Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court
DATE OF JUDGMENT: 09/05/96
TRIAL JUDGE: HON. GLENN BARLOW
COURT FROM WHICH APPEALED: GEORGE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION AFFIRMED - 9/10/98
¶1. The case at bar comes to this Court concerning the question of whether certain roads in George County, Mississippi that were being maintained by the Board of Supervisors, were properly considered public. After careful analysis we find that there was sufficient evidence to support the Chancellor's findings and we therefore affirm.
¶2. In 1995, the Board had approved the paving of several smaller, secondary roads that lead to a small number of homes, or in some instances, only one home. While some of the paving was ongoing, a complaint alleging that the supervisors were paving private roads was made to the Department of Audit.
¶3. The Department of Audit conducted a formal investigation of the following roads: 1. James Miller Road 2. Wayne Ott Road 3. Claude Passeau Road 4. Woodrow Moody Road 5. Edith Moody Road 6. Irene Mosley Road 7. John Hickman Road 8. Old Turkey Ford Road 9. Hurtis Ray Rogers Road 10. Lena Cumbest Road 11. Old Caylor Taner Homestead Road 12. Brewer Road 13. Mergenshroer Drive 14. Danny's Drive 15. Eckhoff Road 16. Jim Reeves Road 17. Wilton Dickerson Road and Charles Welford Drive 18. Wilton Dickerson Road Extension 19. Inez Lane 20. Perine Road and Willie and Mary Banks Drive 21. Grover's Drive 22. Ray Fallon Drive 23. Burt Davis Road 24. Danny Davis Lane 25. J. B. Davis Road 26. McKinest Road 27. Ora Lee Road 28. James Mixon Road
¶4. The Audit Department found that these roads were private roads. In response to the Department's findings, the board members took Landowners' Affidavits, Prescriptive Road Affidavits, and photographs attesting to the fact that these roads had been maintained for a great number of years. Additionally, the Board filed a complaint on February 20, 1996, in George County Chancery Court requesting a temporary restraining order, permanent injunction, and declaratory judgment in an effort to have these twenty-eight (28) roads declared public. The chancellor filed an order on February 20, 1996, granting a temporary restraining order "from declaring or taking any action against the roads or Plaintiffs named in the Complaint as being private in nature until such time as the Court considers the request for Declaratory Judgment."
¶5. On March 19, 1996, the chancellor filed a scheduling order requiring the Board to notify the State Auditor (and thus the Attorney General) and the District Attorney for the Nineteenth Circuit Judicial District of Mississippi, of the opportunity to intervene and object to the roads being declared public. The Attorney General filed a waiver on May 10, 1996, choosing not to join in the action. The chancellor signed an Order on May 9, 1996, which was filed on July 1, 1996, scheduling a physical road inspection and providing for the court to receive testimony and evidence on July 10 and 11, respectively. The Order also provided that the Board's counsel could file a summary judgment motion and brief and/or brief supporting a Rule 57 declaratory judgment by June 30, 1996. The Board filed a motion and brief for summary judgment on June 28, 1996.
¶6. The trial court held a hearing on July 17-18, 1996, Honorable Glenn Barlow presiding, wherein testimony and evidence were presented by the Board of Supervisors and the State of Mississippi (by the Attorney General and Office of the State Auditor). At the beginning of the hearing, the Attorney General moved to withdraw the State's initial waiver. The court granted the motion without objection from the Board's counsel. At the hearing, two (2) roads, Billie Tilley Road and Mitchell Tilley Road, were added to the original complaint list of twenty-eight (28) roads in question. Additionally, on July 18, 1996, the court and the parties physically inspected each road in question.
¶7. On August 12, 1996, the chancellor filed a Ruling of the Court which categorized thirty roads into two groups. The first category are those roads that were petitioned in accordance with Miss. Code Ann. § 65-7-57 (1991). The second category are those roads that the Board alleges are public by virtue of prescription or dedication. However, following the Board's Motion for New Trial and Motion to Reconsider the Judgment, the chancellor entered a Supplemental Ruling on January 10, 1998. The final result is as follows: Category One 1. Claude Passeau Road - public 2. Ray Fallon, Jr. Road - public 3. Wayne Ott Road - public 4. Shipman Church Road - public 5. Billie Tilley Road - public 6. Mitchell Tilley Road - public 7. Tanner Road - public 8. Inez Lane or Audrey Beech Road - public 9. Eckhoff Road - public 10.Sandra Brewer Road - public 11.Wilton Dickerson Rd (Charles Welford)private (public up to C Dickerson prop line, then private past that) 12. Danny Davis public 13. James Mixon Road - public 14. J.B. Davis Road - public
Category Two 15. Lena Cumbest Road - private 16. McKinest Road - private 17. Burt Davis Road - private (deemed public in supplemental ruling) 18. Evelyn & Rufus Fairly Rd (Ora Lee Rd) public 19. Banks Drive - private 20. Grover's Lane (Nathan Havens) private 21. Danny's Drive - private 22. Mergenschroer Drive - private 23. Jim Reeves Road - private 24. John Hickman Road - public 25. Woodrow Moody Road - private (deemed public in supplemental ruling) 26. Moffett Annex - public 27. Calvin Tucker - private 28. Irene Mosley Road - private 29. James Miller Road - private 30. Hurtis Ray Rogers Road - private
Supplemental Ruling 31. Turkey Fork Road - public (federal funds)
¶8. Aggrieved by the trial court's ruling, the Board of Supervisors appealed to this Court and raised the following issues: *fn1
I. WAS THE LOWER COURT BOUND BY ITS ORDERS AND SHOULD HAVE THE JUDGMENT BEEN ENTERED FOR APPELLANT AS THERE WAS NO RESPONSE FROM THE ATTORNEY GENERAL'S OFFICE OR THE STATE AUDITOR'S OFFICE, OPPOSITE COUNSEL, TO ITS REQUEST FOR RELIEF ON MOTION FOR SUMMARY JUDGMENT TOGETHER WITH SUPPORTING BRIEF?
II. DOES ARTICLE 6, SECTION 170 OF THE MISSISSIPPI CONSTITUTION OF 1890 AND SECTION 19-3-41 *fn2 , MISSISSIPPI CODE OF 1972, GRANT UNTO THE BOARD OF SUPERVISORS EXCLUSIVE JURISDICTION, OVER COUNTY ROADS, BRIDGES AND FERRIES, SUBJECT ONLY TO APPEAL AS PROVIDED BY LAW?
III. WAS THE COURT ARBITRARY AND CAPRICIOUS IN ACCEPTING OR REJECTING CERTAIN ROADS AS BEING PUBLIC OR PRIVATE BY PRESCRIPTION?
I. WAS THE LOWER COURT BOUND BY ITS ORDERS AND SHOULD HAVE THE JUDGMENT BEEN ENTERED FOR APPELLANT AS THERE WAS NO RESPONSE FROM THE ATTORNEY GENERAL'S OFFICE OR THE STATE AUDITOR'S OFFICE, OPPOSITE COUNSEL, TO ITS REQUEST FOR RELIEF ...