                       IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2002-AN-00563-SCT


IN THE MATTER OF THE ENLARGEMENT
AND EXTENSION OF THE MUNICIPAL
BOUNDARIES OF THE CITY OF
SOUTHAVEN, MISSISSIPPI:
CITY OF HORN LAKE

v.

CITY OF SOUTHAVEN, MISSISSIPPI

DATE OF JUDGMENT:                               3/27/2002
TRIAL JUDGE:                                    HON. PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED:                      DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                        BILLY C. CAMPBELL, JR.
                                                WILLIAM AUSTIN BASKIN
                                                JERRY R. WALLACE
ATTORNEYS FOR APPELLEE:                         JERRY L. MILLS
                                                RONALD LOUIS TAYLOR
NATURE OF THE CASE:                             CIVIL - MUNICIPAL BOUNDARIES &
                                                ANNEXATION
DISPOSITION:                                    AFFIRMED - 11/20/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, P.J., WALLER AND CARLSON, JJ.

       WALLER, JUSTICE, FOR THE COURT:

¶1.    The City of Horn Lake, Mississippi, appeals from the Chancery Court of DeSoto County's

approval of the annexation of 310.24 acres in DeSoto County (the "Proposed Annexation Area" or "PPA")

by the City of Southaven, Mississippi. The first two issues raised by Horn Lake pertain to an agreement

entered into by the city administrations of Horn Lake and Southaven wherein Southaven agreed not to
object to an annexation of the PAA by Horn Lake and declared the property to be in Horn Lake's natural

path of growth. Horn Lake argues that, based on this agreement, equitable estoppel and judicial estoppel

should bar Southaven's annexation of the PAA. Horn Lake also argues that the chancellor's decision to

allow Southaven's annexation of the PAA was manifestly wrong and was not supported by substantial and

credible evidence. Finding no merit in these issues, we affirm the chancellor's decision to allow Southaven

to annex the PAA.

                                                  FACTS

¶2.     In the 1990s, Horn Lake, which lies to the west of I-55, and Southaven, which lies to the east of

I-55, both experienced massive growth due to their proximity to the Memphis, Tennessee, metropolitan

area. Horn Lake and Southaven each annexed large tracts of land to accommodate the residential and

commercial growth. During this growth period, Southaven acquired, inter alia, some land which lay west

of I-55, but east of United States Highway 51.1

¶3.     In 1997, Southaven filed proceedings to annex certain land west of Highway 51. After five days

of trial in early 1998, Southaven and Horn Lake entered into an agreement whereby Southaven agreed not

to annex the land west of Highway 51 and would “not object to any future annexation filed by the City of

Horn Lake to annex any lands . . . West of the West right of way of Interstate 55.” Southaven also

stipulated that “the aforesaid tracts lie in the path of growth of the City of Horn Lake and should be

considered as a part of Horn Lake’s annexation reserve area.”

¶4.     After the agreement was made, Horn Lake annexed land lying to the south and west of Horn Lake,

but did not seek annexation of the PAA in question.




        1
         Highway 51 parallels and lies to the west of I-55.

                                                    2
¶5.      Southaven filed annexation proceedings in 2001 to acquire the 310.24 acres which are the subject

of this appeal. The 310.24 acres lies to the south and west of Southaven and are bisected by Highway 51.

A little over half of the entire tract already lay within Southaven's city limits. The PAA is owned in its

entirety by the College Road Land Company and is described as “completely unimproved land consisting

of uninhabited pasture land with scattered trees and rolling hills.” The owners requested Southaven to

annex the property, because they wanted to develop the property as a single unit under the regulations of

a single jurisdiction.

¶6.      Horn Lake filed a motion to dismiss based on Southaven's stipulation that land west of the I-55

west right-of-way was in Horn Lake's path of growth, and its agreement that it would not object to Horn

Lake's future annexation of land lying west of Highway 51. Southaven responded, stating that it was not

bound by the 1998 agreement because it had been entered into by a previous administration which ended

its term of office on June 30, 2001. Horn Lake countered that the “previous” administration was comprised

of exactly the same people as the “current” administration, and that equity demanded that Southaven abide

by the 1998 agreement.

¶7.      In denying Horn Lake’s motion to dismiss, the chancellor noted he could not find, and Horn Lake

had not cited, any authority which states that if the same city administration is reelected for a successive

term, the principle that one city administration cannot bind a succeeding administration does not apply. The

chancellor went on to find that Southaven's annexation of the PAA was reasonable under the totality of the

circumstances and in the best interest of the owners. From these orders, Horn Lake appeals.

                                             DISCUSSION

                                     STANDARD OF REVIEW




                                                     3
¶8.      For questions of law, we employ a de novo standard of review and will only reverse for an

erroneous interpretation or application of the law. T.T.W. v. C.C., 839 So. 2d 501, 503-04 (Miss. 2003).

¶9.      Our standard of review for annexation is very limited. We may only reverse the chancery court's

findings as to the reasonableness of an annexation if the chancellor's decision is manifestly wrong and is not

supported by substantial and credible evidence. Enlargement and Extension of Mun. Boundaries

of City of Madison v. City of Madison, 650 So. 2d 490, 494 (Miss. 1995). We also stated "[w]here

there is conflicting, credible evidence, we defer to the findings below." Bassett v. Town of Taylorsville,

542 So. 2d 918, 921 (Miss.1989). "Findings of fact made in the context of conflicting, credible evidence

may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly

wrong, given the weight of the evidence." Bassett, 542 So. 2d at 921. "We only reverse where the

chancery court has employed erroneous legal standards or where we are left with a firm and definite

conviction that a mistake has been made." Id.

                I.        WHETHER EQUITABLE ESTOPPEL SHOULD BAR
                          SOUTHAVEN'S ANNEXATION OF THE PAA.

¶10.     Equitable estoppel is a doctrine "by which a person may be precluded by his act or conduct, or

silence when it is his duty to speak, from asserting a right he otherwise would have." BLACK' S LAW

DICTIONARY 373 (6th ed. abr.1991). A party asserting equitable estoppel must prove a (1) belief and

reliance on some representation; (2) change of position as a result of the representation; and (3) detriment

or prejudice caused by the change of position. Mound Bayou School Dist. v. Cleveland School

Dist., 817 So. 2d 578, 583 (Miss. 2002); Covington County v. Page, 456 So. 2d 739, 741 (Miss.

1984).

                     A. Whether Annexation is a Discretionary Act or a Ministerial Act


                                                      4
¶11.    Southaven contends that neither equitable nor judicial estoppel apply because, where the act at

issue is a discretionary one instead of a ministerial one, one city administration cannot bind succeeding city

administrations. Biloxi Firefighters Assoc. v. City of Biloxi, 810 So. 2d 589, 593 (Miss. 2002)

(citing American Oil Co. v. Marion Co., 187 Miss. 148, 192 So. 296, 299 (1939); Tullos v. Town

of Magee, 181 Miss. 288, 179 So. 557, 558 (1938); Edwards Hotel & City R. Co. v. City of

Jackson, 96 Miss. 547, 51 So. 802, 805 (1910)).2

¶12.    We have never determined whether the power to annex is discretionary or ministerial, but the

statute conferring the power to annex uses permissive language, not mandatory: "When any municipality

shall desire to enlarge or contract the boundaries thereof by adding thereto adjacent unincorporated

territory . . . .," and, "In the event the municipality desires to enlarge such boundaries . . . ." Miss. Code

Ann. § 21-1-7 (Rev. 2001) (emphasis added). The use of this permissive language leads to the conclusion

that the power to annex is a discretionary act, not a mandatory act. Therefore, Biloxi Firefighters and

the other cases would apply to an agreement whereby a city administration agrees not to annex a certain

parcel of land, and that agreement would not be binding on successive administrations.

¶13.    On February 8, 2000, the landowners wrote a letter to the DeSoto County Planning Commissioner

in which they stated that they "intend[ed] to honor the current non-aggression agreement between


        2
            See also 56 Am. Jur. 2d Municipal Corporations:

                 Where the contract involved relates to governmental or legislative
                 functions of the council, or involves a matter of discretion to be exercised
                 by the council, unless the statute conferring power to contract clearly
                 authorizes the council to make a contract extending beyond its own terms,
                 no power of the council so to do exists, the council presently holding such
                 powers is vested with no discretion to circumscribe or limit or diminish
                 their efficiency, but must transmit them unimpaired to their successors. . .
                 .

                                                      5
Southaven and Horn Lake signed in 1998." We find that this letter is without significance because the "non-

aggression agreement" was not valid after Southaven's city elections in 2001.

                                     B. Limits on Equitable Estoppel

¶14.    Horn Lake states that equitable estoppel is not limited by the precedent set out above. Yet at least

one state has found that equitable estoppel does not apply where a governmental entity claims sovereign

immunity, see, e.g., Indiana Dep't of Envtl. Mgm't v. Conard, 614 N.E.2d 916, 921 (Ind. 1993),

except where there is "clear evidence that [the government's] agents made representations upon which the

party asserting estoppel relied." West Publ'g Co. v. Indiana Dep't of Revenue, 524 N.E.2d 1329,

1333 (Ind. Tax Ct.1988). However, the party claiming equitable estoppel against a governmental entity

"must show that estoppel is not inconsistent with the public interest, and this interest must be weighed and

balanced against the equities of the circumstances." Muncie Indus. Revolving Loan Fund Bd. v.

Indiana Const. Corp., 583 N.E.2d 769 (Ind. Ct. App. 1991).

¶15.    The public interest for Southaven to annex the PAA is without question. Southaven a growing by

leaps and bounds, and it needs more land in an area where land is at a premium. The cities of Southaven,

Horn Lake and Olive Branch are all jockeying for more land where undeveloped land is increasingly

scarce. Therefore, Horn Lake cannot show that estoppel "is not inconsistent with the public interest."

¶16.    Horn Lake claims that it detrimentally relied upon the agreement because, believing that the PAA

would eventually be annexed, it intentionally chose not to seek to annex the PAA when it had the

opportunity to do so. We find this contention to be without merit because Horn Lake, which seeks equity,

did not take affirmative steps to protect its rights under the Agreement. Horn Lake had a window of

opportunity to annex the PAA and it did not act. Weighing the equities, we find that Horn Lake was

"harmed" not by Southaven, but by its own negligence. This claim is without merit.

                                                     6
                 II.     WHETHER JUDICIAL ESTOPPEL SHOULD BAR
                         SOUTHAVEN'S ANNEXATION OF THE PAA.

¶17.    Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one

position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party

opposite. Mississippi Power & Light Co. v. Cook, 832 So. 2d 474, 482 (Miss. 2002); Mauck v.

Columbus Hotel Co., 741 So. 2d 259, 264 (Miss. 1999); Skipworth v. Rabun, 704 So. 2d 1008,

1015 (Miss. 1996). As we have stated:

                 [T]he doctrine "is based on expedition of litigation between the same
                 parties by requiring orderliness and regularity in pleadings." "[J]udicial
                 estoppel will be applied in civil cases where there is multiple litigation
                 between the same parties and one party knowingly 'assert(s) a position
                 inconsistent with the position in the prior' litigation." However, . . . where
                 the first position asserted was taken as a result of mistake, judicial
                 estoppel should not be invoked.

Mauck, 741 So. 2d at 264-65 (citations omitted).

¶18.    Horn Lake argues that Southaven is judicially estopped from annexing the PAA because of the

Agreement. Horn Lake alleges that the Agreement was entered in Cause No. 95-10-1199 in the Chancery

Court of DeSoto County, but a review of the record does not support this claim. No copy of the

Agreement included in the record has the style of a case or a civil action number. The copies of the

Agreement included in the record show only the signatures of representatives from Southaven and Horn

Lake and do not show the signature of a judicial officer. Southaven does not address this issue.

¶19.    For the sake of argument, consent decrees cannot ordinarily be modified without agreement by all

sides. Weeast v. Borough of Wind Gap, 621 A.2d 1074 (Pa. 1993). Nevertheless, municipalities that

unilaterally request to be let out of an old consent decree may be given special consideration on the ground

that an earlier city administration cannot bind succeeding administrations. Evans v. City of Chicago, 10


                                                       7
F.3d 474 (7th Cir. 1993). Rule 60(b)(5) of the Mississippi Rules of Civil Procedure allows for relief from

a judgment or order where "it is no longer equitable that the judgment should have prospective application."

Evans includes a worthwhile discussion of consent decrees and governmental entities and will be

reproduced here at length:

                Although the decree purports to last for all time -- and the district court's
                decision refusing to vacate the decree . . . reflects a belief that the
                commitments ought to run perpetually -- democracy does not permit
                public officials to bind the polity forever. What one City Council enacts,
                another may repeal; what one mayor decrees during his four-year term,
                another may revoke. Today's lawmakers have just as much power to set
                public policy as did their predecessors. "Chicago" speaks through its
                elected representatives, and the people are free to upset even the most
                enlightened policies of earlier times. The current mayor wants to be free
                of his predecessor's commitment, concluding that more flexibility over
                budgets will promote the public welfare. People of good will could be on
                either side of this disagreement; each mayor may have correctly perceived
                the needs of the moment.

                        Governments are in this respect unlike corporations or other
                contracting parties. A corporate board of directors may enter into
                commitments that continue after new directors take office; a legislature
                may not. True, governments may form contracts (for example, to build a
                new road or repay a loan) and must keep these commitments by virtue of
                the contract clause of the Constitution, Art. I, § 19, cl. 1. But temporary
                officeholders may not contract away the basic powers of government to
                enact laws -- or in this case to adopt budgets -- in the same way natural
                persons may make enduring promises about their own future behavior. .
                ..

10 F.3d at 478.

¶20.    Because Horn Lake has failed to show that the Agreement was ever entered as a consent decree

in a cause of action, judicial estoppel does not apply. Furthermore, had the Agreement been entered in

a cause of action, Southaven could have filed a motion for relief from judgment pursuant to M.R.C.P.




                                                     8
60(b)(6), which, under the above precedent, would probably have been granted. This claim is without

merit.

                 III.    WHETHER THE CHANCELLOR ERRED IN
                         DETERMINING THAT THE PROPOSED
                         ANNEXATION WAS REASONABLE UNDER THE
                         TOTALITY OF THE CIRCUMSTANCES.

¶21.     We have set out a list of factors to guide the chancellor in his determination of the reasonableness

of a city's annexation request. "These factors, however, are only indicia of reasonableness, not separate

and distinct tests in and of themselves." Bassett v. Town of Taylorsville,542 So. 2d 918, 921 (Miss.

1989). The chancellor must consider all of these factors and determine whether under the totality of the

circumstances the annexation is reasonable. Id. at 921-22; In the Matter of the Extension of the

Boundaries of the City of Vicksburg, 560 So. 2d 713, 716 (Miss. 1990); In re Enlargement of

Corporate Boundaries of the City of Booneville v. City of Booneville, 551 So. 2d 890, 892

(Miss. 1989); In the Matter of the Extension of the Boundaries of the City of Jackson, 551 So.

2d 861, 864 (Miss. 1989).

¶22.     A determination of "reasonableness" has taken on a rather dubious connotation in Mississippi

jurisprudence:

                 As the law now stands, "The judicial function is limited to the question
                 whether the annexation is reasonable." Jackson, 551 So. 2d at 863.
                 Reasonableness is determined by analyzing twelve factors announced by
                 this Court in prior cases to see what they "indicate." Id. This approach
                 has been criticized as arbitrary for failing to provide adequate guidelines
                 for reaching the ultimate determination. See In the Matter of the
                 Enlargement of the Corporate Limits and Boundaries of the
                 City of Gulfport, 627 So. 2d 292 (Miss. 1993), (Smith, J., dissenting,
                 "I am convinced that the test has been expanded so far that now it is
                 absolutely meaningless."); Matter of Boundaries of City of
                 Vicksburg, 560 So. 2d 713 (Miss. 1990) (Sullivan, J. dissenting, "


                                                      9
                'Reasonable' is now determined by the length of the chancellor's nose, or
                foot, if you prefer."); Matter of the Boundaries of City of Jackson,
                551 So. 2d 861, 878 (Miss. 1989) (Blass, J. dissenting, "[T]he
                proliferation of 'indicia of reasonableness,' . . . can only lead one to the
                conclusion that 'indicia of reasonableness' are either now devoid of
                substance or so malleable as to be meaningless."). Although we retain our
                "indicia" for the purposes of today's decision, we emphasize that fairness
                to all parties has always been the proper focus of our reasonableness
                inquiry. Thus, we hold that municipalities must demonstrate through plans
                and otherwise, that residents of annexed areas will receive something of
                value in return for their tax dollars in order to carry the burden of showing
                reasonableness.

In the Matter of the Extension of the Boundaries of the City of Columbus, 644 So. 2d 1168,

1171 (Miss. 1994). The test of reasonableness, then, has evolved into the twelve indicia, as well as an

emphasis on whether people in the annexed areas are to receive something in exchange for their tax dollars.

¶23.    The twelve indicia, as found in Columbus, 644 So. 2d 1168, 1173, as well as Jackson, 551 So.

2d 861, 864, are as follows: (1) the need to expand; (2) the path of growth; (3) potential health hazards

from sewage and waste disposal in the annexed areas, (4) the municipality's financial ability to make the

improvements and furnish municipal services promised; (5) the need for zoning and overall planning in the

area; (6) the need for municipal services in the area sought to be annexed; (7) whether there are natural

barriers between the city and the proposed annexation area; (8) past performance and time element

involved in the city's provision of services to its present residents; (9) economic or other impact of the

annexation upon those who live in or own property in the proposed annexation area; (10) impact of the

annexation upon the voting strength of protected minority groups; (11) whether the property owners and

other inhabitants of the areas south to be annexed have in the past, and the foreseeable future unless

annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy




                                                    10
economic and social benefits of the municipality without paying their fair share of taxes; and (12) any other

factors that may suggest reasonableness.

                                       A. The Need for Expansion

¶24.    The chancellor found that Southaven was a rapidly developing area with a “population explosion.”

Developments containing 4,614 residentials lots had been created since 1990. Between 1997 and 2001,

Southaven issued 3,782 building permits for residences. Southaven had experienced “unprecedented

commercial growth,” including retail establishments, warehousing and light industrial projects. Southaven

consisted of 34 square miles and the only vacant land left in the municipality had approved plans for

development. State rebated sales tax revenues reflected strong growth, increasing 68% between 1995 and

2001.

¶25.    Horn Lake does not question Southaven’s rapid growth, but states that all municipalities within

DeSoto County have had rapid growth. It further argues that Southaven has large vacant areas within the

city limits, something which we have determined to be relevant. See, e.g., Extension of the

Boundaries of City of Ridgeland v. City of Ridgeland, 651 So. 2d 548 (Miss. 1995); In re

Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So. 2d 270 (Miss.

1999); In the Matter of the Extension of Boundaries of City of Columbus, 644 So. 2d 1168,

1173 (Miss. 1994). Horn Lake points to the testimony of Southaven's planning director which revealed

that, in the twelve subdivisions approved since 1997, there were 4,774 vacant lots. Horn Lake also argues

that, when one compares the average of single family residence building permits over the last five years,

458, to the 4,774 vacant lots, Southaven has 10.4 years worth of vacant residential lots available for

development. Furthermore, in 2001, Southaven issued its lowest number (28) of commercial building

permits since 1997.

                                                     11
¶26.    Southaven contends that the numbers relied upon by Horn Lake were merely estimates and not

"hard numbers." Indeed, every response that Southaven's planning director made to questions about the

current percentage of development in Southaven's subdivisions included the word "probably."3

¶27.    Horn Lake also argues that there is no "spillover" growth or development in the PAA, such as there

was in Ridgeland, and that Southaven had not presented any plans for improving the PAA or to

implement municipal services therein. Southaven responds that the uncontradicted evidence showed that

the owners of the PAA expected to develop the land in the near future.

¶28.    We find that the chancellor's finding that this factor weighed in favor of Southaven was not

manifestly wrong and that the finding was supported by substantial and credible evidence.

                                             B. Path of Growth

¶29.    Southaven, as originally incorporated, lay to the north and east of Horn Lake, between Horn Lake

and the Tennessee state line. In three subsequent annexations, Southaven acquired tracts of land east and

south of its city limits. In fourth and fifth annexations, Southaven acquired land west of its city limits up to

U.S. Highway 51.

¶30.    The chancellor found that, although a portion of the PAA lay within Horn Lake’s path of growth,

it also lay within Southaven’s path of growth. He placed emphasis on the fact that, even though Horn Lake

initiated annexation proceedings to double its size, the land to be annexed did not include the PAA:

"Although the proposed area of annexation in this cause lies in extreme close proximity to the City of Horn




        3
          When asked what percentage each subdivision was "built out," Southaven's planning director
responded "probably a third"; "It's probably a little better than half"; It's probably better than a third built
out"; "Oh, probably half. Right at a half"; "Probably half"; "Probably around a third"; and "It's probably
close to three-fourths built out."

                                                      12
Lake’s current boundaries, they did not seek to include it in that annexation, choosing instead to

concentrate their efforts of annexation more to the west than to the south.”

¶31.    Horn Lake argues that Southaven's Comprehensive Plan showed U.S. Highway 51 as the

boundary of its annexation planning area, and that, therefore, the PAA was not in Southaven's

comprehensive plan.

¶32.    Southaven responds that whether or not a tract of land is included in a plan for annexation is

irrelevant to the issue of path of growth. Indeed, we have enumerated certain factors to be considered

when determining whether a proposed annexation lies in the path of growth: (1) evidence that the PAA is

immediately adjacent to the city, Biloxi, 744 So. 2d at 280; (2) evidence that the PAA is accessible by

in use public streets, highways and roads, id.; (3) evidence that the PAA is experiencing spillover of urban

development from the city, id.; Ridgeland , 651 So. 2d at 556; (4) the limited area available for

expansion, Biloxi, 744 So. 2d at 279; (5) the geography, id.; (6) development in the PAA, id.; and (7)

proposed subdivision development, Madison, 650 So. 2d at 497.

¶33.    Whether or not Southaven included the PAA in its comprehensive plan is irrelevant to the issue of

whether the PAA was in Southaven's path of growth. We find that the chancellor's finding that this factor

weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial

and credible evidence.

                                      C. Potential Health Hazards

¶34.    As the PAA is undeveloped with no residents and no structures, the chancellor found that there

were no health hazards from sewage or waste disposal which would affect the question of annexation.

¶35.    Horn Lake argues that this finding weighs against Southaven. We fail to follow the logic of this

argument. In other annexation cases, we have weighed this factor in favor of the annexing municipality

                                                    13
because the city's sewage and waste disposal are superior to those in the PAA. See, e.g., Hattiesburg,

840 So. 2d at 87. Because the PAA has no health hazards in the form of inadequately treated sewage or

waste, we find that the chancellor's finding that this factor weighed in favor of annexation was not manifestly

wrong and that the finding was supported by substantial and credible evidence. However, taking into

consideration Horn Lake's argument that there are no health hazards or waste disposal problems in the

PAA, this factor is at the least neutral.

                                            D. Financial Ability

¶36.    The chancellor found that Southaven’s willingness and financial ability to provide municipal services

was “without serious debate." Southaven's bond rating by Standard & Poor's was A+. Sales taxes

collections had increased. Assessed property taxes increased 58% from 1998 to 2002. Audits showed

that Southaven was a well-run and fiscally responsible municipality. The mayor testified that the budget was

based on conservative projections which resulted in a budgetary surplus. The chancellor found that,

“Southaven’s record for providing services to its citizens in all respects [is] exemplary [and] above and

beyond that which is required by law.

¶37.    Horn Lake contends that Southaven has absolutely no plans to provide any municipal services to

the PAA. The Southaven police testified that, since there were no residents in the PAA, only cows, little

police supervision was needed. The proposed Southaven fire station, which was near to but not within the

PAA, would be more than adequate to respond to any brush fires on the PAA. Moreover, Horn Lake

supplies water and emergency medical coverage to the PAA. Because Miss. Code Ann. § 21-1-33

requires a chancellor to find that "reasonable public and municipal services will be rendered in the annexed

territory within a reasonable time" before approving annexation, and because Southaven failed to present

any plan for the implementation of municipal services, the chancellor's decision was in error.

                                                     14
¶38.    Because the PAA contains only 310 acres and Southaven's proposed police and fire protection

are more than adequate for the PAA, and because Southaven has an excellent financial record, we find that

the chancellor's finding that this factor weighed in favor of Southaven was not manifestly wrong and that

the finding was supported by substantial and credible evidence.

                                             E. Need for Zoning

¶39.    The chancellor found that Southaven’s building and fire codes, zoning regulations, subdivision

regulations and enforcement officers were more than adequate to service not only the existing city but also

the proposed area of annexation. Since the PAA was totally unimproved and faced prospective

development, it would benefit from Southaven’s regulations. Furthermore, the PAA is only a part of the

tract of land owned by College Road Land Company. The rest of the tract already lies within Southaven's

city limits. It would be prudent, and the owners wish, to subject the entire tract to only one set of

regulations.

¶40.    Horn Lake argues that its zoning provisions are similar to Southaven's. Therefore, there can be no

reasonable finding that there is a need for zoning and planning in the PAA. ¶41.           We find that the

chancellor's finding that this factor weighed in favor of Southaven was not manifestly wrong and that the

finding was supported by substantial and credible evidence. However, taking into consideration Horn

Lake's argument that the regulations are similar, this factor is, at the least, neutral.

                                       F. Need for Municipal Services

¶42.    After the owners of the PAA indicated that they planned to make a large residential or commercial

development, the chancellor found that the PAA would indeed need the municipal services which

Southaven offered such as fire and police protection, water and sewage services, brush and garbage

removal and code enforcement. Southaven’s services exceeded those offered by DeSoto County.


                                                       15
Included in Southaven’s annexation proposal was the plan to build a fire station less than half a mile from

the PAA. Southaven's fire rating was 5 whereas the PAA's fire rating was 10. The PAA's fire rating would

be lowered if the annexation were approved. The chancellor also noted that Southaven would be able to

use radar to control speeding on Highway 51, something that, under state law, neither Horn Lake nor

DeSoto County could do.

¶43.    Horn Lake calls future development of the PAA "highly speculative" because the owners testified

that there were no immediate or definite plans for development. In fact, the owners requested development

over a twenty-year period. Therefore, the PAA does not require any municipal services now or in the

foreseeable future.

¶44.    If the chancellor's decision was "highly speculative," Horn Lake's argument is "highly speculative"

also. Much testimony supported the chancellor's finding that development of the PAA would begin in the

reasonable future. Also, the PAA had been partitioned between three groups of family members, and each

of the three groups quitclaimed their interest to the newly-formed College Road Land Company to unify

the three tracts so that development could take place. Finally, the owners had had the PAA rezoned from

agricultural to "planned business" and hired an engineer to draw up a master plan for development which

had been approved by the DeSoto County Planning Commission.

¶45.    We find that the chancellor's finding that this factor weighed in favor of Southaven was not

manifestly wrong and that the finding was supported by substantial and credible evidence.

                                             G. Natural Barriers

¶46.    The chancellor noted that the PAA immediately adjoined Southaven, that the PAA was a portion

of a tract of land, a part of which already was within Southaven’s city limits, that the east portion of the land

shared a common owner with the west portion of the land.


                                                       16
The PAA was intersected by U.S. Highway 51, which was not a barrier to annexation.

¶47.     Horn Lake concedes that Highway 51 is not a barrier, but submits that there should be some kind

of an effective and permanent barrier to divide cities. Highway 51 was one of the recognized barriers

between Horn Lake and Southaven.

¶48.     Horn Lake's argument is without merit because the relevant inquiry is whether the PAA is divided

by a natural or effective barrier, not, as Horn Lake suggests, whether, after annexation, natural or effective

barriers exists between two municipalities. See, e.g., Prestridge v. City of Petal, 841 So. 2d 1048,

1053 (Miss. 2003); In re Extension of the Boundaries of the City of Batesville, 760 So. 2d 697,

705 (Miss. 2000).

¶49.     Regardless, we have found that I-55 North was not a barrier to Southaven's expansion. Matter

of City of Horn Lake, 630 So. 2d 10, 13 (Miss. 1993). Therefore, Highway 51 should not be

considered to be a barrier to Southaven's expansion.

¶50.     We find that the chancellor's finding that this factor weighed in favor of Southaven was not

manifestly wrong and that the finding was supported by substantial and credible evidence.

                                            H. Past Performance

¶51.     The chancellor found that, based on his earlier discussion, Southaven’s past performance in

providing services was “not only acceptable, but beyond comparison.” The mayor testified that after the

last major annexation in 1997, the city immediately began looking for appropriate locations for a temporary

fire house, which was later turned into a permanent one. A police substation and a public works park

facility were built.

¶52.     Horn Lake counters that "Southaven's annexation expert refused to testify that Southaven exceeded

all other cities in the State in the fulfillment of promises, and therefore, there was simply no proof to support

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a finding that Southaven's past performance has been "beyond comparison." Horn Lake also points out

that there have been "numerous and repeated 'reportable conditions' within Southaven's audits, some of

which were violations of State law." However, Horn Lake finally admits that "the testimony of Southaven's

satisfactory fulfillment of its prior annexation promises was unrefuted, and accordingly, this indicia weighs

in favor of annexation by Southaven."

¶53.    Because this issue is uncontroverted, we find that the chancellor's finding that this factor weighed

in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and

credible evidence.

                                  I. Impact Upon Residents or Owners

¶54.    The chancellor found that no one lived in the PAA, and the only owner had requested annexation

by Southaven. A landowner's right to use his land "as he sees fit" is "cherished" by the Court. Hall v.

Wood, 443 So. 2d 834, 838 (Miss. 1983). See also Andrews v. Lake Serene Property Owners

Assoc., 434 So. 2d 1328, 1331, 1333 (Miss.1983). The landowner's use and enjoyment of his property

are limited only by the legitimacy of the purpose for which it is used. Home, Inc. v. Anderson, 235 So.

2d 680, 683 (Miss. 1970).

"For these rights to be meaningful, each property owner's use and enjoyment of his property must be

shielded from unreasonable interference by others--these 'others' ranging from the faceless sovereign to

one's next door neighbor." Hall, 443 So. 2d at 838.

¶55.    These principles apply to the case at bar. The landowners wished to be annexed by Southaven

because the greater part of the tract of land had already been annexed by Southaven, and they did not want

the tract to be divided by two governmental entities. These wishes should be followed unless an objector

can show that the landowners' wishes are not legitimate. Annexation is certainly a legitimate purpose.

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¶56.    We find that the chancellor's finding that this factor weighed in favor of Southaven was not

manifestly wrong and that the finding was supported by substantial and credible evidence.

                                 J. Impact on Minority Voting Strength

¶57.    The chancellor found that, since no one lived in the PAA, this factor has no relevance. We find that

the chancellor's finding that this factor is neutral was not manifestly wrong and that the finding was

supported by substantial and credible evidence.

                 K. Whether the Owners Would Benefit from Proximity to Southaven

¶58.    The chancellor found that after the PAA is developed for residential or commerical purposes, and

considering, Southaven’s rapid growth, the owners would enjoy a substantial increase in the value of the

property.

¶59.    Horn Lake points out that the PAA was a cow pasture. "Other than some occasional glances from

Southaven's police officers, there was zero proof that either the cattle or the landowners are enjoying

benefits from Southaven without paying their fair share of taxes."

¶60.    It is true that the PAA has not benefitted from Southaven's provision of services because it is

pasture land. Therefore, this factor should be in favor of Horn Lake.

                                            L. Other Factors

¶61.    The chancellor found that, considering Southaven’s long-standing relationship with the Horn Lake

Water Association, which had the certificate rights to the water and sewer of the PAA, Southaven’s

position was enhanced. A development which adjoined the PAA’s northeast corner, would enhance the

PAA’s development.

¶62.    Horn Lake argues that if the annexation were allowed, it would be yet another step toward the city

being landlocked. However, in view of the fact that Horn Lake has annexed a substantial amount of land


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in the recent past, the Court should find that Horn Lake will not be in danger of being landlocked by

Southaven's annexation of the PAA.

¶63.    We find that the chancellor's finding that this factor weighed in favor of Southaven was not

manifestly wrong and that the finding was supported by substantial and credible evidence.

                                           CONCLUSION

¶64.    We find that Horn Lake's claims of equitable estoppel and judicial estoppel are without merit

because of the prevailing law that succeeding city administrations cannot be bound by the actions of

preceding city administrations. We further find that the chancellor's dismissal of Horn Lake's objections

and his findings that Southaven's proposed annexation was reasonable under all the circumstances were

not manifestly wrong and that his findings were supported by substantial and credible evidence. Therefore,

the trial court's judgment is affirmed.

¶65.    AFFIRMED.

     SMITH, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J.,
CONCURS IN RESULT ONLY. COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. PITTMAN, C.J., AND DIAZ, J., NOT PARTICIPATING.




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