When a Mississippi subdivision plat dedicates roads "to public use" and the city approves it, are those roads public even if the city never formally accepted them?

Plain-English summary

A subdivision in the City of Senatobia had its final plat approved by the Senatobia Board of Aldermen and filed with the Tate County Chancery Clerk in 2007. The plat included this language: "the road rights of way and easements as shown hereon to public use forever." The plat was missing the city engineer's signature, the city minutes had no formal "acceptance" of the road dedication, and the roads were not on the tax rolls as public streets.

Years later, the city's attorney asked three questions: are these roads public? can a public road be maintained by a private homeowners association? and is the plat invalid because the city engineer never signed it?

The AG's answers:

1. Yes, the roads are public. Section 21-19-63 says when a municipality approves a subdivision plat and the plat shows streets, roads, alleys, or other public ways, those public ways "shall be thereby dedicated to the public use." That is statutory dedication. It happens at the moment of plat approval. No separate "acceptance" by the city is required. The Mississippi Supreme Court in Nettleton Church of Christ v. Conwill (1997) confirmed that a statutory dedication operates as a grant and vests fee simple title in the municipality.

2. The city must maintain the roads. Once roads are public, the city has a duty to keep them in reasonably safe condition. The city cannot delegate that duty to a homeowners association or developer. But, per a long line of opinions, the city may accept work or materials as a donation from a private party, performed under the city's supervision. So the HOA can pave or repair, but only with the city's blessing and oversight.

3. The missing engineer signature does not invalidate the plat. Section 19-27-23 requires plats to be signed by the proprietor and the surveyor. It does not require an engineer's signature. So the plat is valid, the dedication is valid, and the roads are public.

The practical upshot under the opinion: the subdivision's roads were public from the 2007 approval and filing of the plat, even though they were not on the tax rolls as public streets and the minutes recorded no formal acceptance. To change that status, the city would have to vacate or abandon the plat "in the manner provided by law."

What this means for you

For Mississippi cities and city attorneys

Under the opinion, once the board approves a subdivision plat that shows roads dedicated to public use and the plat is filed with the chancery clerk, § 21-19-63 dedicates those roads to public use; no separate formal acceptance is required. Because the Mississippi Supreme Court has held statutory dedication "operates as a grant and vests fee simple title in the municipality" (Nettleton Church of Christ v. Conwill), the city holds the road in fee simple, and "the public good demands that a municipality maintain its streets in a reasonably safe condition" (Baskin). The dedication remains until the plat "is vacated in the manner provided by law."

For homeowners associations and subdivision residents

If the plat dedicates the roads to public use and the city approved it, the opinion treats the roads as public. The city, not the HOA, holds the maintenance duty, which it "has no authority to surrender." A private party (such as an HOA or developer) may donate work or materials on a public street "to be performed under the supervision and control of the governing authorities," but that does not shift the legal ownership or the city's duty.

For subdivision developers

The opinion ties the result to the plat language and the city's approval: the plat at issue stated the owners "dedicate the road rights of way and easements as shown hereon to public use forever," and once the board approved it and it was filed, § 21-19-63 dedicated the roads to public use, "notwithstanding that said streets . . . have not been actually opened for the use of the public."

For chancery clerks recording plats

The opinion quotes § 21-19-63: where a municipality has adopted such an ordinance, "no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities." On signatures, § 19-27-23 requires the plat to be signed by the proprietor and the surveyor; the AG concluded the absence of the city engineer's signature "does not render the document invalid," because the statute "imposes no mandate that the map or plat be signed by the engineer."

For homebuyers in Mississippi subdivisions

The opinion's practical point is that a road's legal status can differ from who has been maintaining it. In this case the roads were not on the tax rolls as public streets and the city minutes showed no formal acceptance, yet the AG concluded the roads were public from the approval and filing of the plat. The plat language and the city's approval, not the city's later conduct, determined the status.

Common questions

Q: What if the plat says "dedicate to public use" but the city never recorded it?
A: Section 21-19-63 says dedication happens upon approval AND filing. If the plat was approved but never filed, the dedication may not have completed. The opinion's facts had a plat approved AND filed in 2007, so dedication was complete.

Q: Can the city refuse to take responsibility for roads it never planned to maintain?
A: No. Once the dedication completes, the city has a duty to maintain. The Mississippi Supreme Court in Town of Senatobia v. Dean (1930) said a municipality "has no authority to surrender any jurisdiction or authority conflicting with its duty to keep streets in reasonably safe condition." The city can only get out of that duty by formally vacating or abandoning the plat under statute.

Q: Can the city undo the dedication if it just approved one and now realizes it does not want the road?
A: Yes, but only through the formal vacation or abandonment procedure. Section 21-19-63 says the dedicated public ways "shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law." Other Mississippi statutes set the vacation procedure. The mere fact that the city has not maintained the road or has not added it to its road list does not undo the dedication.

Q: What if the HOA has been maintaining the road for years?
A: Under the opinion, a private party may donate work or materials on a public street, performed under the city's supervision and control. That does not change the legal ownership or the city's maintenance duty.

Q: Does the city own the road in fee simple, or just an easement?
A: Fee simple, for a statutory dedication. The opinion quotes Nettleton Church of Christ v. Conwill: "a common law dedication creates a mere easement, but in a statutory dedication, which operates by way of a grant, the fee is in the public." A § 21-19-63 dedication is statutory.

Q: What if the developer intended the roads to be private?
A: The opinion turned on the plat language and the city's approval. The plat here dedicated the roads "to public use forever," and once it was approved and filed, § 21-19-63 made them public. The opinion did not weigh subjective developer intent against that language.

Q: What statute does this opinion apply?
A: It applies § 21-19-63, which governs statutory dedication when a municipality approves a subdivision plat, and § 19-27-23, which sets the required plat signatures. The opinion concerned a subdivision within the city limits of Senatobia.

Background and statutory framework

Mississippi recognizes three ways public roads come into being: dedication, prescription, and statutory procedures. The 2021 opinion addresses dedication. Within dedication, there are two subtypes:

Common law dedication: An owner offers land for public use, the public accepts (often by use), and the result is a public easement. The owner retains the underlying fee. The Mississippi Supreme Court has analyzed common law dedication in McBroom v. Jackson Cnty. (2014).

Statutory dedication: Created by specific statute, typically through plat approval and recording. The result is more than an easement: a grant in fee simple to the public. Section 21-19-63 is the operative statute for Mississippi municipal subdivision plats.

The text of Section 21-19-63 is unusually direct. It says that when a plat 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, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public."

The "notwithstanding" clause matters. It tells you the dedication is complete even if the road has not been built, opened, paved, or used. The act of plat approval is sufficient.

The Nettleton Church of Christ case (a 1997 Mississippi Supreme Court decision) is the source for the fee-versus-easement distinction the opinion uses: statutory dedication "operates by way of a grant, [and] the fee is in the public," whereas a common law dedication "creates a mere easement."

The Town of Senatobia v. Dean case (a 1930 Mississippi Supreme Court decision), cited through the AG's Carnathan opinion, is the source of the "no surrender of jurisdiction" rule: "A municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep streets in reasonably safe condition." The AG paired that with the rule (Carnathan, Hammack) that a municipality may accept donated work or materials on a public street performed under its supervision and control.

The plat-signature question is governed by Section 19-27-23, which lists what must be on a plat. Required signatures: the proprietor and the surveyor. The AG opinion notes that the city engineer's signature is not statutorily required, so its absence does not invalidate the plat.

Citations and references

Statutes:

• Miss. Code Ann. § 21-19-63, statutory dedication on municipal plat approval
• Miss. Code Ann. § 19-27-23, required contents and signatures on a plat

Cases:

• Nettleton Church of Christ v. Conwill, 707 So. 2d 1075 (Miss. 1997), statutory dedication operates as grant; fee in public
• McBroom v. Jackson Cnty., 154 So. 3d 827 (Miss. 2014), defining common law dedication
• Town of Senatobia v. Dean, 127 So. 773 (Miss. 1930), municipality cannot surrender duty to keep streets safe

Prior AG opinions:

• MS AG Op., Thomas (Feb. 28, 2014), public roads established by dedication, prescription, or statute
• MS AG Op., Purdie, common law versus statutory dedication
• MS AG Op., Baskin (Oct. 17, 1997), municipal duty to maintain dedicated streets
• MS AG Op., Carnathan, donation of work or materials by private parties
• MS AG Op., Hammack (Apr. 3, 1998), same

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/G.-Miller-June-23-2021-Public-Road.pdf

Original opinion text

June 23, 2021

Ginger M. Miller, Esq.
Attorney for City of Senatobia
Post Office Box 50
Senatobia, Mississippi 38668

Re: Public Road

Dear Ms. Miller:

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

Background

According to your request, the final plat of a subdivision located within the city limits of Senatobia was approved by the Senatobia Board of Aldermen (the "Board") and filed with the Tate County Chancery Clerk in 2007. The plat was filed without the signature of the City Engineer. In the Certification section of the plat, the owners stated that they "dedicate the road rights of way and easements as shown hereon to public use forever." You state that there was no other formal dedication of the roads, and the roads are not listed on the tax rolls as public streets. In a telephone conversation, you stated that there was no "formal acceptance" of the "dedication" documented on the municipal minutes.

Questions Presented

1. Is the notation on the plat dedicating "road rights of way and easements" to public use sufficient to classify the streets in the subdivision as public?
2. Can a road be dedicated to the public but still maintained by a homeowners' association or developer?
3. Is the plat null and void due to the city engineer not signing off on it?

Brief Response

1. Since the plat was approved by the Board and filed with the Chancery Clerk, pursuant to Mississippi Code Annotated Section 21-19-63, the roads of the subdivision are public.

2. If the roads were made public, the city has a duty to maintain such roads for the public good, and a municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep streets in reasonably safe condition. However, a municipality may accept, as a donation or gratuity, work and/or materials on a public street by a private individual to be performed under the supervision and control of the governing authorities.

3. No. Section 19-27-23, governing the required contents of maps and plats, does not require the engineer's signature.

Applicable Law and Discussion

"Public roads are established by dedication, prescription or by statutory procedures established by law." MS AG Op., Thomas at 2 (Feb. 28, 2014). Dedication is "the setting aside of land for public use." MS AG Op., Purdie at 1 (quoting McBroom v. Jackson Cnty., 154 So. 3d 827, 832 (Miss. 2014)). The two types of dedication are common law and statutory, the latter governed by specific statutes. Purdie at *1. The Mississippi Supreme Court has held that a common law dedication creates a mere easement, but in a statutory dedication, which operates by way of a grant, the fee is in the public. Nettleton Church of Christ v. Conwill, 707 So. 2d 1075, 1076 (Miss. 1997).

Section 21-19-63 controls statutory dedication and provides, in part, that:

[t]he governing authorities of municipalities may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county. Where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. 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, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public.

Miss. Code Ann. § 21-19-63 (emphasis added). From this statutory language, it is clear that upon the board's approval of the plat, "all streets, roads, alleys, and other public ways set forth and shown" on the plat or map shall be dedicated to public use. Id.

You state that the final plat of the subdivision was approved by the Board and filed with the chancery clerk. Thus, the streets, roads, alleys, and other public ways have been dedicated to the public use and will remain public until such time as the plat or map is vacated or abandoned in a manner provided by law. Because the Supreme Court of Mississippi has held that statutory dedication operates as a grant and vests fee simple title in the municipality, Nettleton Church of Christ, 707 So. 2d at 1076, there is nothing further required to make the subdivision streets public.

Your second question asks whether a road dedicated to the public can be maintained by a homeowners' association or developer. "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. . . [and] [t]hereafter, the public good demands that a municipality maintain its streets in a reasonably safe condition, free from obstructions and other impediments to their safe usage." MS AG Op., Baskin at 1 (Oct. 17, 1997). The City of Senatobia's duty to maintain the streets flows from the statutory dedication of the subdivision streets. "A municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep streets in reasonably safe condition." MS AG Op., Carnathan at 1 (citing Town of Senatobia v. Dean, 127 So. 773 (Miss. 1930)). However, a "municipality may accept, as a donation or gratuity, work and/or materials on a public street by a private individual to be performed under the supervision and control of the governing authorities. The governing authorities may, within their discretion, pave such street." Id.; MS AG Op., Hammack at *1 (Apr. 3, 1998) (citing Carnathan). Thus, the City of Senatobia may accept, as a donation or gratuity, work and/or materials on a public street by a private individual to be performed under the City's supervision and control.

Turning to your third question, Section 19-27-23 states that the map or plat filed with the chancery clerk shall be signed by the proprietor and surveyor but imposes no mandate that the map or plat be signed by the engineer. Accordingly, the filing of the plat with the chancery clerk without the engineer's signature does not render the document invalid.

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/ Misty Monroe
Misty Monroe
Special Assistant Attorney General