by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Dirt is grateful to Dirt reader W. Rodney Clement, Jr., of Brunini, Grantham et all in Jackson, Mississippi, for information about this case:
SUBDIVISIONS; CREATION; DEDICATED LAND: Under statute providing that "all streets, roads, alleys and other public ways" set forth on an approved subdivision map will be deemed dedicated to the approving agency (city or county), the dedication will be deemed a dedication in fee, and not just an easement; and under an approved subdivision map showing a square in the center of the subdivision connected to the surrounding street system, the public square will be deemed dedicated according to the statute.
Nettleton Church of Christ v. Sandra Conwill, 92-CA-01215-SCT (Miss. 2/20/97)
In 1951, a landowner platted a subdivision consisting of 22 lots, each with frontage on adjacent city streets. In the center of the subdivision was an area 100 x 100 feet that was connected to the city streets by three "alleys" running along the edges of some of the lots. The plat was submitted to the City of Nettleton, which approved it.
Recently the city determined that the square parcel in question was surplus and elected to transfer it to a local church. A private party obtained the rights of all the parties owning land adjacent to the parcel and argued that the city held the parcel only as an easement and, by declaring it surplus, abandoned its easement rights, resulting in a reversion to the neighboring landowners.
Under Mississippi statutes, where a plat that has been approved by a city or county shows "streets, roads, allleys and other public ways," the public agency obtains the fee interest in these areas by dedication. The court differentiated this "statutory dedication" from "common law dedication." In the latter case, the court held, a public agency would obtain only an easement interest.
Here, the court concluded that the statute should be read to comprehend public squares. It cited AmJur to the effect that the reference to streets in a typical dedication usually is regarded as including other properties shown as public on a plat even if there is no specific reference to them. It cites no case law.
Parenthetically, the court held that even if the property were deemed to be held as an easement, the city's declaration that it was surplus would not constitute an abandonment. It cites the common rule that mere nonuse is not abandonment.
Comment: The author believes that a desireable result was reached here, but unfortunately the court resorted to a somewhat tortured analysis of statutory language to do so. A public square is not a public street, and announcing that it is does not make it so. The court may have difficulty with this interpretive leap at some future time. Courts should not undertake the duty to "mop up" after sloppy legislative work. Let the legislature do its job, and let the courts stay within their own province.
As to the analysis of the abandonment issue: it is quite clear that a mere declaration of property as "surplusage" should not constitute abandonment under the ordinary rules. But what about the sale of the property to a private interest? As the purpose of the original dedication was for public use, it is difficult to conclude that there is no abandonment once the property is sold to a private party for church purposes. The court has dodged the abandonment problem, of course, by finding fee ownership. Further, it dodges the problem analytically by saying that the City of Nettleton is still the owner of the property, and does not speculate as to whether there would have been abandonment upon sale if the property were an easement.
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