BRINSMADE v. City of Biloxi
70 So. 3d 1159
Miss. Ct. App.2011Background
- City of Biloxi vacated an unimproved public easement in Edgewater Cove; Brinsmade, neighbor, challenged the vacation as unsafe and improper under statutes and ordinances.
- Edgewater Cove easement (123' by 50') lies between Edgewater Cove lots 8 and 9; it has never been developed or equipped with utilities.
- Planning Commission recommended vacation after public hearing; City Council adopted the recommendation and executed quitclaims to abutting owners.
- Brinsmade filed a declaratory judgment action in chancery; chancery court noted the easement was platted for public use and subject to statutory vacatur requirements.
- Circuit Court affirmed the vacation; Brinsmade appealed, raising four issues including statutory applicability, public-safety consideration, and failure to take judicial notice of prior judgments and ordinances.
- Court of Appeals affirmed, holding Brinsmade was not an interested or adversely affected party, and there was no reversible error in the procedures followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of 17-1-23(4) to municipal easement vacatur | Brinsmade argues 17-1-23(4) requires his written consent as an interested party. | City contends 17-1-23(4) governs platted subdivisions, not municipal easements, and Brinsmade is not an abutting owner. | Statute does not apply; Brinsmade is not an abutting or directly interested party. |
| Public-safety consideration in vacating the easement | Brinsmade claims vacating the easement harms public safety in evacuations. | City and circuit court found no substantial public-safety impact and Brinsmade failed to cite controlling authority. | No merit; no demonstrated public-safety deficiency shown. |
| Judicial notice of chancery declaratory judgment | Brinsmade asks circuit court to judicially notice chancery judgment under Rule 201. | Record on appeal did not include chancery pleadings; bill of exceptions controls; notice not proper. | Issue without merit; bill of exceptions governs; no proper judicial notice. |
| Consideration of municipal ordinances and rules | Brinsmade asserts City violated its ordinances by vacating without proper review. | Evidence outside the bill of exceptions may not be considered; courts cannot take judicial notice of municipal contracts/ordinances. | Lacks merit; not properly reviewable on appeal. |
Key Cases Cited
- Pruitt v. Zoning Bd. of City of Laurel, 5 So. 3d 464 (Miss. Ct. App. 2008) (record on appeal; bill of exceptions controls)
- Stewart v. City of Pascagoula, 206 So. 2d 325 (Miss. 1968) (no judicial notice of ordinances absent proper procedure)
- City of Jackson v. Welch, 101 So. 361 (Miss. 1924) (abutting and special-damages doctrine for street closures)
- Robinson v. Lincoln County Bd. of Supervisors, 973 So. 2d 288 (Miss. Ct. App. 2008) (standard of review; substantial evidence; arbitrariness)
- Mayor & Bd. of Aldermen v. Hudson, 774 So. 2d 448 (Miss. Ct. App. 2000) (burden on challenger; arbitrariness and authority standards)