Can a Mississippi city repair a drainage ditch on private property to fix flooding and erosion?

Plain-English summary

A Booneville alderman asked the AG whether the city could come onto private property and fix a drainage ditch that was causing flooding and erosion bad enough that residents' yards were washing away and outbuildings were at risk. The owners had given consent.

Section 21-19-13(2) is the answer. It says cities have "the power and authority to incur costs and pay necessary expenses in providing labor, materials and supplies to clean or clear drainage ditches, creeks or channels, whether on public or private property, and to incur costs and pay necessary expenses in providing labor, materials and supplies in order to prevent erosion where such erosion has been caused or will be caused by such drainage ditches, creeks or channels." The same statute clarifies that this power does not create any new municipal duty or new property-owner rights.

The AG noted that whether the specific situation described qualifies as a "drainage ditch, creek, or channel" and whether the damage is "erosion" within the meaning of the statute are factual questions the city has to resolve, not the AG. With those findings made, the city has authority to do the work.

What this means for you

For city governments and engineering departments

The opinion holds that under Section 21-19-13(2) the City has authority to clean or clear drainage ditches, creeks, or channels on public or private property and to do erosion-prevention work caused by them, "[u]pon making the appropriate factual determinations." Those determinations (whether the feature is a "drainage ditch, creek, or channel" and whether the damage is "erosion" within the statute) are for the City, subject to judicial review, not the AG. The statute is a grant of power, not a mandate: it "shall not impose any obligation or duty upon the municipality." The opinion also presumes the City has the property owners' permission to enter.

For homeowners with drainage and erosion damage

The opinion makes the authority permissive. A Mississippi city may choose to do this work, but Section 21-19-13(2) "shall not create any additional rights for the benefit of any owner of public or private property," so it gives you no legal right to demand the repair. The opinion also assumes the city has the owner's permission before entering the property.

For city attorneys

The opinion ties Section 21-19-13(2) back to MS AG Op., Holmes-Hines (Aug. 22, 2003): "A city may perform work on private property adjacent to the city right-of-way with the permission of the landowner to correct unsafe conditions, i.e., erosion or sinkholes, or flooding, which were directly caused by the way in which the municipality drained the city streets." That earlier opinion tied the authority to drainage caused by city streets; the 2024 opinion applies the statute's "public or private property" language without drawing that line. Both turn on the factual determinations the statute requires.

Common questions

Does the statute apply only to ditches near city streets?

Section 21-19-13(2) on its face refers to "drainage ditches, creeks or channels" without limiting the location to city street drainage. The 2003 Holmes-Hines opinion applied the authority in the context of street drainage; the 2024 Hicks opinion does not draw that line and applies the statute's text after noting that whether the feature qualifies is a factual determination for the city.

Does the city need the owner's permission?

Yes. The opinion presumes the city has the property owner's permission to enter. Section 21-19-13(2) does not give the city a right of entry over the owner's objection.

Does Section 21-19-13(2) make the city liable for future flooding or erosion?

No. The statute says: "This paragraph shall not impose any obligation or duty upon the municipality and shall not create any additional rights for the benefit of any owner of public or private property."

Who decides whether the feature is really a "drainage ditch, creek, or channel"?

The city does, as a factual determination subject to judicial review. The AG cannot make that call under Section 7-5-25.

Can the city use private contractors and city funds for this work?

Yes. The statute authorizes the city to "incur costs and pay necessary expenses in providing labor, materials and supplies." Whether to use city crews or a contractor is a procurement question outside the scope of this opinion.

Background and statutory framework

Section 21-19-13(2) authorizes municipalities to incur costs and pay expenses for labor, materials, and supplies to (a) clean or clear drainage ditches, creeks, or channels on public or private property, and (b) prevent erosion caused (or to be caused) by such ditches, creeks, or channels. The subsection includes a no-new-duty / no-new-rights clause.

MS AG Op., Holmes-Hines (Aug. 22, 2003), applied this authority in the context of erosion or flooding caused by the way a municipality drained its city streets, with the property owner's permission.

Section 7-5-25 restricts AG opinions to questions of state law and excludes factual determinations like whether a particular waterway qualifies as a "drainage ditch, creek, or channel."

Citations

• Miss. Code Ann. § 21-19-13(2)
• Miss. Code Ann. § 7-5-25
• MS AG Op., Holmes-Hines (Aug. 22, 2003)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/10/2024-00113-Hicks.pdf

Original opinion text

September 17, 2024
The Honorable Jimmy Clyde Hicks
Alderman, City of Booneville
3702 East Chambers Drive
Booneville, Mississippi 38829
Re:

Repair of Drainage Ditch

Dear Alderman Hicks:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, there is an area in your ward where water runoff into a drainage ditch
has led to substantial flooding and erosion. The flooding and erosion have encroached upon private
residents' property to the point that it has eaten away at their yards, and several outbuildings on
the property are now in jeopardy of being destroyed.
Questions Presented
1. If the city of Booneville ("City") obtains the property owners' permission to enter their
property, may the City repair the drainage ditch to relieve the flooding and erosion?
2. May the City do so by providing labor, materials, and supplies, or if necessary, hiring an
outside company to repair the same?
Brief Response
1. Upon making the appropriate factual determinations, the City has the power under
Mississippi Code Annotated Section 21-19-13(2) to repair a drainage ditch on private
property to prevent erosion.
2. The City has the power to pay necessary expenses in providing labor, materials, and
supplies for repairs made pursuant to Section 21-19-13(2).

Applicable Law and Discussion
In regard to erosion caused by drainage ditches, creeks, or channels, Section 21-19-13(2) provides:
(2) The governing authorities of any municipality shall also have the power and
authority to incur costs and pay necessary expenses in providing labor, materials
and supplies to clean or clear drainage ditches, creeks or channels, whether on
public or private property, and to incur costs and pay necessary expenses in
providing labor, materials and supplies in order to prevent erosion where such
erosion has been caused or will be caused by such drainage ditches, creeks or
channels. This paragraph shall not impose any obligation or duty upon the
municipality and shall not create any additional rights for the benefit of any owner
of public or private property.
(emphasis added). See also MS AG Op., Holmes-Hines at *1 (Aug. 22, 2003) ("A city may perform
work on private property adjacent to the city right-of-way with the permission of the landowner to
correct unsafe conditions, i.e., erosion or sinkholes, or flooding, which were directly caused by the
way in which the municipality drained the city streets.").
Opinions of this office are issued on prospective questions of state law pursuant to Section 7-5-25.
We do not make factual determinations. Whether the issue referenced in your request involves a
drainage ditch, creek, or channel as specified in Section 21-19-13(2), and whether the damage
sought to be repaired is erosion as specified in that same Section are both factual determinations
to be made by the City, subject to judicial review, and are outside the scope of this opinion.
However, upon making the required factual determinations, it is the opinion of this office that the
City may make repairs to a drainage ditch on private property to prevent erosion.
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