Can a Mississippi property owner block a public alley with a fence, and what can the city do?
Plain-English summary
A property owner inside the Town of Georgetown built a privacy fence that, according to a 1910 plat map of Block 26 recorded with the Copiah County Chancery Clerk's Office, runs across an alley on the town's public right-of-way. The town notified the owner, showed the owner the plat, and the owner kept the fence. The mayor asked the AG three questions: what is a public right-of-way, can an owner permanently block one, and what can the town do?
The AG answered cleanly. A public right-of-way is the public's right of passage on roads, freeways, and similar thoroughfares. Black's Law Dictionary's definition tracks Mississippi practice. In Mississippi, "easement" and "right-of-way" are used interchangeably for an interest in land, with "right-of-way" typically describing a strip used for public transportation or utilities.
A platted public road, alley, or other public way is presumptively dedicated to public use under Mississippi law. Briel v. City of Natchez (1873) is the foundational case. Section 21-19-63 codifies the dedication rule for plats approved by municipal authorities: "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." Acceptance can be by formal municipal act or implied from circumstances (Luter v. Crawford, 1957).
A property owner cannot permanently obstruct a municipality's right-of-way. Gaw v. City of Holly Springs (1956) affirmed an order requiring removal of a fence from a public alley where the city held an easement; Brown v. City of Gulfport (1994) affirmed an order requiring removal of a building obstructing a public sidewalk. The specific remedy the town pursues, the AG said, is within the discretion of its governing authorities and their attorney. By analogy to county practice, the AG noted that a county board of supervisors "is authorized to take whatever action necessary to maintain the public right-of-way," including ordering removal at the landowner's expense after the appropriate findings.
Whether the fence in fact obstructs the town's right-of-way (and whether the right-of-way was properly dedicated and accepted) are factual questions the town's governing authorities resolve, subject to court review.
What this means for you
For mayors and city attorneys
Document three things before pursuing removal: (1) The plat or other evidence showing the alley is in fact a dedicated public right-of-way (the 1910 plat in this case fits Section 21-19-63's framework). (2) The town's acceptance, formal or implied. (3) The factual finding that the fence obstructs the right-of-way. With those in place, Mississippi cases including Gaw and Brown support a court order requiring removal. The town can also issue notice and demand voluntary removal first, with litigation as a backup if the owner refuses.
The county-side opinion (MS AG Op., Snowden, May 23, 2014) describes a workable pattern: the board makes a factual finding that the obstruction adversely affects the right-of-way or is a safety hazard, and then requests the owner remove it at the owner's expense. The same approach should fit the municipal context.
For property owners with structures near alleys, sidewalks, or platted public ways
A platted public alley or roadway is dedicated public property even if the structure has been there a long time. You generally cannot resolve the issue by claiming adverse possession against the public. If a city presents you with a plat showing your fence on the public right-of-way, the legal posture is unfavorable; voluntary removal often saves litigation cost.
For real estate attorneys at closings
Title diligence on properties near alleys, sidewalks, or right-of-way strips should include a check of recorded plats. A buyer who inherits a fence that crosses a dedicated public right-of-way may be ordered to remove it, even if no enforcement has occurred for decades.
For city engineers
Recorded plats, even ones from 1910, are still operative for dedication purposes. When a question of right-of-way arises, the chancery clerk's records are where you start.
Common questions
What is a public right-of-way?
"The right of passage held by the public in general to travel on roads, freeways, and other thoroughfares." Black's Law Dictionary (12th ed. 2024). In Mississippi, "easement" and "right-of-way" are often used interchangeably to describe an interest in land used for public transportation or utilities.
How does a road or alley become a public right-of-way?
Several ways, but Section 21-19-63 is the central statute for plat dedication. When a map or plat of a subdivision is submitted to and approved by municipal authorities, "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." Acceptance by the public body is required and can be formal or implied. Luter v. Crawford, 92 So. 2d 348 (Miss. 1957).
Can a property owner permanently block a public right-of-way?
No. Gaw v. City of Holly Springs, 87 So. 2d 909 (Miss. 1956) (Mississippi Supreme Court, "So. 2d" reporter), affirmed an order requiring property owners to remove a fence and enjoining them from further obstructing an alley in which the municipality held an easement for public travel. Brown v. City of Gulfport, 57 So. 2d 290 (Miss. 1994), affirmed an order requiring a property owner to remove a building obstructing a public sidewalk.
What action can the town take?
The AG says it is within the discretion of the governing authorities, advised by their attorney. Common pathways are notice to the owner, demand for voluntary removal, and, if necessary, a court order requiring removal (potentially at the owner's expense if a safety or right-of-way obstruction finding is made).
Does the town have to prove the right-of-way was accepted?
Yes, but acceptance can be inferred from sufficient circumstances. Luter, 92 So. 2d at 352. Long-term public use of a platted alley, the city's maintenance of it, or a formal municipal act are all paths to acceptance.
Who decides whether the fence actually obstructs the right-of-way?
The town's governing authorities make the factual determination, subject to judicial review. The AG cannot make factual determinations.
Background and statutory framework
Section 21-19-63, plat dedication. "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."
Briel v. City of Natchez, 48 Miss. 423, 436 (1873). Plat of a public road or highway presumptively creates an easement for public use.
Luter v. Crawford, 92 So. 2d 348 (Miss. 1957). Acceptance of a public right-of-way may be either by formal act of the local municipal authority or implied from sufficient circumstances.
Gaw v. City of Holly Springs, 87 So. 2d 909 (Miss. 1956). Affirmed removal of fence obstructing a public alley.
Brown v. City of Gulfport, 57 So. 2d 290 (Miss. 1994). Affirmed removal of building obstructing a public sidewalk.
MS AG Op., Snowden (May 23, 2014). County board of supervisors has authority to take "whatever action necessary to maintain the public right-of-way," including ordering removal of an obstruction at the landowner's expense.
Citations
- Miss. Code Ann. § 21-19-63
- Briel v. City of Natchez, 48 Miss. 423 (1873)
- Luter v. Crawford, 92 So. 2d 348 (Miss. 1957)
- Gaw v. City of Holly Springs, 87 So. 2d 909 (Miss. 1956)
- Brown v. City of Gulfport, 57 So. 2d 290 (Miss. 1994)
- MS AG Op., Baskin (Oct. 17, 1997)
- MS AG Op., Waits (July 9, 1979)
- MS AG Op., Snowden (May 23, 2014)
- MS AG Op., Barton (May 17, 2021)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/12/R.-DuBose-November-8-2024-Obstruction-to-Public-Right-of-Way.pdf
Original opinion text
November 8, 2024
The Honorable Russ DuBose
Mayor, Town of Georgetown
Post Office Box 138
Georgetown, Mississippi 39078
Re:
Obstruction to Public Right-of-Way
Dear Mayor DuBose:
The Office of the Attorney General has received your request for an official opinion.
Background
A property owner in the city limits of Georgetown ("Town") has erected a privacy fence that
obstructs a public right-of-way through an alley. The Town has notified the property owner of the
obstruction and submitted to him an official plat map of Block 26 in the Town, filed of record in
the Copiah County Chancery Clerk's Office on August 1, 1910, and recorded in Plat Book A at
pages 39-40, delineating his property line and the Town's public right-of-way in the alley.
Questions Presented
1. What is the definition of a public right-of-way?
2. Can a property owner permanently obstruct a public right-of-way without the approval of
the governing authorities?
3. If not, what action can the Town take to remedy the obstruction?
Brief Response
1. A public right-of-way is "[t]he right of passage held by the public in general to travel on
roads, freeways, and other thoroughfares." Right-of-Way, BLACK'S LAW DICTIONARY (12th
ed. 2024).
2. A property owner cannot permanently obstruct a public right-of-way.
- What action the Town can take to remedy the obstruction is ultimately within the discretion
of the governing authorities of the Town based on the advice and counsel of their attorney.
Applicable Law and Discussion
A public right-of-way is "[t]he right of passage held by the public in general to travel on roads,
freeways, and other thoroughfares." Right-of-Way, BLACK'S LAW DICTIONARY (12th ed. 2024).
Further, "[u]nder Mississippi law, the terms easement and right-of-way are used interchangeably
to refer to an interest in land[,]" and "the term right-of-way typically describes a strip of land used
for public transportation by rail or road or for public utilities.") 7 MS PRAC. ENCYCLOPEDIA MS
LAW § 60:2 (3d ed.).
For your general guidance, the platting of a public road or highway may presumptively create an
easement for public use. Briel v. City of Natchez, 48 Miss. 423, 436 (1873).
Mississippi Code Annotated Section 21-19-63 provides in pertinent part:
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 . . . .
(emphasis added).
"When approval of a map or plat is given pursuant to Section 21-19-63, the platted streets, roads,
alleys, and other public ways set forth and shown are thereby dedicated to public use." MS AG.
Op., Baskin at 1 (Oct.17, 1997) (citing MS AG Op., Waits (July 9, 1979)). Additionally, in order
for a public right-of-way to be acquired by dedication, there must be an acceptance, but "such
acceptance may occur 'either by the formal act of the local municipal authority, or it may be
inferred or implied by sufficient circumstances.'" Luter v. Crawford, 92 So. 2d 348, 352 (Miss.
1957) (citing Briel, 48 Miss. at 436).
In the specific context of your request, the Town's public right-of-way is presumed to be the right
to enter and use the alley connecting two public streets as designated by the official plat map of
Block 26, filed August 1, 1910, with the Copiah County Chancery Clerk's Office. However, the
question of whether the right-of-way was dedicated to and accepted by the Town turns on a factual
determination which is to be made by the governing authorities of the municipality, subject to
review by a court of competent jurisdiction. MS AG Op., Barton at 1 n.2 (May 17, 2021)
(identifying questions of fact as one of various kinds of questions that cannot be addressed by
official opinion).
A private property owner cannot permanently obstruct a municipality's right-of-way. Gaw v. City
of Holly Springs, 87 So. 2d 909, 914 (Miss. 1956) (affirming chancellor's order requiring property
owners to remove a fence and enjoining them from further obstructing an alley in which the
municipality held an easement for public travel); Brown v. City of Gulfport, 57 So. 2d 290, 294
(Miss. 1994) (affirming chancellor's order requiring property owner to remove his building
obstructing public sidewalk).
What action the Town can take to remedy the obstruction is ultimately within the discretion of the
governing authorities of the Town based on the advice and counsel of their attorney.
However, regarding a county right-of-way, we have previously opined that a county board of
supervisors "is authorized to take whatever action necessary to maintain the public right-of-way,
and the landowner is prohibited from taking any action which obstructs or adversely affects the
right[-]of[-]way." MS AG Op., Snowden at 2 (May 23, 2014). In that same opinion, we stated the
following:
[I]f the board of supervisors makes a factual finding that a concrete wall is an obstruction
to a public right-of-way, adversely affects the right-of-way, or constitutes a safety hazard
on the right[-]of[-]way, the Board of Supervisors may request the landowner remove the
portion of the wall that is adversely affecting the right-of-way at his own expense.
Id. at 1. Ultimately, whether a particular property owner's fence has indeed obstructed the Town's
right-of-way is a factual determination that must be made by the Town and upon which our office
cannot opine. See MS AG Op., Barton at *1 n. 2.
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/ Caleb A. Pracht
Caleb A. Pracht
Special Assistant Attorney General