Can a Mississippi county unilaterally declare a 40-foot right-of-way along all county-maintained roads so it can grade, drain, and run utilities through it?

Plain-English summary

Coahoma County asked whether it could simply declare a uniform 40-foot right-of-way (20 feet on each side of the centerline) along every county-maintained road so it could grade, drain, repair, and let utilities run through that strip. The Attorney General said no. There is no statute that lets a county manufacture an easement by declaration. Every right-of-way has to be acquired the way property rights are normally acquired: by gift, purchase, deed, dedication, eminent domain, or prescription.

The opinion also addressed the follow-up question about prescriptive easements (rights the county has earned through long-term, open use). If the board of supervisors finds and records that the county actually holds a prescriptive easement, it can authorize utility installations within the legal scope of that easement. The scope is set by the historical adverse use, not by the county's preferences, and a county's claim that it has a prescriptive right has to be supported by the same six elements as a successful adverse possession claim.

What this means for you

If you are a county board of supervisors or county engineer

The opinion holds that there is no statutory authority for a county to unilaterally designate a 40-foot (or any uniform) right-of-way easement along county roads. Any right-of-way must be acquired in a manner provided by law, including gift, purchase, deed, dedication, and eminent domain (Section 65-18-13). Where the county holds a legitimate prescriptive easement, the opinion holds that it may permit utility installation if the board of supervisors determines the work falls within that easement's scope, and that the board "should determine whether prescription has occurred and spread such finding on its minutes" (quoting MS AG Op., Stockton (July 27, 2007)).

If you are a property owner along a county-maintained road

The opinion holds that a county cannot designate or expand a right-of-way easement unilaterally; the interest must be acquired by gift, purchase, deed, dedication, eminent domain, or prescription. A prescriptive easement requires the same six elements as adverse possession, proven over ten years, and under Fratesi v. City of Indianola its scope is "defined by the adverse use exercised during the period of prescription."

If you are a utility operator (electric co-op, telecom, water authority)

The opinion holds that whether utilities may be installed within a prescriptive easement depends on whether that use falls within the easement's scope, which is a factual determination for the board of supervisors. It also notes that authority is typically necessary for another entity to use a county's right-of-way; Section 77-5-155 requires a power district to obtain the consent of the political subdivision before using the county's easement.

If you are a title attorney or developer doing due diligence

The opinion holds that there is no statutory default right-of-way width for county roads. A county holds only the easement it actually acquired by gift, purchase, deed, dedication, eminent domain, or prescription, and a county resolution cannot by itself create or widen an easement.

Common questions

Q: Can a county establish a 40-foot right-of-way along all its roads by resolution?
A: No. The AG says the county has no statutory authority to designate a blanket 40-foot easement unilaterally. A right-of-way must be acquired as provided by law; if the county claims prescription, the board should determine whether it occurred and record the finding in its minutes.

Q: What is a prescriptive easement and how does the county get one?
A: The opinion quotes Webb v. Mearns that a prescriptive easement requires the same elements as adverse possession, including continuous and uninterrupted use for ten years. It does not decide whether particular maintenance activities establish those elements. The board of supervisors should determine whether prescription occurred and record its finding in the minutes.

Q: Can the county let a utility install lines in a prescriptive easement that was acquired only through road maintenance?
A: Yes, if the board of supervisors determines that the utility work falls within the scope of a legitimate prescriptive easement held by the county. The opinion quotes Fratesi that the scope is "defined by the adverse use exercised during the period of prescription," but does not require prior utility installation as a separate condition.

Q: How does a county properly acquire a road right-of-way today?
A: The opinion says any designated right-of-way easement must be acquired as provided by law. It quotes Section 65-18-13's list for Local System Road Program projects: gift, purchase, deed, dedication, and eminent domain. It also analyzes the possibility of a prescriptive easement.

Q: Does this mean the county cannot maintain its roads?
A: Not at all. The county still has full authority over public roads under § 65-7-1(1). It just cannot expand the physical scope of the easement by declaration. Within whatever right-of-way it actually holds (by any of the recognized acquisition methods), the county can grade, drain, and repair.

Background and statutory framework

Mississippi counties are creatures of statute. Under Miss. Code Ann. § 65-7-1(1), the board of supervisors has "full jurisdiction over all matters relating to the public roads of the county," but that jurisdiction operates inside the easements the county actually holds. The legislature wrote a specific acquisition procedure into § 65-18-13 for Local System Road Program projects: easements must be obtained "in the manner provided by law for the acquisition of rights-of-way, including gift, purchase, deed, dedication and eminent domain." That list is the standard menu for any government taking a property interest in real estate.

Where the county has used a strip of land long enough, prescription may provide another path. The Mississippi Court of Appeals said in Webb v. Mearns that a prescriptive easement requires the same elements as adverse possession: claim of ownership; actual or hostile possession; open, notorious, and visible use; continuous and uninterrupted use for ten years; exclusive use; and peaceful use.

The scope question remains factual. Fratesi v. City of Indianola says the scope of a prescriptive easement is "defined by the adverse use exercised during the period of prescription." The AG concludes that the county may permit utility work if the board determines it falls within the scope of the county's legitimate easement. It does not decide the scope of Coahoma County's particular easement.

The opinion also notes that another entity typically needs authority to use a county right-of-way. It quotes Section 77-5-155 as an example requiring a political subdivision's consent for a power district to use its easement.

Citations and references

Statutes:

• Miss. Code Ann. § 65-7-1 (Board of supervisors' jurisdiction over public roads)
• Miss. Code Ann. § 65-18-13 (Acquisition of rights-of-way)
• Miss. Code Ann. § 7-5-25 (AG opinion authority)
• Miss. Code Ann. § 77-5-155 (Power districts and use of rights-of-way)

Cases:

• Webb v. Mearns, 944 So. 2d 917 (Miss. Ct. App. 2006) (elements of prescriptive easement)
• Keener Props., LLC v. Wilson, 912 So. 2d 954 (Miss. 2005) (adverse possession elements)
• Fratesi v. City of Indianola, 972 So. 2d 38 (Miss. Ct. App. 2008) (scope of prescriptive easement)

Prior AG opinion:

• MS AG Op., Stockton (July 27, 2007) (board of supervisors must determine and record prescription findings)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2026/04/S.-Brandon-April-16-2026-Authority-to-Designate-and-Utilize-Right-of-Way-Along-Roads-Maintained-by-Coahoma-County.pdf

Original opinion text

April 16, 2026

Stephen Brandon, Esq.
Attorney, Coahoma County Board of Supervisors
Post Office Box 579
Clarksdale, Mississippi 38614

Re: Authority to Designate and Utilize Right-of-Way Along Roads Maintained by Coahoma County

Dear Mr. Brandon:

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

Background

According to your request, Coahoma County (the "County") seeks general guidance for a potential uniform 40-foot right-of-way easement designation along all county roads to facilitate safe access for county maintenance and utilities.

Questions Presented

1. Does the County have the authority under Mississippi law to designate a 40-foot right-of-way easement along all county roads that it maintains, for the purposes of road maintenance and utilities access? For example, may the County assert that it maintains a 40-foot right-of-way easement (typically 20 feet on each side of the road centerline) for activities such as grading, drainage improvements, repairs, and the installation or maintenance of utilities by authorized public or private entities?

2. If the County has acquired a prescriptive right-of-way easement for maintenance purposes that extends beyond any designated blanket right-of-way easement (e.g., through continuous public use and maintenance for the statutory period), may the County permit utilities to be installed or maintained within that prescriptive easement?

Brief Response

1. There is no statutory authority for counties to unilaterally designate a 40-foot right-of-way easement along county roads.

2. The County may permit utilities to be installed if the board of supervisors determines that such work falls within the scope of a legitimate prescriptive right-of-way easement held by the County.

Applicable Law and Discussion

Mississippi Code Annotated Section 65-7-1(1) generally provides "[t]he board of supervisors of each county" with "full jurisdiction over all matters relating to the public roads of the county." However, there is no statutory authority allowing counties to unilaterally designate a 40-foot right-of-way easement along all county roads for any purpose, including but not limited to the purposes of road maintenance and utilities access. Any designated right-of-way easement must be acquired in a manner provided for by law. See Miss. Code Ann. § 65-18-13 ("All rights-of-way and adjustments for utilities necessary for Local System Road Program projects must be acquired or performed by the boards of supervisors in the manner provided by law for the acquisition of rights-of-way, including gift, purchase, deed, dedication and eminent domain.").

You next ask if the County may permit utilities to be installed or maintained within a prescriptive right-of-way easement when the prescriptive easement was acquired for maintenance purposes. In short, yes, the County may permit utilities to be installed if the board of supervisors determines that such work falls within the scope of a legitimate prescriptive easement held by the County.

"A prescriptive easement requires the same elements to be proven as does a successful claim for adverse possession." Webb v. Mearns, 944 So. 2d 917, 920 (Miss. Ct. App. 2006). That is, "the evidence must show that possession is: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Id. (quoting Keener Props., LLC v. Wilson, 912 So. 2d 954, 956 (Miss. 2005)). Ultimately, "[t]he board of [supervisors] should determine whether prescription has occurred and spread such finding on its minutes." MS AG Op., Stockton at *1 (July 27, 2007).

Assuming the County holds a legitimate prescriptive easement, the scope of such easement "is defined by the adverse use exercised during the period of prescription." Fratesi v. City of Indianola, 972 So. 2d 38, 43 (Miss. Ct. App. 2008). Therefore, whether the County may permit utilities to be installed or maintained within a prescriptive right-of-way easement for maintenance is dependent upon the determined scope of such easement, which is a determination of fact to be made by the board of supervisors. See Miss. Code Ann. § 7-5-25 (authorizing the Attorney General to opine upon prospective matters of state law only).

Finally, your request does not make clear whether the subject utility installation would be done by the County or by another entity. Please note that authority is typically necessary for another entity to use a county's right-of-way easement. See, e.g., Miss. Code Ann. § 77-5-155 ("Any [power] district created pursuant to this article shall have the power: . . . (i) To use any right of way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a utility, held by the state or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use.").

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