Brinsmade v. City of Biloxi
| Docket Number: | 2009-CA-01906-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-30-2011 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Vacating an easement - Authority of municipality - Section 17-1-23(4) - Section 21-17-1(2)(a) - Section 21-37-7 - Public safety - Judicial notice - M.R.E. 201 - Municipal ordinance Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Roberts, Carlton, Maxwell and Russell, JJ. Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result without separate written opinion Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 10-26-2009 Appealed from: Harrison County Circuit Court Judge: Lisa P. Dodson Disposition: AFFIRMED CITY COUNCIL’ S VACATUR OF EASEMENT Case Number: A2402-08-280 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Akbar F. Brinsmade |
MALCOLM F. JONES |
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| Appellee: | City of Biloxi, Mississippi | LES W. SMITH LAUREN REEDER MCCRORY | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Vacating an easement - Authority of municipality - Section 17-1-23(4) - Section 21-17-1(2)(a) - Section 21-37-7 - Public safety - Judicial notice - M.R.E. 201 - Municipal ordinance |
| Summary of the Facts: | The City of Biloxi voted to vacate an unimproved easement in the Edgewater Cove Subdivision. Akbar Brinsmade, a resident of an adjoining subdivision, filed suit against the City with a bill of exceptions in the Harrison County Circuit Court. He claimed that vacating the easement was against public safety, and the City did not follow pertinent statutes and local ordinances required to vacate the easement properly. The circuit court affirmed the City’s decision to vacate the easement, and Brinsmade appeals. |
| Summary of Opinion Analysis: | Issue 1: Vacating an easement Brinsmade argues that section 17-1-23(4) prohibits the City’s vacation of the public easement without his written approval, and the circuit court erred by ruling that he was not an “interested person directly affected by the decision,” as referenced by the statute. Brinsmade is incorrect in his assertion that section 17-1-23(4) controls here. First, the subsection specifically refers to a landowner who wishes to vacate or alter a plat in a subdivision. The statute does not apply to a municipality’s authority to vacate public easements. Further, Brinsmade is neither an owner of the property in question nor does his lot border the easement. The easement is in a neighboring subdivision. The applicable statute regarding municipally owned easements is section 21-17-1(2)(a). In addition, section 21-37-7 gives a municipality the power to close and vacate any street or alley, provided due compensation is made to the abutting landowners for any sustained damages. Neither of these statutes requires written approval by persons directly affected by the vacation or by adjoining landowners. Brinsmade has reasonable access his property using a thoroughfare in his own subdivision, in the same manner as he did when he purchased the property years ago. Therefore, the closing of the street does not deprive Brinsmade of reasonable and adequate access to his property, and as such, he is unable to show that he is specially damaged by the vacating of the easement. Issue 2: Public safety Brinsmade argues that the vacatur of the easement is detrimental to public safety in the event of an evacuation, and the circuit court and the City failed to consider these public safety issues in their decisions. Brinsmade cites no authorities to support his argument. In addition, the map included in the record does not show how any significant congestion would be alleviated if the easement were available for use. Issue 3: Judicial notice Brinsmade argues that the circuit court erred by failing to consider a previous declaratory judgment by the chancery court as required by M.R.E. 201. The declaratory judgment ordered that the public easement in question was subject to section 17-1-23(3), and until the statutory requirements were met, the easement could not be considered vacated. Under Rule 201(d), a court shall take judicial notice if requested by a party and supplied with the necessary information. Although Brinsmade included a copy of the declaratory judgment from the chancery court in his record excerpts on appeal, he did not include any pleadings or orders from the chancery court in his bill of exceptions to the circuit court. It is well settled that the bill of exceptions constitutes the record on appeal from a municipality’s decision, and the circuit court must not consider matters that are not a part of that record. Issue 4: Municipal ordinance Brinsmade argues that the circuit court erred by not considering whether the City violated its own rules and ordinances. Brinsmade did not include these ordinances for review in either his notice of appeal or in the bill of exceptions. Evidence outside the bill of exceptions is not to be considered on appeal. |
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