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
You cannot pass a resolution declaring a blanket 40-foot easement along county roads. Even if the goal is sensible (clearer maintenance corridors, room for drainage and utilities), Mississippi law does not give counties that power. If the county wants a defined right-of-way, you have to acquire it the same way any other government acquires real property: dedication on a recorded plat, written deed, purchase, eminent domain proceedings under chapter 65, or by establishing a prescriptive easement through actual continuous use.
For each road segment where you want utilities or expanded maintenance, consider:
- Is there already a recorded easement? Check the chancery clerk's land records.
- Does the county hold a prescriptive easement from long-term, continuous, open maintenance? If so, document the elements and have the board enter findings on the minutes (the AG quotes its earlier Stockton opinion: the board "should determine whether prescription has occurred and spread such finding on its minutes").
- If neither, plan to acquire by deed, purchase, or eminent domain under § 65-18-13 (which mirrors the general acquisition framework).
If you are a property owner along a county-maintained road
A county cannot expand its right-of-way onto your land just by adopting a policy. If county crews start grading, ditching, or running utilities further onto your land than they have historically, you have grounds to push back. The county must either show a recorded easement, prove prescription (continuous, open, hostile, exclusive use for ten years), or initiate eminent domain.
Be aware that maintenance the county has been doing for over ten years can ripen into a prescriptive easement defined by what they actually did during that period. If they only ever mowed and graded, the prescriptive easement covers mowing and grading, not utility installations. The Mississippi Court of Appeals decision in Fratesi v. City of Indianola limits the scope of a prescriptive easement to the adverse use exercised during the prescription period.
If you are a utility operator (electric co-op, telecom, water authority)
Before installing inside a county road right-of-way, get explicit authorization from the board of supervisors and confirm the county actually has the property right it is granting. If the underlying easement is prescriptive and limited to maintenance, the county may not have the legal authority to authorize a wholly new use like underground fiber or a power line. Even if the county is fine with it, a private landowner adjacent to the road can challenge the installation if it exceeds the scope of the prescriptive easement. Section 77-5-155 expressly contemplates that power districts need consent of the political subdivision to use a county's easement; the same caution applies more broadly.
If you are a title attorney or developer doing due diligence
Do not assume a "county road" automatically carries a wide right-of-way. Mississippi counties hold whatever easement was actually acquired by deed, dedication, or prescription, and there is no statutory default width. When examining title or planning a development that abuts a county road, look for recorded plats, dedications, condemnation orders, or evidence of long, open county maintenance. The width recited in a county resolution is not authoritative.
Common questions
Q: My county passed a resolution declaring a 30-foot right-of-way along county roads. Is that enforceable against my land?
A: Based on this opinion, no, not as a property right. A county cannot acquire an easement just by declaring one. The county can only enforce a right-of-way it actually holds (by deed, dedication, eminent domain, or prescription). The resolution may reflect the county's claim about what its prescriptive easement looks like, but a court would still need to see proof of the underlying adverse use.
Q: What is a prescriptive easement and how does the county get one?
A: It is an easement acquired through long-term use, similar to adverse possession. The county must show continuous, open, notorious, hostile, exclusive, and peaceful use for at least ten years. Routine grading, mowing, ditching, and use of a strip of land for road purposes can qualify. The board of supervisors should formally find that prescription has occurred and put that finding in the meeting minutes.
Q: Can the county let a utility install lines in a prescriptive easement that was acquired only through road maintenance?
A: Only if installing utilities is within the scope of what the county was actually doing during the ten-year prescriptive period. The opinion is careful: the scope of a prescriptive easement is "defined by the adverse use exercised during the period of prescription." If the county only graded and ditched, a court could find utility installation exceeds that scope. If utilities have been routinely installed during the prescription period, the easement likely covers them.
Q: How does a county properly acquire a road right-of-way today?
A: Section 65-18-13 lists the lawful methods for the Local System Road Program: gift, purchase, deed, dedication, and eminent domain. Outside that program, the same methods apply, plus prescription based on actual long-term use.
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 provides another path. The Mississippi Court of Appeals confirmed 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 Mississippi Supreme Court's earlier decision in Logan v. McGee confirms that "prescriptive right-of-way easement" is a valid form of easement.
The catch is scope. Fratesi v. City of Indianola holds that the scope of a prescriptive easement is "defined by the adverse use exercised during the period of prescription." So a road-maintenance prescriptive easement does not automatically cover utility corridors unless utilities were actually being run through that strip during the ten-year window.
The opinion also reminds counties that authorizing third parties (utilities, contractors) to use the county's right-of-way is a separate question from the county's own power. Section 77-5-155 illustrates this: a power district can use a county's easement only with the political subdivision's consent. Even when the county clearly holds an easement, granting access to others is a deliberate act that should be evidenced by a written agreement.
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. § 65-18-3 (Local system road definition)
- Miss. Code Ann. § 7-5-25 (AG opinion authority)
- Miss. Code Ann. § 77-5-155 (Power districts and use of rights-of-way)
Cases:
- Logan v. McGee, 320 So. 2d 792 (Miss. 1975) (recognizing prescriptive right-of-way easement)
- 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
-
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?
-
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
-
There is no statutory authority for counties to unilaterally designate a 40-foot right-of-way easement along county roads.
-
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