IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00217-SCT JOHN T. SEY

F ARTH, JR.

v. ADAMS COUNTY

BOARD OF SUPERV

ISORS

DATE OF JUDGMENT: 01/08/2018 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. TRIAL COURT ATTORNEYS: PAUL ANDERSON KOERBER SCOTT FLETCHER SLOVER COURT FROM W HICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PAUL ANDERSON KOERBER ATTORNEY FOR APPELLEE: SCOTT FLETCHER SLOVER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 04/18/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KING, P.J., COLEMAN AND BEAM, JJ. KING, PRESIDING JUSTICE, FOR THE COURT: ¶1. The Adam s C ounty Board of Supervisors (Board) designated Mount Airy Plantation Road as a public r oad, placing it on the of f icial c o unty road register in 2000. John Sey f arth petitioned the Board to abandon the portion of the road that d ead ends into h is property

. He alleged t hat people w ere using the road to reach his property and t respass on i t. T he Board declined to a

bandon the road, denied Sey f arth’s request f

or d am ages, and d id not address his requests that the Board take action to a bate t he nuisances he experienced. Sey f arth appealedto the circuit c ourt, which af f i rm ed the Board’s decisions not to abandon the r oad and not to award dam ages. But the c ircuit court ordered the Board to reasonably abate any nuisances

to Sey f a rth. Sey f

arth appeals t he circuit court’s ruling to a f f irm the Board’s decision not to abandon t he road and not to award dam ages, and t h e B o a r d c r oss-appeals t he order that it abate any nuisances. Because Sey f arth has no r em e d

y on the record bef

ore this Court, this
Court af f irm s the c ircuit court’s judgm ent af f irm i ng the Boa r d ’ s d ecisions declining to abandon the road and declining to award dam ages. But because, on this record, the Board has no legal authority to abate any nuisance in the m anners suggested, this Court reverses and renders the circuit court’s order m andating that the Board abate any nuisance.
FACTS AND PROCEDURAL HISTORY ¶2. In 1 998, the Legislature passed a law that required each c ounty board of supervisors

to prepare and adopt an of f icial m ap designating all public roads on t he county road sy stem

on or bef ore July 1, 2000. Miss. Code Ann. § 65-7-4 (Rev. 2012). T he Legislature’s stated intent was that the of

f icial record “shall include all public roads that t he board of supervisors determ ines, consistent with f act, a s of J uly 1, 2000, or s uch d ate the initial of f i cial record is adopted, are laid out and open according to law.” Miss. Code Ann. § 65-7-4(6) ( Rev. 2012). The Legislature f

urther explained that the legislative i ntent f o r the proceedings and public hearing f or the initial adoption of

the roads

are not intended to l ay out, open, designate or otherwise establish new p ublic roads, but to docum ent and record existing roads which are, a t the t im e o f the initial a doption of said m ap and register, adjudicated by the board, consistent with f a c t , t o be public roads by dedication, under the m ethods p rovided by statute, or by

prescription and required by public convenience and necessity

.

2Miss. Code A n n . § 6 5

- 7

- 4 .1 (Rev. 2 012). On May 8, 2000, the Adam s C ounty Board of

Supervisors p u b lished notice that a hearing w ould occur on June 5, 2000, regarding the of f icial county road sy stem registry , as required b y statute. S ee Miss. Code A nn. § 65-7-4(3) (Rev. 2012). The road registry designated which county roads were public and which were private. T he hearing o ccurred on June 5, 2000, and the Board approved the designations on June 19, 2000. M ount Airy Plantation Road, a road .58 m iles long, was included as a public road on the designation. ¶3. Mount Airy P lantation R oad dead ends into p roperty owned by Sey f arth. The portion that traverses Sey f

arth’s land provides access to only one other property , and that property has a deeded perpetual easem e nt a nd right-of

- way over the portion of the road t hat m ust be used to access it. Sey f

arth alleged that the public’s use o f the portion of the road that dead ends o nto his property has created a nuisance. D eer guts were b eing dum p ed on his property , hunters have trespassed a nd even constructed deer stands on Sey f arth’s property , and his cattle have been shot and injured. ¶4. In March 2 014, Sey f arth twice a

pproached the Board a n d a s k e d t h a t a p ortion of
Mount Airy Plantation R oad be rem oved f rom the county road sy stem

. Also in March 2014, several residents a nd landowners a long Mount Airy Plantation Road s igned a petition asking the Board to keep the road public. 1 On July 18, 2016, Sey f arth a ppeared bef

ore the Board and requested that the Board a bandon the p ortion of Mount Airy Plantation Road that

1 O n ly o n e o f th o se lan d o w n ers n eed s th e p o rtio n o f M o u n t A iry P lan tatio n R o ad t h at is co n tain ed w ith i n S ey f

arth ’s p ro p erty t o access h is p r o p erty , an d an easem en t f o r access ex ists. 3encroaches on h is property , d e c l a r e a v a riance restricting public u se of the portion of the

road, t ake action to abate th e n u i s a n c es to S ey f arth’s property caused by the road, and/or provide j u s t com

pensation t o Sey f

arth f or the e ncroachm e nt on his property

. There was testim o ny that t he road had been m aintained by the general public s ince the 1980s. Moreover, t he o ther landowner using the road objected to it s a b a ndonm ent. The Board declined to abandon the portion of the road at issue, a nd it f ound that Sey f

arth’s request f

or dam ages was untim ely

. Sey f a rth f iled a Petition f

or Bill of Exceptions and Other Relief in the Adam s County C ircuit C ourt, appealing the Board’s decision. The circuit court af f irm ed

t h e B oard’s decisions not to a bandon the portion o f t he road and not to award d am ag e s . However, the circuit court noted that t he B oard did not address Sey f arth’s nuisance concerns and ordered “that the county be required to m aintain the road in a reasonable m anner so as
to reasonably a

bate any n u i s ance caused by p ublic use of the road, specif ically including those cited and com

plained of

by the Plaintif

f .” ¶5. Sey f

a rth appeals, arguing t hat 1) the court erred in a f f irm ing the Board’s decision not
to abandon the road because no substantial evidence exists that the road i s a “public road” and t he Board should thus abandon the road, and 2) the Board’s decision w as arbitrary and capri c i o u s . S e y f

arth a sks t his Court to 1) reverse and r em and the Board’s d ecision; 2) declare that the road was im properly and without legal notice d esignated a public road; 3)

com pel the Board to a

bandon the road; 4) com

pel the Board to d eclare a v ariance f rom use of the r oad, i ncluding restricting use f rom the general public and installing a gate a t the point

o f a ccess to S ey f

arth’s property , and to take action to prevent the nuisances, includin g

4stationing la w e nf orcem ent continuously at the access point; and 5) order the board to provide just com

pensation to Sey f

arth. The Bo a r d cross-appeals, arguing that the court’s order to abate the nuisance was bey ond the circuit court’s authority

. ANALYSIS 1. Standard of Review ¶6. This Court does not disturb the decision of a board of supervisors unless the decision

w a s not supported by substantial evidence, was a rbitrary or capricious, was bey o n d t h e board’s scope or powers, or violated the constituti o n a l or s t atutory rights o f the aggrieved party

. Hooks v. George Cty. , 748 So. 2d 678, 680 ( Miss. 1999). Substantial evidence is

m ore than a m ere scintilla of e v i d e n c e . I d. Additionally , because the Mississippi Constitution gives boards of s u p ervisors “f ull jurisdiction” over r oads, this Court gives substantial def

erence to board decisions regarding roads in which the b oard has discretion.
See Covington Cty. v. Collins , 92 Miss. 330, 45 So. 854, 855 (1908).
2. Law Regarding County Roads ¶7. The M ississippi Constitution p l a c es authority over county roads with the county board of s upervisors. Miss. Const. a r t

. 6 , § 170. It provides that “[ t]he b oard of supervisors [ of each county ] shall have f

ull jurisdiction over roads, f erries, and bridges, t o be e x ercised in

a c c o r d a nce with s u ch regulations as the legislature m ay prescribe.” Id. The Legislatur e reaf f irm ed this jurisdiction, providing that “[ t]he board of supervisors of each county

shall have f ull jurisdiction over a ll m a tters relating to the public roads of the county , i ncluding the establish m ent, lay i ng out, opening, abandonm ent, altering, changing, working and

5m aintaining of s uch roads

. . . .” Miss. Code Ann. § 65-7-1(1) (Rev. 2012). The L e gislature

also m andated that “[ a]ll public roads shall be kept op e n . . . .” Miss. Code Ann. § 65-7-3 (Rev. 2012). The Legislature provides only l im ited exceptions to its m andate to kee p a l l roads o pen: 1) the board m a y regulate the kinds of wheels that m ay be used on public roads, and m ay prohibit vehicles f rom using cleats or spikes o n wheels; 2) in the event of inclem ent weather, f

loods, or other causes in which nonuse of a public road is necessary , a supervisor

m ay prohibit use of the road or regulate the ty pe of traf f ic that m ay

be used on the road; 3) the board m ay protect its roads f rom unusual or u ncom m o n use, i ncluding regulating

m axim u m loads o r weights, that is likely to injure or im pair the roads’ usef

ulness as public highway s; and 4) the board m a y close a road d

uring its construction or repair. Miss. Code Ann. §§ 65-7-37, 65-7-43, 65-7-45, 65-7-53 (Rev. 2012). ¶8. The L egislature als o p r o v i d e s t h a t t h e board of supervisors “ may . . . declare any section o f the county road sy stem abandoned

. . . .” Miss. Code Ann. § 65-7-121(1) (Rev. 2012) (em

phasis added). The board m ay abandon any s ection if it f inds that one or m ore of the f

ollowing circum stances are applicable to the section in question: (a) The section does not provide prim ary access to occupied properties; (b) Traf f i c on the section has f

or a period of at least ten (10) consecutive y ears been interm i ttent a nd of such low volum e that n o substantial public purpose is being served thereby ; (c) The b oard of

supervisors has, f

or a period of at least the previous f i ve (5) consecutive y ears, not m aintained s uch sect i on as part of t he county road sy stem ; or (d) For any reason, t he pu b l i c interest or convenience does not require the

6section t o r e m ain open to the public or that it is i n t he p ublic interest or

convenience to close, vacate and abandon the section. Miss. Code Ann. § 65-7-121(1) (Rev. 2012).
3. Public Use ¶9. Sey f

a rth’s prim ary argum ent on appeal is that substantial evidence of public use does

not exist. Yet, the decision by the Board t hat Sey f arth appeals is the d ecision not to abandon the road. H e did not a

ppeal the Board’s initial decision to m ake the road public. The Board does not have to establish public use in a determ ination of whether to abandon a road; it m ust establish public use only when initially designating a road as public. Mount Airy Plantation Road was listed as public in the c ounty road registry a s e vinced by t he B oard’s m inutes in June 2000. Testim o ny

indicated that it had been m aintained by the p ublic since the 1980s. And indeed, the Legislature noted that the intent of the registry was to m em o rialize already

existing public roads, n o t to create new ones. Miss. Code Ann. § 65-7-4.1 (Rev. 2012). Thus, the p r e s u mp t i o n is that Mount Airy Plantation Road was a public road prior to June 2000. ¶10. A p erson aggrieved by a decision of the board of supervisors of a county m ay appeal

to the c ircuit court within ten day s f rom the date o f the decision. Miss. Code Ann. § 11-51-
75 (Rev. 2012). At the latest, the Board decided that M ount Airy P lantation Road was public

on June 19, 2000. Sey f

arth f iled his bill of exceptions w ith the c ircuit court o n July 28, 2016.
To t he extent that Sey f

arth appeals any decision regarding the public use or nature of Mount Airy Plantation Road, his appeal is out o f t im e. The ten d a y t i me lim it is m andatory and jurisdictional, and w hen it is n ot c o mp l i e d w ith, the appellate c ourt lacks jurisdiction over

7the appeal. Lowndes Cty. e x rel. B d. of

Supervisors v. McClanahan , 161 So. 3d 1052, 1056 (Miss. 2015).
4. Abandonm ent ¶11. To the extent Sey f arth argues that the Board f ailed to provide substantia l e v idence

r e g a r d ing its declining to a bandon the road pursuant to Section 65-7-121, h is argum en t i s

m isplaced. Section 65-7-121 leaves the d ecision not to abandon a road entirely within the discretion of the board of supervisors. Miss. Code Ann. § 65-7-121(1) (Rev. 2 012) (em phasis added) (The board of supervisors “ m ay . . . declare any section o f t he county road
sy stem abandoned

. . . . ”). The f actors listed provide f

or the procedure the board m ust f ollow if and when it does determ ine to abandon a road; they do n ot provide m andates f

or when a board should or m

ust abandon a r o a d

. T his Court has recognized that the statute provides the “procedure f

or a bandoning a road.” M

cClanahan , 161 So. 3d at 1056; see also V alley
R o a d A c t i o n Com m . v. Lauderdale Cty. Bd. of Supervisors , 97 So. 3d 1242, 1246 (Miss.
Ct. App. 2012) (Secti o n 6 5

- 7

- 1 2 1(1) “sets f orth the requirem ents f

or a county board of supervisors to close, vacate, o r abandon a p ublic road.”). T h i s is also illustrated by the

statute itself

, which p rovides that “ any proceedings under this section shall be docum ented i n t h e o f f i cial record o f the county road sy stem in accordance with the requirem ents o f Section 65-7-4.” Miss. Code Ann. § 65-7-121(6) (Rev. 2 012) (em ph a s e s added). Section
65-7-4 provides that “[ c ] hanges to the county road s y stem shall be recorded on t his m ap as

s o o n a s is reasonably possible.” Miss. Code Ann. § 65-7-4(1) (Rev. 2012) (em phasis added). A decision not to abandon a public road does n ot change the county road sy stem in

8any way

and would not need docum entation on the road sy stem record; t hus it is clear that the procedures o f this chapter are the requirem ents the county m ust f ollow in o rder to allow it to abandon a road, not m andates f or when it m

ust or should abandon a road. ¶12. T h e only other way t o f i nd abandonm ent of a road is through a f i nding o f d i s u s e , which is inf

orm e d by the law of adverse possession. McNeely v. Jacks , 526 So. 2d 541, 544 (Miss. 1 988). Sey f

arth does not argue that the road has been a b andoned through disuse. Nor does it appear f

rom the record that he would be successf ul doing so . H e a nd another landowner use the road, and the public uses the road f or allegedly im

proper purposes. This Court has held that each of those f actors alone can def

eat a claim of

disuse. Id. at 545 (“If

a public road runs through the property of one a nd deadends on the property of another, and
f or t en y ears the latter (and persons acting on his behalf and with his perm ission) are the only

ones to use the road, n o abandonm ent occurs. . . . [ T]he owner of the land on whose property the road deadends is as m uch a s any other a m em

b er of the general public, as able in law to interrupt t he period of prescription.”); B arrett v. Pilgrim , 317 So. 2d 3 82, 383 (Miss. 1975) (holding that the Court was without power t o close a public road in private litigation without

an order f rom the Board of Supervisors closing the road, a n d n oting t hat “[ m ]ere non-user [ sic] by a part or all the g eneral public, or use by som e m em bers of the general public o f a public road as a ‘lovers’ lane, whiskey cache or as a p lace f or dum ping garbage, will not constitute such an abandonm ent as to deprive it of its public character . . . .”).
5. Just Com

pensation ¶13. Wh e n a landowner claim s com pensation f

or land taken f

o r a p u b l i c r o a d , t h e

9landowner m ust petition the board of supervisors “at the next m e eting a f ter the lay ing out of the road or at the m eeting w hen the report thereof shall be returned

. . . .” Miss. Code Ann. § 65-7-61 (Rev. 2012). At the latest, the public nature of the road was laid out in June 2000. Sey f arth f i led h is b ill of exceptions in July 2016. Any claim f or com pensation under Section
65-7-61 is untim ely , and this Court lacks jurisdiction t o review it. Sey f arth has not f

iled suit under the takings clause of t he Mississippi Constitution. Howe v e r , t o t he extent Sey f arth
argues in his brief that he is e ntitled to just com pensation under Mississippi C onstitution, article 3, section 17, his claim is likewise untim ely , a s a three-y ear statute of lim itations applies to actions brought under the Takings Clause of the Mississippi Constitution. City of Tupelo v. O’Callaghan , 208 So. 3d 556, 568 (Miss. 2017).
6. Abatem ent of Nuisances ¶14. The Mississippi Constitution gives county boards of supervisors f ull jurisdiction over

r o a d s , subject only to the regulations prescribed by t he Legislature. Miss. C onst. art. 6, §
170. The Legislature has required boards of supervisors to keep public roads open, subject only to lim ited exceptions, and i t f urther prohibits obstruction of public roads. Miss. Code
Ann. §§ 65-7-3, 65-7-7, 6 5-7-37, 6 5-7-43, 65-7-45, 65-7-53 (Rev. 2012); see also Op. Miss. Att’y Gen. 96-0421 (July 12, 1996). Sey f arth r equests that the Board address his concerns by blocking p ublic a ccess to the public r o a d , without citing any authority that would authorize the Board to do so. The Board does not have the authority to abate any

nuisance by closing a public road to the public; its f ull jurisdiction over r oads is subject to l egislative regulatio ns, which r equire that public roads be kept open and do n ot except situations in

1 0which som e of the public use the road to interf ere with p rivate propert y . Moreover, the sherif f o f each county is charged with keeping the peace and enf o rcing the laws. Miss. Code
Ann. § 19-25-67 (Rev. 2012). Sey f arth points to n o authority t hat would allow the Board of Supervisors to com

pel law enf

orcem ent to continuously m onitor the road. Further, “[ i]t is within the sherif

f ’s discretion as to how to allocate and deploy the resources o f his of f ice.” Op. Miss. Att’y Gen. 2009-00747 (Mar. 5, 2010). Sey f arth of f ers no other m e thods by which the Board could a ddress h i s c o n c e r ns. The circuit court determ ined, without citation of authority , that t he Board’s duty to “m aintain” public roads includes “ p r o p e r u s age by the public.” 2 Sey f

arth of f ers no authority t o s u p p o r t the proposition that the duty to m aintain roads encom

passes ensuring only “proper” usage, nor does he of f er any explanation as to how “proper usage” m ay be def ined. Moreover, “the m ethod and extent to which each road is m aintained is within the discretion of the board[ ,]” unless a statutory provision m andates

a c ertain m ethod. Op. Miss. A tt’y Gen. 97-0136 (Mar. 7, 1997). Sey f arth p oints to no statute that requires the Board t o reasonably abate any nuisance on private p roperty allegedly caused by the public nature of a road. Thus, w e reverse the circuit court’s order m andating that the county reasonably abate any nuisance and render judgm ent in f a vor of t h e B oard on this issue. This holding does not preclude Sey f arth f rom petitioning the Board to em p loy m eans within its authority to address his concerns. 3

2 S ey f arth ’s co n cern s an d th e c i r c u i t c o u rt’s sy m p ath y f o r th em are certain ly u n d erstan d ab le; h o w e v er, o n th e reco rd t h at is b ef o re t h is C o u rt, S ey f

arth d o es n o t h av e an av ailab le rem ed y .

3 If th e u se o f a ro ad is “u n reaso n ab le, u n u s u a l , a n d d an g ero u s to saf e trav el,” th e b o ard is w ith in i ts p o w er to sto p th e u sag e w ith in leg al m ean s av ailab le to it. S ee C o llin s , 1 1CONCLUSION

¶15. Because t he decision not to abandon t h e p o r t i o n of M ount Airy Plantation Road at issue did not abuse the Board’s discretion, this Court af f irm s the Board’s decision a n d t he circuit court’s o rder af

f irm ing the Board’s decision. N o authority e x i s ts f or the Board to abate any nuisances in t he m anners suggested b y Sey f arth, nor does t he circuit court suggest
any legal m anner in which the Board m ay abate any nuisances; thus, the circuit court’s order requiring that the Board reasonably abate any

nuisances is reversed and rendered. ¶16. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAX WE L L , BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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