that the proposed closure and vacation is in the public interest."

The statute requires due compensation must be paid to abutting landowners when damages are sustained. MS AG Op., Cooke at *2 (Mar. 15, 1995). By its Ordinance, the City of Clinton found "no adjoining property owners will suffer damages from the closure of Livingston Road." If there are no damages, then no compensation is due to abutting landowners.

Given the satisfaction of Section 21-37-7's requirements for closing or vacating Livingston Road, the property thereafter reverts to the owners of the underlying fee, which in this case are the successors in interest of the original grantor of the easement. See MS AG Op., White at *2-3 (Apr. 14, 2011) ("[W]here a mere easement is taken for a public highway, the soil and freehold remains in the owner of the land, encumbered only with the easement, and that, upon the discontinuance of the highway, the soil and freehold revert to the owner of the land." (quoting Harris v. Elliott, 35 U.S. 25, 26, 9 L. Ed. 333 (1836))). As a common law dedication creates a mere easement, the easement ceased to exist when the City of Clinton determined Livingston Road no longer served a present or projected public use. See Conwill, 707 So. 2d at 1076.

Since the City of Clinton acquired a mere easement, having acquired Livingston Road by common law dedication and acceptance, the fee title remaining in the landowner was no longer burdened by the easement. It is, therefore, the opinion of this office that, by the closure and vacation of Livingston Road, pursuant to Section 21-37-7, the property reverts to the owners of the underlying fee.

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

[Footnotes: 1. Section 21-19-63 was amended in 2008 (Laws 2008, Chapter 339) and 2009 (Laws 2009, Chapter 531). 2. A landowner may challenge a factual determination by the governing authorities in a court of competent jurisdiction. MS AG Op., Cooke at *2 (March 15, 1995).]