Can a Mississippi utility district sell a perpetual easement for cell tower space on a water tank instead of just leasing it?

Plain-English summary

The Tunica County Utility District leases space on one of its elevated water tanks to a cellular company for an antenna. A third party offered to buy a perpetual easement covering that space, including an assignment of the existing lease, paying the District a lump sum up front instead of ongoing monthly rent. The District's chairman asked the Mississippi Attorney General whether the District could legally do this deal.

The answer, across four related questions, was largely no. First, prior AG opinions establish that while a utility district can hire a third party to solicit and manage communications-infrastructure leases, the actual final contracts have to be between the district and the users themselves, so assigning the existing lease away to a third party runs into that same rule. Second, the District's own enabling legislation (a 1996 local and private law) gives it general power to grant easements and contracts, but does not specifically authorize an extended-term or perpetual easement, unlike a separate provision in the same law that does expressly allow 20-year contracts for operating district facilities. Third, Mississippi common law bars a governing board from binding its successors in office by contract unless the law expressly allows it, making a perpetual commitment voidable by a future board. Fourth, nothing in the District's specific local legislation gives it any broader authority beyond what the general contracting clause already provides.

What this means for you

Utility districts and other special-purpose boards considering long-term infrastructure deals

The opinion holds that general contracting authority in enabling legislation does not automatically include authority for an extended-term or perpetual arrangement; look for language, like the District's own 20-year operations-contract clause, that specifically authorizes a long-term commitment, and if it is absent for the deal you are considering, the general common-law rule against binding successor boards likely applies.

Telecommunications companies negotiating cell-site easements on public infrastructure

The opinion confirms that a public utility district's final infrastructure contracts must be directly between the district and the actual user, so a purchase-and-assignment structure aimed at cutting the district out of the ongoing relationship faces the same legal obstacle that blocked a similar deal in a prior AG opinion.

Attorneys advising governing boards on contract term limits

The opinion applies Ne. Mental Health-Mental Retardation Comm'n v. Cleveland for the proposition that governing bodies, elected or appointed, cannot bind successors in office by contract absent express statutory authorization, and that an agreement violating this rule is voidable by a later board.

Common questions

Q: Can a public utility district sell a perpetual easement instead of leasing space?
A: Based on this opinion, not without specific statutory authorization. The District's general contracting power did not extend to an extended-term or perpetual easement, unlike a separate clause in its enabling law that does expressly authorize 20-year operating contracts.

Q: Can a government board commit its successors to a long-term or perpetual contract?
A: Generally no, under Mississippi common law, unless a statute expressly authorizes it. An agreement that improperly binds successor boards is voidable.

Q: Can a utility district assign its existing communications lease to a third-party buyer?
A: The opinion says no, consistent with prior AG opinions requiring that final contracts for use of government-owned infrastructure be directly between the district and the user, not routed through an assignee.

Q: Does hiring a third party to manage lease solicitations change the analysis?
A: Not for the final contract itself. The opinion confirms a district may hire a third party to solicit and manage such agreements, but the actual contracts still have to be between the district and the users.

Background and statutory framework

The Tunica County Utility District is a governing authority subject to Mississippi's public purchasing laws. Its powers come from Chapter 958 of the Local and Private Laws of 1996, as amended, which in Section 12(c) authorizes the District's Board of Commissioners to make contracts, conveyances, leases, and related agreements, and in Section 12(p) separately authorizes contracts of up to twenty years specifically for operating and maintaining District property. Mississippi common law, as applied in Ne. Mental Health-Mental Retardation Comm'n v. Cleveland, holds that governing bodies cannot bind their successors in office by contract unless expressly authorized by law, since doing so would take away the discretionary powers the law confers on later boards.

Citations and references

Statutes:
- Chapter 958, Local and Private Laws of 1996, as amended, Section 12(c), District's general contracting and easement authority
- Chapter 958, Local and Private Laws of 1996, as amended, Section 12(p), District's specific 20-year operations-contract authority

Cases:
- Ne. Mental Health-Mental Retardation Comm'n v. Cleveland, 187 So.3d 601 (Miss. 2016), governing bodies cannot bind successors absent express statutory authority

Prior AG opinions referenced: Logan (Aug. 23, 2013); Flanagan (Apr. 14, 2000); Dulaney (May 20, 2016)

Source

• Index page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2026/07/R.-Boykin-July-1-2026-Perpetual-Easement-on-Tunica-County-Utility-District-Elevated-Water-Tank.pdf

Original opinion text

July 1, 2026
Reginald Boykin
Chairman, Tunica County Utility District
986 Magnolia Street
Tunica, Mississippi 38676
Re:

Perpetual Easement on Tunica County Utility District Elevated Water Tank

Dear Mr. Boykin:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Tunica County Utility District ("District") owns and operates
various elevated water tanks as part of the overall infrastructure of the District. Some years ago,
the District entered a lease with a cellular communications company for space on one of the
elevated water tanks. The cellular company uses space on the elevated water tank for an antenna
and various other space for related equipment.
Recently, the District was approached by a third party who offered to purchase a perpetual
easement for the placement of antennas and associated communications infrastructure at one of
the District's elevated water tanks. This would include an assignment of the existing lease. The
District would be paid a lump sum fee at the closing, forego (via the assignment/easement) the
monthly lease payments in the future, and be entitled to a percentage of future/additional antennas
placed on the tank based on certain criteria.
Questions Presented
1. If the District has an appraisal and/or advertises the sale of an existing communications lease,
would the District have the authority to enter into a transaction whereby a lump sum would be
paid in exchange for an assignment of the existing lease?
2. Does the District have the authority to grant a perpetual easement for the location of
telecommunications infrastructure (similar to how it might grant an easement for an electric
utility)?
3. If the transaction is advertised and bids received, would the limitation of the Board to contract
beyond the term of office of the Board of Commissioners still present an issue?
4. Would the District being created under the local and private legislation give the District
broader authority to enter into the easement?
Brief Response
1. This office has previously opined that a contract with a third party to solicit and manage
agreements involving the placement of antennas or other communications infrastructure on a
government-owned water tower is a management-service contract exempt from public
purchasing statutes. MS AG Op., Logan at 2 (Aug. 23, 2013). While "the [district] may
contract with a third party to solicit and manage/oversee such contracts, the final contracts
must be between the [district] and the users." MS AG Op., Flanagan at 2 (Apr. 14, 2000).
2. Chapter 958, Local and Private Laws of 1996, as amended, Section 12(c) authorizes the
District, acting through its Board of Commissioners, "[t]o make and enter into contracts,
conveyances, deeds of trust, bonds, leases or contracts for financial advisory services." While
this language indicates that the District has the general authority to grant an easement, it does
not provide specific authority for an extended-term or perpetual easement. Further, regarding
the proposed easement specifically, please see responses to questions 1 and 3.
3. "Under the common law in Mississippi, governing bodies, whether they be elected or
appointed, may not bind their successors in office by contract, unless expressly authorized by
law," and an agreement that violates this rule is voidable. Ne. Mental Health-Mental
Retardation Comm'n v. Cleveland, 187 So.3d 601, 604 (Miss. 2016).
4. Please see response to question 2. Beyond this, nothing within the local and private legislation
creating and empowering the District gives the District broader authority to enter the proposed
easement.
Applicable Law and Discussion
You first ask if the District has an appraisal and/or advertises the sale of an existing
communications lease, would the District then have the authority to enter a transaction whereby a
lump sum would be paid in exchange for an assignment of the existing lease. You further explain
that you have reviewed the Logan opinion, which you understand to have turned on the transaction
moving forward without appraising and advertising. Regarding appraisals and advertising, this
office has previously opined that "[t]he Tunica County Utility District... falls within the definition
of a governing authority as described in Section 31-7-1 and is, therefore, subject to the public
purchasing laws." MS AG Op., Dulaney at 1 (May 20, 2016). But we have likewise opined that
a contract with a third party to solicit and manage agreements involving placement of antennas or
other communications infrastructure on a government-owned water tower is a managementservice contract exempt from public purchasing statutes. MS AG Op., Logan at 2.
The outcome in Logan was due to the requirement that "final contracts must be between the city
and the users," which prevented the municipality from assigning an existing communications lease
to a third party. MS AG Op., Logan at 2 (quoting MS AG Op., Flanagan at 2). The same is true
here. While "the [District] may contract with a third party to solicit and manage/oversee such
contracts, the final contracts must be between the [District] and the users." MS AG Op., Flanagan
at *2.
Your second question asks whether the District has the authority to grant a perpetual easement for
the location of telecommunications infrastructure. Relatedly, your third question asks whether the
Board may contract beyond the term of office of the Board of Commissioners. Chapter 958, Local
and Private Laws of 1996, as amended, Section 12(c) authorizes the District, acting through its
Board of Commissioners, "[t]o make and enter into contracts, conveyances, deeds of trust, bonds,
leases or contracts for financial advisory services." While this language indicates that the District
has the general authority to grant an easement, it does not provide specific authority for an
extended-term or perpetual easement. In contrast, other provisions within the District's local and
private legislation, such as Section 12(p), grant the Board of Commissioners specific authority to
enter certain extended-term contracts. See id. ("The [B]oard of [C]ommissioners may contract for
the operation and maintenance of any property or facilities of the [D]istrict for a term of up to
twenty (20) years.") Further, "[u]nder the common law in Mississippi, governing bodies, whether
they be elected or appointed, may not bind their successors in office by contract, unless expressly
authorized by law, because to do so would take away the discretionary rights and powers conferred
by law upon successor governing bodies." Ne. Mental Health-Mental Retardation Comm'n, 187
So.3d at 604. "[A]ny agreement that violates this rule is voidable by successor boards." Id. at 607.
Regarding your last question, please see above discussion regarding Section 12(c). Beyond this,
nothing within the local and private legislation creating and empowering the District gives the
District broader authority to enter the proposed easement.
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