The Mississippi Attorney General was asked whether a county may require a landowner to fence in livestock from public roads. The Attorney General responded that no such authority exists, but that a county may enact criminal ordinances imposing fines on landowners who do not fence their livestock off public roads.
Mr. James D. Shannon
Post Office Drawer 869
Hazlehurst, Mississippi 39083-0869
Dear Mr. Shannon:
Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and reply. Your entire letter is attached for ease of reference. Your letter poses two questions which we will state and answer in order.
Does the county have any authority to require the landowner to fence the area or to fence the area on the county right-of-way?
Miss. Code Ann. Sec. 69-13-205 states:
The respective boards of supervisors of the several counties of the state, in their discretion, are authorized and directed to erect, construct and maintain suitable fences and cattlegaps along the right of ways of United States Highways and state designated highways to prevent livestock from running at large as provided hereinafter. However, nothing in this article shall apply in any county coming under the state stock law.
The board of supervisors in any county having voted to come within the provisions of the statewide stock law, may maintain any fence or fences constructed under the authority of this article from any funds not public funds, donated by any person, firm or corporation for said purposes and further, may receive and accept funds from the Mississippi State Highway Commission for the relocation of said fence or fences required by said commission. In its discretion and in the alternative, said board may authorize any person, firm or corporation to maintain said fence or fences.
Miss Code Ann. Section 69-13-1 states:
Any person or persons owning or having under control any livestock such as cattle, horses, mules, jacks, jennets, sheep, goats and hogs, shall not permit such livestock to run at large upon the open or unfenced lands of another person, except as herein expressly provided, but shall keep such livestock confined in a safe inclosure or upon lands belonging to such person.
Although, we can find no statute which authorizes the county to require that a landowner fence his land, the county may enact police ordinances, including fines, which prohibit the roaming at-large of animals, including livestock, on public ways. Your second question asks:
What decision, if any, does the Board of Supervisors have to authorize the removal of the cattle gaps?
In response to your question, Miss. Code Ann. Sec. 65-7-7, which deals with obstructions on public roads and highways, provides that:
[N]o cattle gap placed on a county road, subject to overflow by the Mississippi River and not protected by levees, shall be considered an obstruction in the public road if such cattle gap is installed with the permission of the board of supervisors and the person installing same also provides a gate adjacent to the road for the passage of stock.
We also direct your attention to Miss. Code Ann. Sec.19-3-41 which states in part:
"The boards of supervisors shall have within their respective counties full jurisdiction over roads, ferries and bridges, except as otherwise provided by Section 170 of the Constitution..."
It is our opinion that a cattle gap is not an obstruction per se to a public road. Whether to allow or remove cattle gaps is within the sound discretion of the Board of Supervisors in pursuant to its constitutional and statutory authority over county roads..
By: Beverly A. Bolton
Special Assistant Attorney General
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