George County v. Davis

• Decision Date: 10 September 1998
• Docket Number: No. 97-CA-00188-SCT.,97-CA-00188-SCT.
• Citation: 721 So.2d 1101
• Parties: GEORGE COUNTY, Mississippi By and Through its BOARD OF SUPERVISORS; Clyde W. Eubanks, Sr., Individually; R. Wayne Christian, Individually; Ralph B. Fairley, Individually; Larry A. Havard, Individually; and Norman C. Howell, Individually v. J.B. DAVIS, State of Mississippi and Office of the Mississippi State Auditor.
• Court: Mississippi Supreme Court

721 So.2d 1101

GEORGE COUNTY, Mississippi By and Through its BOARD OF SUPERVISORS; Clyde W. Eubanks, Sr., Individually; R. Wayne Christian, Individually; Ralph B. Fairley, Individually; Larry A. Havard, Individually; and Norman C. Howell, Individually v. J.B. DAVIS, State of Mississippi and Office of the Mississippi State Auditor.

No. 97-CA-00188-SCT.

Supreme Court of Mississippi.

September 10, 1998.

Gerald Alan Dickerson, Lucedale, Kimberly Ann Castle, Hattiesburg, for Appellants.

Michael C. Moore, Attorney General, Lawrence Arthur Schemmel, Special Asst. Atty. Gen., for Appellees.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

¶ 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.

STATEMENT OF FACTS

¶ 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. Mergenschroer 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 Judgement."

¶ 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 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 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:¹

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 19-3-41², 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?

LEGAL ANALYSIS

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?

¶ 9. The Board of Supervisors alleges that the chancellor should have granted its Motion for Summary Judgment since the State of Mississippi filed a Waiver of Interest on May 10, 1996. The Board further contends that the chancellor erred in allowing the Attorney General's office to participate in the trial since the chancellor's Order regarding the Board's Motion to Place on Trial Docket, for Inspection and Final Hearing dated July 1, 1996, indicated that the "State Auditor, nor the Attorney General or the District Attorney intervened in this action after notification and that the parties should be as set forth in the original complaint...."

State's Participation

¶ 10. The Board argues that the chancellor was bound by this Order and erred in allowing the Attorney General's Office to participate in the trial. The Board further maintains that the court "had an ex parte communication with the State of Mississippi, in which it seemingly requested their presence at trial."

¶ 11. On the other hand, the State maintains that when the Board's counsel first discussed the filing of the complaint with the State, the Deputy Attorney General was not informed by the Board's counsel that the State Auditor had been involved in the case investigating improprieties of paving private driveways and roads in George County. The State also maintains that once this was learned, the Deputy Attorney General contacted the Board's counsel prior to trial and informed him that the State's waiver would be withdrawn at trial. Moreover, the record reflects that the State did in fact move to withdraw its initial waiver at the beginning of trial and that the chancellor granted the State's motion to withdraw its waiver without objection by the Board's counsel.

¶ 12. Even though there are numerous allegations propounded in both briefs alleging improprieties on both sides, this Court is bound to make its decision based on what is actually contained in the record. The record shows that the Attorney General's Office filed a Waiver of Interest in the proceedings, on May 10, 1996. However, the record also shows that Jim Steele, Assistant Attorney General notified the Board's counsel on July 16, 1996 of their intent to be present at trial representing the State of Mississippi and the State Auditor's Department. Additionally, the record reveals that the Attorney General's Office appeared at trial and promptly made a Motion to Withdraw their Waiver of Interest. The chancellor granted the State's motion and allowed their participation in the proceedings. Moreover, the record indicates that the Board's counsel did not object to the State's ...