                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-CA-01215-SCT
NETTLETON CHURCH OF CHRIST, AN
UNINCORPORATED RELIGIOUS ASSOCIATION,
THE TOWN OF NETTLETON, MISSISSIPPI AND
EARNEST SULLIVAN
v.
SANDRA R. CONWILL

DATE OF JUDGMENT:                               11/03/92
TRIAL JUDGE:                                    HON. TIMOTHY E. ERVIN
COURT FROM WHICH APPEALED:                      MONROE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                        MICHAEL G. THORNE
ATTORNEY FOR APPELLEE:                          HENRY J. APPLEWHITE
NATURE OF THE CASE:                             CIVIL - REAL PROPERTY
DISPOSITION:                                    REVERSED AND RENDERED - 2/20/97
MOTION FOR REHEARING FILED:                     3/4/97
MANDATE ISSUED:                                 4/13/98




     BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.


     PITTMAN, JUSTICE, FOR THE COURT:




¶1. The proceedings and disposition relating to the issues in the case at bar actually began in another
proceeding, not currently on appeal, between these same and other parties, also concerning the
disputed land, filed in the Monroe County Chancery Court and heard by Judge Timothy Ervin.
Sandra R. Conwill filed a complaint against Nettleton Church of Christ, the Town of Nettleton and
Earnest Sullivan (collectively "Town of Nettleton") to remove cloud from title and to confirm title to
real property and for an injunction against all defendants. By way of final decree entered on March 1,
1991, Conwill's complaint was dismissed on a motion for directed verdict made by the Town of
Nettleton for her failure to prove her claim.

¶2. Subsequently, on August 13, 1991, Conwill filed a second complaint, against the Town of
Nettleton seeking a declaratory judgment and other relief. In her second complaint, Conwill alleged
that she was owner in fee simple of the disputed property pursuant to her having obtained a default
judgment from the heirs and devisees of the last record owners of the property in dispute and having
obtained quitclaim deeds from certain other property owners. In the alternative, Conwill alleges that
she is the owner in fee simple of the disputed land. In a final decree dated November 3, 1992, the trial
court, stating that it had considered the pleadings of the parties, the stipulation, and all memorandum
trial briefs, ruled against the Town of Nettleton based upon Conwill's theory of ownership, thereby
vesting fee simple title in the disputed land to Conwill. On November 30, 1992, the Town of
Nettleton filed its notice of appeal with this Court.

                                      DISCUSSION OF LAW

¶3. This Court will not disturb the factual findings of the chancellor unless said factual findings are
manifestly wrong or clearly erroneous. McAdory v. McAdory, 608 So. 2d 695, 699 (Miss. 1992).
The Town of Nettleton contends that according to prevailing case, law, the Town of Nettleton had
the ability to sell to the Nettleton Church of Christ the property in dispute, as the property had been
dedicated to the town via a grant in fee simple under the theories of common law dedication and
statutory dedication. Under a theory of common law dedication, there are no sufficient facts which
could show an intent on the part of the Town of Nettleton to abandon said property, and under a
theory of statutory dedication, there is no possibility of abandonment of the dedication. The Town of
Nettleton maintains that the land in dispute was dedicated to the Town of Nettleton and that said
dedication was accepted and never abandoned.

                I. Was there a proper dedication of private lands for public use?

¶4. Dedication is the setting aside of land for public use. It "has been defined as an appropriation of
realty by the owner to the use of the public and the adoption thereof by the public having respect to
the possession of the land and not of the permanent estate." 23 Am. Jur. 2d, Dedication § 1. There
are two types of dedication: common law and statutory. Two distinctions separate the different types
of dedication. First, the common law dedication operates by way of an equitable estoppel, whereas a
statutory dedication operates by way of grant. Second, a common law dedication usually creates a
mere easement, whereas in a statutory dedication the fee of the property is in the public. 23 Am. Jur.
2d, Dedication § 3.

¶5. It is well-settled law in Mississippi that land sold according to a plat or map will dedicate the
streets, alleys, squares, and other public ways marked on the map or plat to the public for public use.
See, e.g., Luter v. Crawford, 230 Miss. 81, 92 So. 2d 348 (1957); Skrmetta v. Moore, 227 Miss.
119, 86 So. 2d 46 (1956); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927);
Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958 (1904); City of
Vicksburg v. Marshall, 59 Miss. 563 (1882); Briel v. City of Natchez, 48 Miss. 423 (1873); Vick
and Rappleye v. Mayor and Alderman of Vicksburg, 1 How. 379 (Miss. 1837).

¶6. Mississippi Code Annotated section 21-19-63 provides for statutory dedication. The statute reads
as follows:

     The governing authorities of municipalities may provide that any person desiring to subdivide a
     tract of land within the corporate limits, shall submit a map and plat of such subdivision, and a
     correct abstract of title of the land platted, to said governing authorities, to be approved by
     them before the same shall be filed for record in the land records of the county. Where the
     municipality has adopted an ordinance so providing, no such map or plat of any such
     subdivision shall be recorded by the chancery clerk unless same has been approved by said
     governing authorities. In all cases where a map or plat of the subdivision is submitted to the
     governing authorities of a municipality, and is by them approved, all streets, roads, alleys and
     other public ways set forth and shown on said map or plat shall be thereby dedicated to the
     public use, and shall not be used otherwise unless and until said map or plat is vacated in the
     manner provided by law, notwithstanding that said streets, roads, alleys or other public ways
     have not been actually opened for the use of the public.

(Emphasis added.)

¶7. This section provides for the dedication of portions of the land which the subdivision maps
purport to be public property. This statute seems to embrace the holding of Panhandle Oil Co. v.
Trigg, 148 Miss. 306, 114 So. 625 (1927), and codify it. The Town of Nettleton correctly states that
it has a statutory dedication. Both parties agree that the Holmes Survey is authentic and the survey
that was referenced in all the transactions concerning the property in Block 16. Thus, from a literal
reading of the statute, it seems that the alleys have been dedicated to the land. The 100' x 100' block
in the middle is not clearly included in the dedication. The statute refers to "streets, roads, alleys and
other public ways." This block referred to as Tract #1 is a square piece of property in the middle of
all the subdivided lots. It does not seem to be a street, road or alley, etc. Thus, we must ask, "Can it
be considered to be dedicated like the other alleys?" American Jurisprudence 2d states the following
in regards to statutory dedication:

     The doctrine of dedication by plat or map is frequently connected with the sale of lots shown on
     a plat or map. By making such a sale, the owner of a tract of land manifests an intent to
     dedicate the streets, alleys, parks, squares, or other places designated on the plat or map for
     public use, unless a contrary intent is shown, as where it appears that the reference to or
     mention of a street in the plat or map is solely for the purpose of description.

23 Am. Jur. 2d, Dedication § 31 (emphasis added).

¶8. The terminology "streets, roads, alleys and other public ways" is not intended to limit the
dedication to merely passageways. It seems evident that other public ways include open squares in
the center of a block. This Court has previously stated that "'[u]nless an intention to the contrary is
disclosed, it is generally held that where the owner sells real property with reference to a map or plat,
he manifests an intention to dedicate to public uses squares or parks indicated on the map or plat.'"
Board of Mayor and Aldermen of Yazoo City, Miss. v. Wilson, 232 Miss. 435, 440-41, 99 So. 2d
674, 677 (1958) (emphasis added). It is evident that Conwill did not show any contrary intent.
Therefore, the square may be considered dedicated just as the alleyways were dedicated. We hold it
to be a public way, thus, the Town of Nettleton has fee simple title in the property and it was not
error for them to attempt to sell the land. The court below was in error and should be reversed.

        II. Whether or not the property has been abandoned by the Town of Nettleton?

¶9. Because we have determined there to be a statutory dedication, there is no possibility of
abandonment. However, even if there was a common law dedication, we still would not find an
abandonment by the Town of Nettleton. If the Town of Nettleton abandoned said dedication, it
would revert and subsequently vest title in the abutting property owners. "To constitute an
abandonment, the use for which the property is dedicated must become impossible of execution, or
the object of the use must wholly or totally fail." 23 Am. Jur. 2d Dedication § 67. We have held that
mere nonuser will not constitute an abandonment. Bright v. Michel, 242 Miss. 738, 137 So. 2d 155,
158 (1962).

¶10. Conwill's only argument to support abandonment is nonuser. She states that the minutes of the
Board reflecting that the 100' x 100' was surplusage is evidence of abandonment. However, this
evidence does not rise to the requirements of abandonment. Thus, the Town of Nettleton has a
proper dedication that has not been abandoned. Therefore, it is owner in fee simple.

                                          CONCLUSION

¶11. The Town of Nettleton is the property owner in fee simple of the disputed land. The land was
statutorily dedicated to the city pursuant to Miss. Code Ann. § 21-19-63. Thus, the decision of the
lower court should be reversed and rendered.

¶12. REVERSED AND RENDERED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., BANKS, McRAE, ROBERTS AND SMITH,
JJ., CONCUR. MILLS, J., NOT PARTICIPATING.


     BANKS, JUSTICE, DISSENTING TO THE DENIAL OF THE MOTION FOR
     REHEARING:




¶13. After a thorough review of the record and the relevant law in this case, I am convinced there is
no basis for this Court's original conclusion that statutory dedication of property under Mississippi
law vests fee simple ownership in the public. Since the Town of Nettleton could not sell an interest
which it did not possess, I dissent from the majority's denial of the motion for rehearing.

¶14. The Town of Nettleton contends that according to prevailing case law, the town had the ability
to sell the property in dispute to the Nettleton Church of Christ, as the property had been dedicated
to the town via a grant in fee simple under the theories of common law dedication and statutory
dedication. In my view, the Court need not reach the question of whether the land was in fact
dedicated to the town, since under either theory the town received only a public easement in the
property. It follows that the town could not sell the fee simple interest as it purported to do.

¶15. Under the common law, it has long been settled that land sold according to a plat or map will
dedicate the streets, alleys, squares, and other public ways marked on the map or plat to the public
for public use. See, e.g., Vick and Rappleye v. Mayor and Aldermen of Vicksburg, 2 Miss. (1
Howard) 379, 431-34 (1837); Briel v. City of Natchez, 48 Miss. 423, 436 (1873); City of Vicksburg
v. Marshall, 59 Miss. 563, 571 (1882); Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss.
304, 312, 37 So. 958, 959 (1904); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 312, 114 So. 625,
626 (1927); Skrmetta v. Moore, 227 Miss. 119, 131, 86 So. 2d 46, 48 (1956); Luter v. Crawford,
230 Miss. 81, 88-89, 92 So. 2d 349, 351-52 (1957). It is also well-settled that upon proper
acceptance of the dedication by the municipality, the interest which that municipality receives under
the common law is an easement. See e.g., Briel, 48 Miss. at 437; Indianola Light, Ice & Coal, 85
Miss. at 312, 37 So. at 959; Skrmetta, 227 Miss. at 129-31, 86 So. 2d at 47-49.

¶16. The Town of Nettleton contends, however, that the town owned the disputed property in fee
simple by virtue of statutory dedication. It contends that Miss. Code Ann. § 21-19-63 (1990)
provides for statutory dedication, and that "[s]uch statutory dedication would seem to operate as a
grant . . ." The statute reads as follows:

     The governing authorities of municipalities may provide that any person desiring to subdivide a
     tract of land within the corporate limits, shall submit a map and plat of such subdivision, and a
     correct abstract of title of the land platted, to said governing authorities, to be approved by
     them before the same shall be filed for record in the land records of the county. Where the
     municipality has adopted an ordinance so providing, no such map or plat of any such
     subdivision shall be recorded by the chancery clerk unless same has been approved by said
     governing authorities. In all cases where a map or plat of the subdivision is submitted to the
     governing authorities of a municipality, and is by them approved, all streets, roads, alleys and
     other public ways set forth and shown on said map or plat shall be thereby dedicated to the
     public use, and shall not be used otherwise unless and until said map or plat is vacated in the
     manner provided by law, notwithstanding that said streets, roads, alleys or other public ways
     have not been actually opened for the use of the public.

Miss. Code Ann. § 21-19-63 (1990).

¶17. It is worth noting that another statute, Miss. Code Ann. § 17-1-23 (Supp. 1997), appears in that
part of the Code dealing with Zoning, Planning and Subdivision Regulation, and contains the same
provision. Section 21-19-63 and § 17-1-23(3) are essentially identical and have common statutory
roots. Section 17-1-23, however, contains additional subsections regarding the permissible content of
municipal ordinances. Section 17-1-23(1) discusses dedication to municipalities of subdivision lands
and provides:

     (1) When new subdivisions are laid out, the governing authority of each municipality or county
     may, before allowing dedication, impose such terms as may be deemed necessary to make the
     provisions of Sections 17-1-1 through 17-1-27, inclusive, effective, and such governing
     authorities may receive easements in the land affected whereby such sections may be made
     effective.

Miss. Code Ann. § 17-1-23(1) (Supp. 1997) (emphasis added). This language originated in 1924, as
part of an Act the purpose of which was, among other things, "to facilitate the adequate provision of
transportation, water, sewerage, schools, parks and other public requirements." 1924 Miss. Laws ch.
195. The reference suggests that statutory dedication in Mississippi conveys no more than that which
the common law conveyed--an easement.

¶18. In addition, it is generally recognized that where statutes, by their terms and necessary
implications, and the common law are not repugnant, they co-exist and will be given effect. "The
presumption is that the legislature does not intend to make alterations in the law beyond what it
explicitly declares, either by express terms or by necessary implication, and does not intend to
overthrow fundamental principles or to infringe existing rights, without expressing or clearly implying
such intention." Sanders v. Neely, 197 Miss. 66, 82, 19 So. 2d 424, 426 (1944). Other states are in
accord with the "generally recognized rule to the effect that where the grant made by the dedication,
whether by statute or otherwise, does not provide for the vesting of the fee in a public entity the
dedication is analogous to a mere taking by eminent domain where the fee is not taken." Payne v.
City of Laramie, 398 P.2d 557, 562 (Wyo. 1965). See also Babin v. City of Ashland, 116 N.E.2d
580, 587 (Ohio 1953); Bryant v. Gustafson, 40 N.W.2d 427, 434 (Minn. 1950).

¶19. The majority, as its sole ground for concluding that this state's legislature intended to deviate
from the common law rule, offers a general (and slightly misconstrued) passage from a legal
encyclopedia stating that in statutory dedications the fee of the property is in the public.(1)

¶20. In my view, there is some indication that the legislature of this state assumed that a statutory
dedication would grant only an easement. There is absolutely no indication that the legislature
affirmatively intended a statutory dedication to grant a fee simple. I would hold, therefore, that under
the theory of statutory dedication a municipality receives an easement in the property which is
dedicated to public use. Since the town acquired a mere easement under either a common law or
statutory theory of dedication, it follows that it could not sell the fee simple title to the Church.

¶21. Under this analysis, two questions would remain. The first is whether the town could be deemed
to have sold an easement to the Church rather than the fee simple title. Even assuming that the town
acquired an easement in the disputed tracts to begin with, however, the land would have been
dedicated for public use. It is elementary that a public easement may not be privatized. The second
question would be whether the town presently retains an easement. Again, assuming that it was ever
acquired, "'[a]n easement dedicated to the public may be abandoned by unequivocal acts showing a
clear intent to abandon. But the acts must show destruction of the easement, that its legitimate use is
impossible by an act of the owner, or an intention to abandon permanently. . .'" Skrmetta, 227 Miss.
at 130, 86 So. 2d at 48 (quoting 16 Am. Jur., Section 65, p. 412). We have held that mere nonuser
will not constitute an abandonment. See e.g., Bright v. Michel, 242 Miss. 738, 747, 137 So. 2d 155,
158 (1962).

¶22. Here, the conduct of the town went beyond mere nonuser. It was conceded by the defendants
that the town considered the property to be surplusage and no longer useful to the public. Indeed,
this was the reason the town decided to sell the property in the first place. I would conclude that this
conduct by the town constitutes clear and unequivocal intention to abandon any public easement that
it may have once acquired in the property. This abandonment of the public right-of-way by the
municipality returned use and possession of the property to its owner. See Mississippi State
Highway Comm'n v. McClure, 536 So. 2d 895 (Miss. 1988). Thus, the chancellor was not
manifestly in error when he held that Conwill is the owner in fee simple of the land in question.

¶23. For the foregoing reasons, I would grant the motion for rehearing and affirm the lower court's
judgment. Accordingly, I dissent.

PRATHER, C.J., JOINS THIS OPINION.
1. Actually, the passage states that in most statutory dedications the fee is in the public. See 23 Am.
Jur. 2d Dedication § 3 (1983).
