                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2018-CA-00325-SCT

SMITH PETROLEUM, INC. f/k/a MISSISSIPPI
OIL, INC.

v.

LAMAR COUNTY SCHOOL DISTRICT


DATE OF JUDGMENT:                         02/05/2018
TRIAL JUDGE:                              HON. JOHNNY LEE WILLIAMS
TRIAL COURT ATTORNEYS:                    SHIRLEY M. MOORE
                                          CRAIG N. ORR
                                          RICHARD D. NORTON
                                          WILLIAM A. WHITEHEAD, JR
COURT FROM WHICH APPEALED:                LAMAR COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  SHIRLEY M. MOORE
                                          CRAIG N. ORR
ATTORNEYS FOR APPELLEE:                   WILLIAM A. WHITEHEAD, JR.
                                          RICHARD D. NORTON
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              AFFIRMED - 05/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

       RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1.    The Lamar County School District denied a request by Smith Petroleum to erect and

construct an LED advertising billboard on its Sixteenth Section leasehold located on Old

Highway 11 in Hattiesburg, Mississippi. Smith Petroleum filed its Notice of Appeal and Bill

of Exceptions in the Chancery Court of Lamar County. The chancellor affirmed the School
District’s denial of Smith Petroleum’s request to erect and construct the LED billboard.

Finding no error, we affirm the judgment of the chancery court.

                        FACTS AND PROCEDURAL HISTORY

¶2.    The Lamar County Board of Education, N.B. Royals, and Kirk Frazier, as tenants in

common, executed a Sixteenth Section Land Lease and Contract for a term of forty years for

property located at 4041 Old Highway 11 in Hattiesburg, Mississippi. The lease contained

the following provision:

                       SUBLEASING OR ASSIGNMENT OF LEASE

              Lessee covenants and agrees not to sublease, assign, transfer, or convey
       by warranty deed, quitclaim deed, or any other conveying instrument the herein
       described leased property and the leasehold interest therein without the
       expressed prior consent of the Lessor. In the event the Lessee requests and the
       Lessor approves any subleasing, transfer, or assignment of this lease or any
       portion thereof, then the Lessor may, in its discretion, require all parties to the
       transaction to obtain new leases as to each individual interest.

After obtaining approval from the School District, Frazier and Royals assigned the property

to Mississippi Oil, Inc., by quitclaim deed. Subsequently, Mississippi Oil merged with Smith

Petroleum.

¶3.    Smith Petroleum then entered into an exclusive agreement with Busby Outdoor, LLC,

to erect and construct an advertising billboard depicted as an “LED Showcase Sign” on 2,945

square feet (0.07 acres) of the leased property. Under the agreement, Busby was to market

advertising and to pay Smith Petroleum royalties for the forty-year term1 of the agreement.

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           The agreement stated the following:

       2. Term. The term of this Lease shall commence upon the erection of the
       LED structures, and shall be for an initial period of forty (40) years “Term.”

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Busby was also granted exclusive rights to construct and erect future billboards on the

property, “including necessary supporting structures, devices, illumination facilities and

connections, service ladders and other appurtenances thereon.” Busby was responsible for

all power bills, internet, and insurance expenses, in addition to all maintenance of the

physical structure, including the upkeep, painting, and illumination of the billboard.

¶4.    Busby agreed to cover all initial costs of erecting and constructing the billboard,

including all “permitting costs, materials, labor for construction, maintenance, shipping costs,

attorney’s fees, and any other associated construction costs.” Although the parties agreed that

Smith Petroleum would be the owner of the billboard, Smith Petroleum could only move the

billboard and other improvements at the expiration of the forty-year lease.

¶5.    Busby, on behalf of Smith Petroleum, sought a sign permit from the City of

Hattiesburg. The members of the Hattiesburg Planning Commission voted to approve the

permit.

¶6.    During construction, the Lamar County School Board contacted Busby and asked that

construction stop and that Busby attend the May 9, 2017, Board meeting, because the

construction of the billboard needed to be addressed and approved by the Board. In addition

to Busby, representatives of Lamar Outdoor and Headrick’s Signs attended the meeting to

discuss the installation of billboards along Old Highway 11. Before the May 9, 2017,

meeting, Lamar Outdoor had sought the Board’s approval for the placement of a sign across


       This Agreement may be renewed by mutual agreement and further negotiation
       of the parties year to year after the expiration of the initial term.

(Emphasis added.)

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the street from Smith Petroleum’s property. The Board denied that request. At the meeting,

Headrick’s Signs requested that the discussion be tabled to allow additional consideration for

the use of billboards on Old Highway 11.

¶7.    The billboard issue was addressed again at the June meeting. After learning that a

written agreement existed between Smith Petroleum and Busby, the Board tabled the issue

once again to allow time for Smith Petroleum to produce the agreement. At the August 14,

2017, meeting, the Board denied the request to construct the sign, citing drivers’ safety and

Smith Petroleum’s failure to seek Board approval before seeking a permit from the City.

¶8.    Smith Petroleum later filed its Notice of Appeal and Bill of Exceptions. After hearing

arguments from the Board and Smith Petroleum, the chancellor affirmed:

               The title of the agreement between Smith Petroleum and Busby is
       immaterial, rather the effect and substance of the agreement appears to be that
       of a lease agreement. A close look at the agreement reveals that it is, in fact,
       a conveyance of an interest in the leasehold by Smith Petroleum to Busby for
       a term of forty (40) years. Such a conveyance of the Sixteenth Section
       Leasehold interest requires board approval, as expressly set forth in the
       original lease agreement of January 6, 1992.

              The Lamar County School Board was within it’s authority by
       withholding consent, as it relates to the instrument of conveyance between
       Smith Petroleum and Busby. The Board clearly articulated reasons for which
       its consent was being withheld and that decision should not be disturbed.

                            STATEMENT OF THE ISSUES

       I.     Whether the chancery court erred in finding that Smith
              Petroleum’s license agreement with Busby was a sublease that
              required Board approval.

       II.    Whether the Board waived its argument that Smith Petroleum’s
              agreement with Busby was a sublease.



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       III.   Whether the chancery court erred in finding that the Board’s
              decision was not arbitrary or capricious and did not deprive Smith
              Petroleum of its constitutional rights of equal protection.

                                STANDARD OF REVIEW

¶9.    “With regard to the facts of the case—both the evidentiary facts and the ultimate

facts—our inquiry is limited to a determination of whether there be substantial credible

evidence undergirding the School Board’s findings.” Merchant v. Bd. of Trs. of Pearl Mun.

Separate Sch. Dist., 492 So. 2d 959, 962 (Miss. 1986). If this Court finds substantial credible

evidence, we will accept those findings. Everett v. Bd. of Trs. of Meridian Mun. Separate

Sch. Dist., 492 So. 2d 277, 283 (Miss. 1986). This Court will only intervene when “a school

board has acted in a manner which is arbitrary and capricious and where its actions are not

supported by substantial evidence . . . .” Noxubee Cty. Bd. of Educ. v. Givens, 481 So. 2d

816, 820 (Miss. 1985) (citing Madison Cty. Bd. of Educ. v. Miles, 252 Miss. 711, 173 So.

2d 425 (1965)).

                                         ANALYSIS

       I.     Whether the chancery court erred in finding that Smith
              Petroleum’s license agreement with Busby was a sublease that
              required Board approval.

¶10.   As provided by Mississippi Code Section 29-3-1, the Board holds Sixteenth Section

lands in trust for the benefit of the public schools. As such, the Board, “shall have control

and jurisdiction of said school trust lands and of all funds arising from any disposition . . .

.” Miss. Code Ann. § 29-3-1(1) (Rev. 2010). The Board is required, “to manage the school

trust lands and all funds arising therefrom as trust property.” Id. The Board “shall assure that



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adequate compensation is received for all uses of the trust lands, except for uses by the

public schools.” Id. (emphasis added).

¶11.   This Court must consider whether the erecting and constructing of an “LED Showcase

Sign” and Busby’s ultimate use of the described 2,945 square feet constitutes “use of the trust

land.” Smith Petroleum and Busby argue that they entered into a “license agreement.” The

Board replies that the agreement is a renamed, repackaged sublease that requires prior

approval from the Board.

¶12.   The agreement at issue is titled “Exclusive Agreement to License.” While Smith

Petroleum and Busby argue that this document was a license agreement, language within the

document belies their assertion. The term was described as a forty-year lease. Furthermore,

Busby was granted the exclusive right to market, sell, and rent advertising space on

billboards and to collect all revenue generated. Busby would only advertise for Smith

Petroleum in the event space was available, and Smith Petroleum was to receive royalty

payments. Busby also was tasked with maintaining the property and obtaining insurance.

Busby was granted the right to pledge, assign, mortgage, or encumber the agreement in order

to secure financing. Finally, the agreement was subject to transfer by attachment, execution,

proceedings in insolvency or bankruptcy, or receivership.

¶13.   The law on licenses and leases in Mississippi is limited. One Mississippi case has

provided that the distinction between a lease of land and a license is that

       a lease conveys an interest in land, requires a writing to comply with the statute
       of frauds, and transfers possession, while a license merely excuses acts done
       by one on the land possession of another that without the license would be a
       trespass, and conveys no interest in the land[.]

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Hotel Markham v. Patterson, 202 Miss. 451, 32 So. 2d 255, 256 (1947) (quoting Baseball

Publ’g Co. v. Bruton, 302 Mass. 54, 55, 18 N.E.2d 362, 363 (1938)). The Hotel Markham

Court went on to state that

       a license is defined to be an authority to do some act or a series of acts on the
       land of another without passing an estate in the land. It amounts to nothing
       more than an excuse for the act, which would otherwise be a trespass. A
       leasehold is an interest in real property; it carries a present interest and estate
       in the land and the main criterion is the right of possession of land.

Id. at 256. A treatise on landlords and tenants also provides

       [T]he distinction between a lease and a license is the right of the possession of
       the land. If a contract confers exclusive possession of the premises or a portion
       thereof as against the whole world, including the owner, it is a lease. If it
       merely confers a privilege or permission to use or occupy under the owner, it
       is a license.

52 C.J.S. Landlord & Tenant § 340, Westlaw (database updated Mar. 2019) (citations

omitted).

¶14.   One primary criterion used to distinguish a lease from a license is the “right of

possession of the land.” The agreement between Smith Petroleum and Busby is an agreement

to erect and construct a permanent structure on Sixteenth Section land. Busby was granted

exclusive access and control of that billboard to the exclusion of Smith Petroleum, which

cannot remove that physical structure until the expiration of the forty-year term. This

agreement attempted to give Busby an undivided interest in the specifically described

Sixteenth Section land without prior approval from the Board. We find that the trial court did

not err in finding that the instrument was a sublease, which required Board approval.

       II.    Whether the Board waived its argument that Smith Petroleum’s
              agreement with Busby was a sublease.

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¶15.   Smith Petroleum contends that the Board waived arguing that the agreement was a

sublease. The Board argues that it maintained from the beginning, when it first contacted

Busby and asked that construction cease, that the agreement was a sublease. It requested that

Smith Petroleum and Busby attend the Board’s meeting. Even after receiving the agreement,

the Board still maintained the conveyance was a sublease based on the contents of the

document. We find that the Board did not waive its argument that the agreement was a

sublease.

       III.   Whether the chancery court erred in finding that the Board’s
              decision was not arbitrary or capricious and did not deprive Smith
              Petroleum of its constitutional rights of equal protection.

¶16.   The minutes of the August 14, 2017, meeting reflect that the Board reasonably

exercised its statutory authority to manage its Sixteenth Section property. The Board

discussed safety concerns, prior decisions denying requests to for similar signs, the glare of

an LED sign, and the close proximity to the roadway. By a unanimous vote, the Board agreed

to deny Smith Petroleum’s request.

¶17.   The Board did not act in an arbitrary or capricious manner. The Board expressed

concerns with safety, including the glare emitted by LED billboard, the proximity to the road

traveled by students, and the condition of the road (the curve) where the billboard would be

constructed. Smith Petroleum and Busby were not treated any differently than others who had

requested permission to construct LED billboards. The Board’s decision was consistent with

its previous denials of such requests from Lamar Outdoor and Headrick’s Signs. Smith




                                              8
Petroleum’s claim that the Board acted arbitrarily and capriciously and that its decision

deprived Smith Petroleum of its constitutional rights is without merit.

                                     CONCLUSION

¶18.   The agreement between Smith Petroleum and Busby was a sublease that required prior

approval of the Board. Once approval was sought, the Board did not act arbitrarily or

capriciously in denying the request to construct an LED billboard on Sixteenth Section land.

The learned chancellor did not err in affirming the findings of the Board, which were

supported by substantial evidence. We affirm the judgment of the chancery court.

¶19.   AFFIRMED.

    KITCHENS AND KING, P.JJ., COLEMAN,                            MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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