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Lowndes County v. McClanahan

Court of Appeals of Mississippi

April 29, 2014

LOWNDES COUNTY, MISSISSIPPI BY AND THROUGH ITS BOARD OF SUPERVISORS, APPELLANT
v.
HAL H.H. MCCLANAHAN, III, MCCLANAHAN CAMP, LLC, JULIE GARTMAN AND DENNIS GARTMAN, APPELLEES

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/04/2013. TRIAL JUDGE: HON. HENRY L. LACKEY. TRIAL COURT DISPOSITION: REVERSED THE LOWNDES COUNTY BOARD OF SUPERVISORS' ORDER ABANDONING A PUBLIC ROAD.

FOR APPELLANT: TIMOTHY C. HUDSON, COURTNEY BRADFORD SMITH.

FOR APPELLEES: HAL H.H. MCCLANAHAN III.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

OPINION

Page 1092

FAIR, J.

¶1. The Lowndes County Board of Supervisors voted to close a stretch of Co-Op Road, a paved county road near Columbus, Mississippi. A group of residents and landowners objected, contending that the road had provided the primary access to their properties and that the alternative access was too narrow.

¶2. On appeal, the circuit court found that the published notice of the hearing for the road closure had been insufficient. We conclude that the residents failed to take a timely appeal from the Board's resolution. Because a timely appeal is jurisdictional, we vacate the circuit court's decision.

FACTS

¶3. The portion of Co-Op Road at issue had been a railroad crossing, connecting two public roads running parallel to the tracks. A few hundred yards away, another public road provided another crossing connecting the same two roads. On October 31, 2011, the Board passed a resolution abandoning the Co-Op Road crossing. The resolution found among other things that the crossing " [did] not provide primary access to occupied premises" and " serve[d] only one land-owner who has requested abandonment." After passing the resolution, the County erected barriers bearing " Road Closed" signs. The owner of the property on which the road had been situated, C & G Railroad, then destroyed the roadbed.

¶4. On November 30, 2011, the residents, in two groups, filed separate " Motion[s] for Reconsideration" contending, in

Page 1093

identical language, that the Board " failed to comply with the statutory requirements of [Mississippi Code Annotated section] 65-7-121 under the four requirements for the abandonment of public roads." [1] On February 5, 2012, the residents, now all together, submitted an " Amended Motion for Reconsideration." This was followed by a " Second Amended Motion for Reconsideration" on February 6. The amended motions added the contention that the County should not have " closed" the road. Among other things, the residents claimed to have a private easement over the railroad crossing, and they requested that the County remove the barrier. The residents also suggested that the alternative route was too narrow to be used as a primary access to their properties.

¶5. On February 17, 2012, the Board, on the motion of one of its members, voted to " amend" its prior resolution to clarify that the County had not closed the road, but abandoned it.[2] The Board also ordered the barrier removed and replaced with a sign indicating the end of county maintenance. The residents filed a bill of exceptions from that decision, contending the Board acted " beyond the scope or power granted to [it] by statute, violate[d] the constitutional or statutory rights of the [landowners, and its action] is not supported by substantial evidence ...


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