MS 2024-10-2024-00113-Hicks September 17, 2024

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

Short answer: Yes. Section 21-19-13(2) authorizes a Mississippi municipality to provide labor, materials, and supplies to clean drainage ditches and prevent erosion on public or private property, after the city makes the required factual determinations. The statute does not impose any new municipal duty or create new rights for property owners.

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 AG opinions are persuasive authority but not binding precedent.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 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

You have express statutory authority to fund and perform drainage-ditch cleaning and erosion-prevention work on private property. The procedural elements: get the owner's permission to enter the property; make findings on the minutes that the affected feature is a drainage ditch, creek, or channel within Section 21-19-13(2); confirm the damage is erosion caused (or going to be caused) by that feature; then do the work either with city crews and equipment or with a contractor. The statute is a permission, not a mandate, so the city's decision is discretionary. There is no new statutory duty being created, and the statute does not give any property owner a right to demand the work.

For homeowners with drainage and erosion damage

A Mississippi city can choose to repair drainage problems that originate on its right-of-way or that affect private property near city infrastructure, but the statute is permissive. The city is not required to do the work, and the statute does not give you a legal right to insist it does. The practical path: document the damage, identify the drainage feature causing it (ditch, creek, channel), give written consent for the city to enter, and present it to the council or board of aldermen with a request to use Section 21-19-13(2) authority.

For city attorneys

The opinion routes back to MS AG Op., Holmes-Hines (Aug. 22, 2003), which framed the same authority a bit differently: "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 formulation tied the authority to drainage caused by city streets; the current opinion reads Section 21-19-13(2) more broadly. Both readings rely on the statute's "public or private property" language. Document your findings.

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 read it more narrowly in the context of street drainage. The 2024 Hicks opinion does not draw that line. The practical takeaway is that the broader the work strays from the public drainage system, the more important it becomes to document the link between the drainage feature and the erosion at issue.

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