When a Mississippi rural water association tears up a paved county road to fix a water line underneath, who pays to repair the road?

Plain-English summary

Tate County's rural water associations were established many years ago when most county roads were gravel. Water lines were placed under the roads, in or alongside the rights-of-way. Many of those roads have since been paved over the existing lines. When a water line under a paved road needs repair, the road has to be torn up. The county attorney asked who pays for what.

The AG answered four questions:

1. Can rural water associations access their water lines underneath county roads? Yes. § 11-27-47 grants water associations the right to construct and maintain lines along or across highways. The county can adopt an ordinance regulating that access.

2. Can the county pay to repair a road damaged by a water association doing line work? No. § 11-27-47 says the water association "shall be responsible in damages for any injury caused by such construction or use thereof." That includes injury to property like roads.

3. Can the county make the repair and bill the water association? Yes. Nothing in § 11-27-47 or other state law prevents the county from making the repair and sending an invoice. The county has full jurisdiction over county roads under Miss. Const. art. VI, § 170 and §§ 19-3-41 and 65-7-1.

4. Can the county pay for relocating water lines under county roads? Yes, under § 19-5-30, if the board of supervisors finds that relocation assistance is in the best interest of the county and the relocation is required for road development or other county improvement.

What this means for you

If you are a county attorney handling water-line/road conflicts

The framework is structured. Default rules:

1. Water association's right to access is statutory. They can dig up their lines.
2. Damage liability follows access. The water association pays for damage they cause, including road damage.
3. County can invoice. The county can repair the road itself and bill the water association.
4. Special cases for relocation. If the county wants to relocate the line (e.g., for road widening, road realignment), § 19-5-30 lets the county fund the relocation if the board finds it in the county's best interest.

Practical implications:
- Build invoicing procedures for road repairs caused by utility work.
- Adopt an ordinance under § 11-27-47 if you want to regulate the manner of access (timing, permits, insurance, traffic control).
- Document § 19-5-30 findings on minutes when the county pays for relocation.

If you serve on a county board of supervisors

You have full jurisdiction over county roads. Use it. When utility damage happens, follow up. When relocation is needed, evaluate carefully and make the § 19-5-30 finding. Don't let road damage just sit while a water association argues over who pays.

If you run a rural water association

You can access your lines, but you pay for any damage you cause. Plan repairs to minimize road damage; coordinate with the county; and budget for road repairs in your operations. If the county adopts an ordinance under § 11-27-47, comply with it.

If you depend on rural water service

When a line breaks, the water association will need to access it, even under a paved road. The repair will cost money to the association (the county may bill them for road damage). That cost may eventually flow to ratepayers, so well-maintained lines and good coordination with the county benefit you long term.

If you advise on county road improvement projects

Build § 19-5-30 into your funding analysis. If a road project requires water line relocation, the county may fund the relocation if the board finds it in the county's interest. Coordinate early with the water association; get a relocation plan and cost estimate; let the board decide based on full information.

Common questions

Q: What is § 11-27-47?
A: It is the Mississippi statute granting water and sewer entities (and similar utilities) the right to construct, maintain, and operate lines along, across, above, or below highways, waters, railroads, canals, and public lands. It also imposes damage liability and authorizes county regulation of access.

Q: Does a county need to grant a separate easement?
A: No. § 11-27-47 grants the access right by statute. AG opinions confirm that no interlocal agreement is required (Bobo, 1998).

Q: Can the county adopt restrictions?
A: Yes. § 11-27-47 says the county "shall have the power to regulate, within its respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county." That allows ordinances on permits, traffic control, insurance, repair quality, and similar topics.

Q: What does "responsible in damages" mean?
A: It means liable for the cost of fixing what was damaged. The Mississippi Supreme Court in Mississippi Valley Gas Co. v. Boydstun (92 So. 2d 334 (Miss. 1957)) and Willmut Gas & Oil Co. v. Covington County (71 So. 2d 184 (Miss. 1954)) held that "any injury" includes injury to property. Road damage is injury to property.

Q: When does § 19-5-30 apply?
A: When relocation of a water line is required for "the development of a public road or other county improvement." If the county is widening a road or building a bridge and the water line needs to move, this statute lets the county fund the relocation.

Q: Does this require a finding?
A: Yes. § 19-5-30 says assistance "may be rendered by the board upon a finding that such would be in the best interest of the county." That finding should be on the minutes.

Q: What if a city is involved instead of a county?
A: § 11-27-47 applies broadly to "highways" and includes municipal property in many cases. Cities have their own ordinance authority over street rights-of-way. The legal framework is similar but municipal ordinances govern municipal streets.

Background and statutory framework

Mississippi's framework for utility lines under public roads has three pieces:

• Statutory access right (§ 11-27-47): water and sewer associations, public utility districts, natural gas districts, and similar entities have a statutory right to install and maintain lines along and across highways.
• Damage liability (§ 11-27-47): the entity is liable for any injury caused by construction or use, including property damage.
• Mutual relocation provision (§ 19-5-30): the county can pay for relocation when it serves the county's interests.

The statutory grant in § 11-27-47 reflects a public-utility legal tradition where utilities have certain rights to use public rights-of-way without separate negotiation, in exchange for accepting liability for the damage they cause.

The Mississippi Constitution (art. VI, § 170) and §§ 19-3-41 and 65-7-1 give the board of supervisors "full jurisdiction over all matters relating to county roads" (Reynolds, 2022). That backstops the county's authority to repair, invoice, and regulate.

The AG's 2023 opinion is consistent with the textual reading of § 11-27-47 and with longstanding AG opinions (Bobo, 1998; Entriken, 1998; Montgomery, 1985).

Citations and references

Statutes:
- Miss. Code Ann. § 11-27-47 (water and utility lines along and across public highways; access right; damage liability; county regulation)
- Miss. Code Ann. § 19-3-41 (board of supervisors' full jurisdiction over county affairs)
- Miss. Code Ann. § 19-5-30 (county authority to assist in water line relocation when in county's best interest)
- Miss. Code Ann. § 65-7-1 (county authority over public roads)

Constitution:
- Miss. Const. art. VI, § 170 (board of supervisors' full jurisdiction over county roads)

Cases:
- Mississippi Valley Gas Co. v. Boydstun, 92 So. 2d 334, 337 (Miss. 1957) (any injury includes injury to property under utility access statutes)
- Willmut Gas & Oil Co. v. Covington County, 71 So. 2d 184, 189 (Miss. 1954) (same)

Prior AG opinions referenced:
- MS AG Op., Bobo (June 19, 1998): § 11-27-47 gives the county authority to allow utility use of road right-of-way without an interlocal agreement.
- MS AG Op., Entriken (July 31, 1998): "any injury" under § 11-27-47 includes property damage.
- MS AG Op., Montgomery (Apr. 18, 1985): county may pay for water line relocation under § 19-5-30 with proper findings.
- MS AG Op., Reynolds (Aug. 22, 2022): board of supervisors has full jurisdiction over all matters relating to county roads.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/11/J.LamarJr.-November-28-2023-Repairs-to-Water-Lines-Under-Current-County-Roads.pdf

Original opinion text

November 28, 2023

John T. Lamar, Jr., Esq.
Attorney, Tate County Board of Supervisors
910 E.F. Hale Drive
Senatobia, Mississippi 38668

Re: Repairs to Water Lines Under Current County Roads

Dear Mr. Lamar:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, rural water associations were established in Tate County, Mississippi many years ago. These associations are either 501(c)(3) corporations or nonprofits. When the associations were formed, most county roads were gravel, and water lines were placed under the county roads, in county rights-of-way, or alongside county rights-of-way. Eventually, many of these county roads were paved, covering the existing water lines with chip-seal or asphalt. On occasion, water lines under paved county roads or rights-of-way must be replaced or repaired.

Questions Presented

1. May rural water associations access water lines underneath county roads?
2. May Tate County pay to repair a county public road when rural water associations damage the road to access their existing water line underneath?
3. If the answer to question two is no, may Tate County make repairs to the damaged county road and send an invoice to the rural water association for reimbursement to the county for said repairs?
4. May Tate County pay for the relocation of existing water lines that run underneath county public roads and/or rights-of-way?

Brief Response

1. Pursuant to Mississippi Code Annotated Section 11-27-47, a rural water association may access its water line underneath a county road; however, a county board of supervisors may likewise adopt an ordinance regulating such access.
2. No. Pursuant to Section 11-27-47, when a rural water association damages a county road while accessing its water line underneath, the rural water association "shall be responsible in damages for any injury caused by such construction or use thereof." This includes injury to property.
3. Neither Section 11-27-47 nor any other state law prevents a county from making repairs to a county road damaged by a rural water association accessing its water line and sending an invoice to the rural water association for reimbursement to the county.
4. Section 19-5-30 provides the board of supervisors of any county with the authority and power "to render any assistance deemed necessary in order to defray the cost of the relocation of a water line operated within the county by a local water association when such relocation is required for the development of a public road or other county improvement." To render such assistance, the board must find it would be in the best interest of the county.

Applicable Law and Discussion

Pursuant to Section 11-27-47:

All companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi, or natural gas districts, incorporated or organized . . . for the purpose of constructing, maintaining and operating lines and appliances, for storing, transmitting and distributing water and for transmitting, treating and disposing of sewage, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipelines and appliances along or across highways, waters, railroads, canals and public lands, above or below ground, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands.

The board of supervisors of any county through which any such line may pass shall have the power to regulate, within its respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county. All such companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.

As previously opined by this office, Section 11-27-47 "gives the county authority to allow municipal use of the county's road right-of-way for construction and maintenance of municipal water mains without the necessity of an interlocal agreement." MS AG Op., Bobo at 1 (June 19, 1998). The same is true regarding a rural water association's access to its water lines. This said, Section 11-27-47 also provides that a county board of supervisors may adopt an ordinance regulating such access. Further, Section 11-27-47 prohibits the county from paying to repair a county public road when a rural water association damages the road while accessing its water line underneath. As stated supra, Section 11-27-47 mandates "[a]ll such companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof." (emphasis added). "Any injury," as used in Section 11-27-47, includes injury to property. See Miss. Valley Gas Co. v. Boydstun, 92 So. 2d 334, 337 (Miss. 1957); Willmut Gas & Oil Co. v. Covington Cnty., 71 So. 2d 184, 189 (Miss. 1954); MS AG Op., Entriken at 1 (July 31, 1998).

For these reasons, it is the opinion of this office that a rural water association may access its water lines underneath county roads. However, a county may not pay to repair a county public road when a rural water association damages the road while accessing its water line underneath. That said, it is also the opinion of this office that neither Section 11-27-47 nor any other state law prevents a county from making repairs to a county road damaged by a rural water association accessing its water line and sending an invoice to the rural water association for reimbursement to the county for said repairs. See also MS AG Op., Reynolds at *1 (Aug. 22, 2022) (citing MISS. CONST. art. VI, § 170; Miss. Code Ann. §§ 19-3-41 and 65-7-1) (providing a county "board of supervisors has full jurisdiction over all matters relating to county roads").

Regarding your final question, Section 19-5-30 explicitly addresses the relocation of water lines operated within the county by a local water association:

The board of supervisors of any county in this state is hereby authorized and empowered, in its discretion, to render any assistance deemed necessary in order to defray the cost of the relocation of a water line operated within the county by a local water association when such relocation is required for the development of a public road or other county improvement. Such assistance may be rendered by the board upon a finding that such would be in the best interest of the county.

As such, it is the opinion of this office that Tate County may pay for the relocation of the existing water lines underneath county public roads and/or rights-of-way as long as the board of supervisors makes the finding, spread upon its minutes, that such relocation assistance would be in the best interest of the county. See also MS AG Op., Montgomery, at *1 (Apr. 18, 1985) (concluding the same).

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General