If a Mississippi city closed a street years ago and now wants it back, can the city just rescind the closure or does it have to use eminent domain?

Plain-English summary

Years ago, the City of Corinth voted to close a portion of Pierce Street between Meigg Street and Scott Street. The Meigg Street Church of Christ owned the property abutting the closed portion. The closure resolution said it was contingent on all abutting owners waiving compensation. There's no record of either the City or the Church taking follow-up action, and the question now is whether Corinth can just pass a new resolution to reopen the street.

The AG's answer: probably not, and the path forward depends on two factual determinations the City must make first.

Step 1: Was the street actually closed? That's a factual question. § 21-37-7 lets a municipality close any street or alley, but only after due compensation is made to abutting landowners (or those landowners waive compensation). If the proper procedures weren't completed, the street may not have been validly closed in the first place, and there's no reopening problem to solve.

Step 2: If it was closed, who owns the underlying fee? That's also a factual question. If the City had only an easement, when the street was closed the property reverted to the abutting owner. If the City had the underlying fee, the City still owns the strip and can reopen by ordinance.

If the City had only an easement and the Church now owns the underlying fee, the City can't just reverse course by passing a new resolution. Mississippi Supreme Court in City of Jackson v. McAllister, 475 So. 2d 432 (Miss. 1985), held that a city can reopen a closed street, but only "through the process of eminent domain as opposed to the use of an ordinance rescinding the order closing the street." The 1913 Berry v. Town of Mendenhall decision laid the foundation: if cities could close and reopen at will, ownership of the closed strip would be perpetually uncertain, which is intolerable.

So Corinth's path forward, in order:
1. Investigate the historical record. Was the closure resolution implemented, including compensation or a documented waiver?
2. Determine title. Did the City have an easement or a fee?
3. If easement plus closure plus reversion, the City must use eminent domain to reopen.
4. If title remained with the City, an ordinance reopening the street is sufficient.

What this means for you

If you are a Mississippi city or county attorney

When a street closure question comes back years later, dig into the file. The legal status depends on what was actually done at the time. If the closure was completed and the abutting owner now holds the underlying fee, eminent domain is the only path back.

If you are a property owner abutting a closed street

You may own the underlying fee, depending on whether the city had only an easement or held the fee outright. If the city wants to reopen, it cannot just rescind by ordinance; it must pursue eminent domain, which entitles you to compensation.

If you are on a city council or board of aldermen

Don't assume reopening a long-closed street is a matter of repealing the old closure resolution. McAllister says no. Get title research and historical records first. Plan for eminent domain costs if reversion occurred.

If you are a developer interested in a closed street strip

Title is everything. The strip may belong to the abutting owner, not the city, even if everyone has long forgotten about the closure. Pull the closure ordinance, check for evidence of compensation or waiver, and run a title search.

If you sit on a planning commission

Long-closed streets reopened through planning processes can run into eminent domain issues. Coordinate early with the city attorney to determine whether reopening requires acquisition.

Common questions

Q: What is § 21-37-7?
A: It's the Mississippi statute giving municipalities authority to close and vacate streets or alleys. The statute requires due compensation to abutting landowners, or their waiver, before the closure takes effect.

Q: What's the difference between a closure with an easement and a closure with the fee?
A: If the city only ever had an easement (right to use the strip for a street), closing the street ends the easement and the fee remains with whoever held it (typically abutting owners by halves). If the city held the fee, the city still owns the strip even after closure.

Q: Why does this distinction matter?
A: Because if the abutting owner now holds the fee, the city is no longer the owner of the strip. Reopening requires acquiring the property again, which is what eminent domain is for.

Q: How does eminent domain work in this situation?
A: The city declares an intent to take the property, files a condemnation action, and pays just compensation as determined by appraisal and (if disputed) judicial proceedings. The Mississippi Eminent Domain Law (§§ 11-27-1 et seq.) provides the procedural framework.

Q: What's the rationale in Berry v. Town of Mendenhall?
A: The Mississippi Supreme Court worried about title certainty: "If boards of aldermen were permitted to close and reopen streets at their will and pleasure, the status of affairs would be uncertain, and the ownership of the fee in the soil embraced within the closed streets would remain forever in abeyance." So once a street is closed and the fee reverts, the city can't just rescind to bring the strip back.

Q: Does it matter that the closure was contingent on waiver, and there's no record of the waiver?
A: Yes. If the conditional language meant the closure required waiver to take effect, and no waiver was ever obtained, the closure may never have been complete. That would mean the street is still legally a public street and ordinary procedures (perhaps reopening a physically blocked street) would apply, not eminent domain.

Q: Can the church just give the strip back?
A: If the church owns the underlying fee, it can convey the strip to the city by deed (sale, donation in some configurations, dedication). This avoids eminent domain and is often the cheapest path when the abutting owner is willing.

Q: What if title research is inconclusive?
A: Then the city has to make a factual determination subject to judicial review, and the abutting owner can challenge the determination in court. Practical advice: when in doubt, treat eminent domain as the safer path, because it provides clearest title.

Background and statutory framework

§ 21-37-7 authorizes municipal street closures:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

To close, the municipality must find that the closure is for the public good. Mill Creek Properties, Inc. v. City of Columbia, 944 So. 2d 67, 69 (Miss. Ct. App. 2006). Prior MS AG opinions (e.g., Stockton, Mar. 23, 2007) restate the standard: the governing authority may close on a finding that the street is no longer required for public use or convenience and there is a public necessity for vacation.

The reversion question depends on what interest the city held. The default Mississippi rule, restated in numerous AG opinions and Mississippi Supreme Court decisions, is that an easement returns the soil and freehold to the abutting owners on closure: "where 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." Purdie (MS AG Op., Aug. 31, 2020) (internal quotation omitted).

Reopening requires eminent domain when reversion occurred. City of Jackson v. McAllister, 475 So. 2d 432, 434 (Miss. 1985), held that a city may reopen a closed street, but the path is condemnation:

The City, having chosen to close the street . . . must reopen the street through the process of eminent domain as opposed to the use of an ordinance rescinding the order closing the street.

The pre-McAllister foundation is Berry v. Town of Mendenhall, 61 So. 163, 164 (Miss. 1913), expressing concern about title uncertainty if cities could close and reopen at will.

The AG's role is to lay out the framework. The factual determinations (whether the street was actually closed, who holds the underlying fee) are for the city's governing authority to decide, subject to judicial review.

Citations and references

Statutes:
- Miss. Code Ann. § 21-37-7 (municipal authority to close and vacate streets and alleys)

Cases:
- Mill Creek Properties, Inc. v. City of Columbia, 944 So. 2d 67 (Miss. Ct. App. 2006) (closure must be for the public good)
- City of Jackson v. McAllister, 475 So. 2d 432 (Miss. 1985) (reopening a closed street requires eminent domain, not ordinance)
- Berry v. Town of Mendenhall, 61 So. 163 (Miss. 1913) (foundational rule against reopening closed streets at will)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/A.Bullard-February-29-2024-Authority-to-Reopen-a-Street.pdf

Original opinion text

February 29, 2024

Arch Bullard, Esq.
Attorney, City of Corinth
Post Office Box 1613
Corinth, Mississippi 38835

Re: Authority to Reopen a Street

Dear Mr. Bullard:

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

Background

According to your request, the mayor and board of aldermen of the city of Corinth ("City") voted to close a portion of Pierce Street from Meigg Street to Scott Street, which had been requested by Meigg Street Church of Christ ("Church"), the entity that owns the property abutting the portion of Pierce Street to be closed. Your request states that the City resolution closing the portion of the street provides, "that it is hereby found that that section of Pierce Street between Meigg Street and Scott Street should be closed, contingent upon all abutting property owners waiving due compensation." We understand that there is no evidence of any action by the City or the Church related to the closing of Pierce Street after that vote. You now state that the Board of Aldermen is interested in reopening the portion of Pierce Street that was purportedly closed.

Question Presented

Can the City simply pass a resolution reopening the portion of Pierce Street that was purportedly closed, or is the City obligated to pursue eminent domain procedures to reopen Pierce Street?

Brief Response

The City must first determine whether the street or any portion thereof was actually closed and vacated. If the street was closed and vacated, and the Church was found to be the owner of the underlying fee, the City would now have to pursue eminent domain procedures to reopen the closed street and would not be able to do so merely by passing a new resolution.

Applicable Law and Discussion

Mississippi Code Annotated Section 21-37-7 authorizes a municipality to close and vacate any street or alley, or any portion thereof:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

In order to close and vacate a street under this statute, the municipality must find that the closing is for the public good. Mill Creek Properties, Inc. v. City of Columbia, 944 So. 2d 67, 69 (Miss. Ct. App. 2006). See MS AG Op., Stockton at *1 (Mar. 23, 2007) ("The governing authority may close the street in a manner consistent with the provisions of Section 21-37-7, upon a finding that the street is no longer required for public use or convenience and there is a public necessity for its vacation.").

Once a decision is made to close a street, whether the street reverts back to the adjoining property owners is a determination of fact to be made by the municipal governing authorities and depends on who owns the underlying fee. In your particular situation, if the City had only taken an easement for the street, then the street reverts back to the owners of the underlying fee. Otherwise, the underlying fee belongs to the City. See MS AG Op., Purdie at 3 (Aug. 31, 2020) ("[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.") (internal quotations and citation omitted); MS AG Op., Herring at 2 (Sept. 11, 2006) ("[O]nce the appropriate procedures to vacate the street have been followed as set out in Section 21-37-7, the property in question would revert to the owners of the underlying fee. . . .").

If it is determined that the Church is the owner of the underlying fee, and the street has been closed, then the City may not simply pass a resolution to reopen the street. While the Supreme Court has held that a city may reopen a street it has chosen to close, to do so, the city must "reopen the street through the process of eminent domain as opposed to the use of an ordinance rescinding the order closing the street." City of Jackson v. McAllister, 475 So. 2d 432, 434 (Miss. 1985) (citation omitted). See Berry v. Town of Mendenhall, 61 So. 163, 164 (Miss. 1913) ("If boards of aldermen were permitted to close and reopen streets at their will and pleasure, the status of affairs would be uncertain, and the ownership of the fee in the soil embraced within the closed streets would remain forever in abeyance, and we think this would be intolerable.").

In conclusion, the City must determine whether the street or part thereof was actually closed, and if so, further determine who owns the underlying fee. If the Church is found to be the owner of the underlying fee, the City would have to pursue eminent domain procedures to reopen the closed street.

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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General