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

The opinion holds that a property owner cannot permanently obstruct a public right-of-way, and that under Section 21-19-63 the streets, alleys, and other public ways shown on an approved plat are dedicated to public use. It treats what action the town takes to remedy an obstruction as a matter within the discretion of the governing authorities on the advice of their attorney, and notes that whether the right-of-way was dedicated and accepted, and whether the fence in fact obstructs it, are factual determinations for the town subject to court review.

For property owners with structures on a platted alley or public way

The opinion states that a private owner cannot permanently obstruct a municipality's right-of-way. It cites Gaw (fence removed from a public alley) and Brown (building removed from a public sidewalk) as cases where Mississippi courts affirmed removal orders. Whether a particular fence obstructs the town's right-of-way is a factual question the opinion says it cannot resolve.

What the opinion drew from county practice

The opinion notes that, in the county context, it had previously opined a board of supervisors "is authorized to take whatever action necessary to maintain the public right-of-way," including, after a factual finding that an obstruction adversely affects the right-of-way or is a safety hazard, requesting the landowner remove it at the owner's expense (MS AG Op., Snowden, May 23, 2014). The opinion offers this as prior guidance, not as a directive to the town.

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
4. 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).

5. A property owner cannot permanently obstruct a public right-of-way.

6. 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