author: RANDOLPH, Presiding Justice, WALLER, Chief Justice,

text:
    Kenyatta Donta CHEEKS, v. AUTOZONE, INC., AutoZone Mississippi, Inc., AutoZone Stores, Inc. and AutoZone Mississippi Properties, Inc.
    No. 2013-CA-00401-SCT.
    Supreme Court of Mississippi.
    Sept. 25, 2014.
    Rehearing Denied Jan. 29, 2015.

      Joe N. Tatum, attorney for appellant.
    Keith D. Obert, William F. Brown, Madison, attorneys for appellees.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Kenyatta Cheeks was entering an AutoZone store when he was struck by a vehicle driven by Jason Johnson. The jury returned a verdict for Cheeks in the amount of $2,580,000, finding that Auto-Zone was forty-five percent at fault and Johnson was fifty-five percent at fault. The trial' court entered judgment in the sum of $1,161,000, with interest at the rate of five percent per annum from the date of judgment until the amount is paid in full. Later, the trial court granted AutoZone’s motion for judgment notwithstanding the verdict (JNOV). Cheeks appeals. We reverse the JNOV and remand'the case to the Hinds County Circuit Court for entry of judgment consistent with this opinion.

FACTUAL BACKGROUND

¶ 2. On Saturday evening, May 1, 2010, Cheeks and Cleveland Dortch drove to an AutoZone store located at 1401 Ellis Avenue, Jackson, Mississippi, to purchase auto parts. Cheeks parked at a nonstorefront side of the store, where there was no raised sidewalk or protective bollards.

¶ 8. The store provides parking facing two sides of the building. The store has an angled glass entranceway connecting the storefront with a masonry wall. The east, mostly glass wall served as the storefront. Vehicles parking on the north side primarily faced a solid wall with no glass. The storefront wall had bollards in a raised sidewalk that were erected in conjunction with the original construction of the store. No bollards protected the en-tranceway connected to the north wall.

¶4. As Cheeks opened an entrance door, he heard a warning. Cheeks turned to see a car “feet away,” bearing down on him. Before Cheeks could make it behind a bollard, he was struck by a car driven by Jason Johnson. Cheeks sustained significant injuries.

¶ 5. Cheeks filed suit against Auto-Zone and Johnson. During discovery, AutoZone identified the bollards as a “safety measure” in response to an interrogatory, which was read to the jury. The interrogatory is as follows:

INTERROGATORY NO. 14: Identify and describe all safety measures taken and equipment used by you on May 1, 2010 for the protection of your patrons and invitees of the subject AutoZone store located at 1419 Ellis Avenue, Jackson, Mississippi for the risk of being struck by a motor vehicle, and for each piece of major equipment, state whether it was operative the date of May 1, 2010.

The pertinent part of the answer reads as follows:

RESPONSE: ... all safety measure (bollards, elevated walkway and/or tire stops or curb stops) designed to protect pedestrians on the raised walkway immediately adjacent to the building of the subject AutoZone store located at 1419 Ellis Avenue, Jackson, Mississippi, from parking vehicles, were in place and in use on May 1, 2010, and in plain, open and obvious view....

¶ 6. On the morning of the trial, the parties agreed to dismiss Jason Johnson from the lawsuit with prejudice. Cheeks testified that, on May 1, 2010, he had worked on two or three cars at his shop. Later, Dortch came by to visit. The two went to Harbor Freight Tools (“Harbor”) to pick up a car jack. After leaving Harbor, Cheeks decided to stop at AutoZone to purchase parts for autos to be worked on Monday. Cheeks pulled into the Auto-Zone and parked, facing the wall on the north side. Cheeks testified that it was “kind of drizzling!,] raining” as they pulled into AutoZone. Cheeks was familiar with the layout of the store, as he had frequented it many times. He was aware that bollards protected the storefront, but not the other sides. Cheeks testified that “I figured that AutoZone had put enough bollards in place to stop a car from getting onto the sidewalk.” As Cheeks walked up the handicap ramp at the northeastern store entrance, he heard Dortch yell “Shorty, watch out.” When Cheeks turned around, he saw a vehicle bearing down on him. Cheeks testified he had less than two seconds to react. A store video captured Cheeks turning around and attempting to seek refuge behind a bollard on the eastern side. No bollard protected the northeastern entryway. He testified, “my instinct kicked in to run back towards the front of the store towards the orange pole [bollard].” Cheeks testified, “I relied on the pole.”

¶ 7. AutoZone employees (Mack Dillard, Ashley Burton, Eric White, and Millard O’Banner) testified that they occasionally allowed customers to drive up the handicap ramp leading to the entranceway, to get under a canopy extending above the northeastern entrance. Eric White was one of the three employees on duty at the time of the accident. He testified that he and another employee were outside changing wiper blades on separate vehicles and on opposite sides of the store at the time of the accident. White testified that Johnson never spoke to him about wiper blades or pulling under the canopy. O’Banner, the manager on duty at the time, testified that he was not asked to let anyone under the canopy that evening.

¶ 8. James Johnson, the driver and former defendant, and Louis Morris testified by deposition. Johnson testified that he drove from a nearby parking lot to Auto-Zone to have new windshield wiper blades installed onto his vehicle. He entered the AutoZone lot, where an AutoZone employee instructed him to drive his vehicle underneath the canopy that extended over the entrance. He was pulling his vehicle underneath the canopy when he suffered a seizure. He lost control of his vehicle and crashed into the entranceway. Following the accident and arrival of emergency personnel, Johnson regained consciousness. Johnson was arrested for driving with a suspended license.

¶ 9. Louis Morris witnessed the accident. Morris testified that he saw Johnson’s car leave an adjoining parking lot and enter the AutoZone parking area. Morris stated that Johnson’s car slightly paused as it entered the AutoZone parking area and then accelerated into the Auto-Zone entranceway. Morris saw no Auto-Zone employees standing outside the building.

¶ 10. In addition to presenting damage experts, Cheeks offered Dr. David Clement as a liability expert. Clement opined that when people see bollards, they interpret them as a safety feature. He also testified that Cheeks would not have had sufficient time to make any other decision than what he did. Clement read Auto-Zone’s response to Interrogatory No. 14 to the jury.

¶ 11. Cheeks also presented David Dau-bert as an expert in the field of traffic and transportation engineering. Daubert testified that, once you place bollards in one area, you have to do it in all areas of the entranceway, because persons have an expectation of safety when they see bollards. Daubert further opined that AutoZone breached pedestrian safety principles by having a ramp that leads into a gap wide enough for cars to drive through. He opined that the car was traveling ten-to-eleven miles per hour when it struck Cheeks. He concluded that a bollard would have stopped the car, preventing it from reaching Cheeks. He also offered testimony and photographs that other Au-toZones', both local and out of state, have bollards protecting the entire entrance-way.

¶ 12. George Callow, an AutoZone architect, offered the following testimony. Bollards were not designed to protect pedestrians. Instead, the bollards were installed in response to rampant “crash and grab” thefts. A secondary purpose of the bollards was to prevent cars from accidentally bumping into the glass, which caused about $2,000 a week in damage to AutoZone stores. He was unaware of any pedestrian ever having been struck or killed on any AutoZone sidewalk. The AutoZone store was not in violation of any federal, state, or municipal laws or regulations. He acknowledged that there was a “straight unimpeded shot through through the [entrance] gap” from the parking area.

¶ 13. After the court denied AutoZone’s motion for directed verdict, AutoZone called Anthony Beal, a passenger in Johnson’s car. Beal and Johnson were riding around when Johnson received a call that somebody was selling CDs and DVDs in Johnson’s “spot” at a nearby Sav-A-Lot. Johnson decided to confront the individual. Johnson drove into the Sav-A-Lot parking area and had an argument with the unidentified CD seller. After the argument, Johnson angrily sped off in the direction of the AutoZone. Beal was concerned at how fast Johnson was driving and turned to look at him. When Beal looked at Johnson, he saw Johnson leaning sideways with his head rolling back, “like he was in seizure mode.” Beal tried to grab the wheel. He was thrown forward in his seat, hitting his head on the roof of the car, when the car struck a curb separating the Sav-A-Lot and AutoZone parking areas. He blacked out. When Beal awoke, he was inside the AutoZone store. Johnson never mentioned anything about wiper blades or needing to make a purchase at AutoZone. He never observed Johnson speaking to an AutoZone employee.

¶ 14. Rodney Daniels, Jackson Police Department, was the responding officer. Daniels testified that Johnson informed him that “his accelerator to his vehicle had gotten stuck,” and that was the cause of the accident, and that Johnson never mentioned wiper blades, AutoZone employees, or seizures.

¶ 15. AutoZone also presented testimony from Christopher Grubbs, an expert in civil engineering and parking-lot design, and Jeffrey Gross, an expert in architecture, building codes, and applications of the Americans with Disabilities Act. They testified that the store was reasonably designed and in substantial compliance with all codes. Gross further testified that placing a bollard in the entrance gap, while technically still complying with the ADA, would obstruct the “funneling” of handicapped people.

¶ 16. The trial concluded with a jury-verdict in favor of Cheeks for $2,580,000, apportioned with fifty-five percent of liability to Jason Johnson and forty-five percent to AutoZone. A judgment was entered against AutoZone in the amount of $1,161,000, with interest at the rate of five percent per annum from the date of judgment until the amount is paid in full. Au-toZone timely filed its motion for JNOV. A hearing was held. Subsequently, the trial court entered an order granting Auto-Zone’s JNOV on the grounds that under Mississippi law, business owners do not owe a duty to erect protective, impregnable barriers around their businesses, and that, even if AutoZone had assumed any duty due to the presence of bollards on the east side of the store, its duty was limited to protecting customers on that side of the store. The trial judge also found that the overwhelming weight of credible evidence contradicted Johnson’s testimony. Aggrieved by the grant of AutoZone’s JNOV, Cheeks appeals.

ISSUE

¶ 17. Cheeks raises the following issue: whether the trial court erred in granting a judgment notwithstanding the verdict.

ANALYSIS

¶ 18. The standard of review for a trial court’s grant of a motion for JNOV is de novo. Bus. Commc’ns, Inc. v. Banks, 90 So.3d 1221, 1224 (Miss.2012) (citing Watts v. Radiator Specialty Co., 990 So.2d 143, 150 (Miss.2008)). “A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” United Servs. Auto. Ass’n (USSA) v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010) (citing Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (Miss.2008)). “We are required to view the evidence in the light most favorable to the nonmoving party.” Mollaghan v. Varnell, 105 So.3d 291, 300 (Miss.2012). “In essence, judgments as a matter of law present both the trial court and the appellate court with the same question — whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” White v. Stewman, 932 So.2d 27, 32 (Miss.2006). “Stated differently, judgments as a matter of law go to the very heart of a litigant’s ease and test the legal sufficiency of that litigant’s case.” Id.

¶ 19. “The analysis of a premises liability case proceeds according to three steps.” Massey v. Tingle, 867 So.2d 235, 239 (Miss.2004) (citing Titus v. Williams, 844 So.2d 459, 467 (Miss.2003)). “First, it is necessary to determine whether the injured person is an invitee, licensee, or trespasser.” Massey, 867 So.2d at 239. “Next, the duty owed to the injured person must be determined.” Id. “The final step is the determination of whether the landowner breached that duty.” Id. (citing Titus, 844 So.2d at 467).

¶ 20. “A person is considered an invitee if he enters the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Thomas v. Columbia Group, LLC, 969 So.2d 849, 852 (Miss. 2007) (citing Holliday v. Pizza Inn, Inc., 659 So.2d 860, 865 (Miss.1995)). Cheeks meets the definition of an invitee. “The owner of the premises ‘is not an insurer of the invitee’s safety, but does owe to an invitee the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.’ ” Leffler v. Sharp, 891 So.2d 152, 157 (Miss.2004) (quoting Massey, 867 So.2d at 239).

¶ 21. This Court has emphasized that “the foreseeability of the injury sustained provided the touchstone for liability.” Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994) (citing Kelly v. Retzer & Retzer, Inc., 417 So.2d 556, 560 (Miss.1982), and Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)). “Whether something is or is not within the realm of reasonable foreseeability depends upon the facts of the case and the duty which the plaintiff asserts for the particular defendant.” O’Cain v. Harvey Freeman & Sons, Inc. of Mississippi, 603 So.2d 824, 830 (Miss.1991). “An independent intervening cause is one that could not have been reasonably foreseen by the defendant while exercising due care.” Id. (quoting Kelly v. Retzer & Retzer, Inc., 417 So.2d 556, 562 (Miss.1982)). As for the actions of third parties, we have stated:

in determining the existence of a landowner’s duty to protect invitees from the wrongful conduct of third persons, foreseeability is measured by all of the circumstances including the nature, condition and location of the defendant’s premises and defendant’s prior experience, bearing in mind that what is required to be foreseeable is the general nature of the event or harm, not its precise manner or occurrence.

Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1190 (Miss. 1994) (citation omitted) (emphasis added).

¶ 22. Mississippi unequivocally holds that “no duty [is] owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from driving through the store’s plate glass window.” Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708, 709 (Miss.1987). In Carpenter, the plaintiff was shopping in a Stop-N-Go convenience store when an automobile drove through the front plate-glass window of the store, injuring the plaintiff. Id. The automobile was being driven by a thirteen-year-old attempting to steal the car from the store’s parking lot. Id. The defendant store admitted in interrogatories that another car previously had caused similar damage. Id. The trial court granted Stop-N-Go’s motion for summary judgment. We upheld the summary judgment and quoted favorably the following reasoning:

[I]t cannot be contended with any degree of reason or logic that the owner of a store, ... by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store.... If as a matter of law such occurrences are ... to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter.

Id. (quoting Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla.Dist.Ct.App.1961)). In a specially concurring opinion, four justices doubted the wisdom “of declaring as a matter of law that the owner of a public business is never under any duty,” due to the unique construction and location of some stores. Carpenter, 512 So.2d at 710 (Hawkins, P.J., specially concurring).

¶ 23. Cheeks argues that the case sub judice is distinctly different from Carpenter for two reasons. First, Cheeks argues that AutoZone’s practice of allowing vehicles to drive onto the sidewalk and under the canopy creates a reasonable foreseeability that an injury to a customer entering or exiting the store entranceway could occur. Second, Cheeks argues that Auto-Zone sought to fulfill its duty to protect invitees at the entranceway by the measures described in response to interrogatory 14 (¶ 5). Once the store undertook measures to provide protection of its patrons, it had to do so in a nonnegligent manner. Cheeks asserts that, when a person voluntarily assumes a duty to protect another person, such duty must be carried out with ordinary or reasonable care. Palmer v. Volkswagen, 905 So.2d 564, 602 (Miss.Ct.App.2003) (overruled on other grounds); Century 21 Deep South Prop. v. Corson, 612 So.2d 359, 368-69 (Miss.1992).

¶ 24. Viewing the evidence in the light most favorable to Cheeks, the nonmovant, the jury had credible evidence to determine that an injury was reasonably foreseeable. AutoZone’s architect testified that AutoZone was spending $2,000 a week repairing broken glass from cars bumping into unprotected storefronts. He further testified that the design of this store left a “straight unimpeded shot [for a car to drive] through the [entrance] gap,” the very spot where Cheeks was struck. “In this situation, there is at least enough evidence of foreseeability to establish a question of material fact for the jury to determine.” See Thomas v. Columbia Group, LLC, 969 So.2d 849, 855 (Miss.2007). “A defendant who creates a hazardous condition has a duty to make safe or warn of that condition[.]” Patterson v. T.L. Wallace Constr., Inc., 133 So.3d 325, 331 (Miss. 2013). “[W]hether a party assumed a duty must be determined by the individual facts of the case and the existence or absence of detrimental reliance on that assumed duty.” Wagner v. Mattiace Co., 938 So.2d 879, 886 (Miss.Ct.App.2006). In short, viewing the facts in the light most favorable to Cheeks, the jury had sufficient evidence to find that it was reasonably foreseeable for an injury to occur and that AutoZone had breached the duty it assumed.

¶ 25. While AutoZone’s architect stated that the purposes for the bollards was to prevent crash-and-grab thefts and property damage, its interrogatory answer identified the bollards as a “safety measure” designed to protect pedestrians. Cheeks testified that he relied on the bollards for safety and felt a sense of security based on their presence. Cheeks testified that, when he saw the car, he instinctively tried to run behind a bollard, because he assumed they were there for protection. Daubert testified that AutoZone breached pedestrian safety principles by not placing a bollard in the gap at the entranceway. Viewing this evidence in the light most favorable to Cheeks, a reasonable jury could find that Cheeks and similarly situated patrons would rely upon the bollards for protection, and that AutoZone had breached the duty it had assumed by not fully protecting the entranceway, an area through which every customer was required to pass.

¶ 26. Our caselaw is quite clear. We reaffirm the holding of Carpenter that premises owners do not have a duty to erect protective barriers to insure the safety patrons inside the store. We also reaffirm that a premises owner has no duty to protect against runaway vehicles where such incidents would be unforeseeable. But, as the special concurrence in Carpenter ' recognized, certain factual circumstances give rise to the possibility for a duty to arise. The case sub judice is one of those cases. The jury found that Cheeks’s injury was proximately caused or contributed to by AutoZone creating an unsafe condition. The trial court erred in granting AutoZone’s JNOV and finding that AutoZone owed no duty to Cheeks.

CONCLUSION

¶ 27. We reverse the trial court’s grant of JNOV in favor of AutoZone and remand the case to the trial court for entry of judgment consistent with this opinion and with the judgment against AutoZone as earlier entered by the trial court.

¶ 28. REVERSED AND REMANDED.

LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND PIERCE, J. COLEMAN, J„ NOT PARTICIPATING.

WALLER, Chief Justice,

dissenting:

¶ 29. I believe that the trial court correctly granted AutoZone’s motion for judgment notwithstanding the verdict (JNOV). Accordingly, I respectfully dissent.

¶ 30. As the trial court correctly recognized, AutoZone owed no duty to its invitees to surround its store with an impregnable protective barrier. See Carpenter v. Stop-N-Go Markets of Georgia) Inc., 512 So.2d 708, 709 (Miss.1987); Heard v. Intervest Corp., 856 So.2d 359, 362 (Miss.Ct. App.2003). Rather, AutoZone owed a duty to its invitees to keep its premises reasonably safe, and when not reasonably safe, to warn them of any hidden dangers of which it knew or reasonably should have known. Corley v. Evans, 835 So.2d 30, 38-39 (Miss. 2003) (citing Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992)). Thus, the critical question is whether Cheeks’s injury was foreseeable to Auto-Zone. “[F]or a person to be liable for another person’s injury, the cause of an injury must be of such a character and done in such a situation that the actor should have reasonably anticipated some injury as a probable result.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1144 (Miss.2004) (citing Mauney v. Gulf Ref. Co., 193 Miss. 421, 9 So.2d 780, 781 (1942)). “[T]he actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities[,]” but must “anticipate only such a result as is a reasonably foreseeable consequence of his act.” Mauney, 9 So.2d at 781; Cole v. Delchamps, Inc., 246 Miss. 846, 854, 152 So.2d 911, 914 (1963) (citations omitted). I would find as a matter of law that Cheeks’s injury was not reasonably foreseeable to AutoZone.

¶ 31. The evidence indicates that Auto-Zone had a policy of allowing customers to drive onto the sidewalk and under the canopy of its store during inclement weather to work on their vehicles. Thus, AutoZone had a duty to act reasonably for the protection of its customers during the furtherance of this policy, and it is at least arguable that AutoZone could foresee that an injury to a customer could occur as a probable result of the negligent performance of this policy. In my opinion, however, the mere existence of this policy has no effect on the foreseeability of Cheeks’s injury, as the overwhelming weight of the evidence indicates that Cheeks was struck by a runaway vehicle, not by another Auto-Zone customer. I agree with the trial court that there is no credible evidence supporting Johnson’s testimony that he was driving under the canopy of the store to have his wiper blades changed by an AutoZone employee when the injury occurred. On the contrary, substantial evidence supports the trial court’s finding that Johnson lost control of his vehicle, either as the result of a seizure or some mechanical failure, drove through Auto-Zone’s parking lot, and collided with Cheeks near the entrance of AutoZone’s store. To create a jury question, the evidence opposing a motion for directed verdict or JNOV must be “of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment could differ as to the verdict.” Collins v. Ringwald, 502 So.2d 677, 679 (Miss.1987) (citations omitted). I do not believe Johnson’s uncorroborated and contradicted testimony satisfies this standard.

¶ 32. The majority view regarding the foreseeability of such an injury was established in Schatz v. 7-Eleven, Inc., 128 So.2d 901, 904 (Fla.Dist.Ct.App.1961), in which the court reasoned:

We are not unmindful of the obvious fact that at times operators lose control over their vehicles either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary course of events. When they happen, the consequences resulting therefrom are matters of chance and speculation. If as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are therefore not foreseeable in contemplation of the law.

(Emphasis added.) This reasoning, which forms the basis for this Court’s holding in Carpenter, shows that Cheeks’s injury does not fall within the realm of legally foreseeable harms that AutoZone should have anticipated and guarded against in the exercise of reasonable care. I do not believe that AutoZone’s policy of allowing customers to drive under the canopy of its store during inclement weather makes this case sufficiently distinguishable from Carpenter and Heard, as it has no relation to the way in which Cheeks’s injury occurred. Thus, I would find that Cheeks’s injury was unforeseeable as a matter of law under Carpenter.

¶ 38. Cheeks also argues that AutoZone assumed a duty to erect a barrier around its store by choosing to place bollards on the east side of its premises. I disagree. This Court has held that liability arising out of a voluntarily assumed duty must be limited to the extent of the undertaking. See Rein, 865 So.2d at 1146-47; see also Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1089 (Pa.Super.Ct.1997) (holding that a premises owner’s voluntary act of salting one portion of its parking lot was not an undertaking to salt it all). In this case, by electing to erect bollards on the east side of its premises, AutoZone arguably assumed a duty to act reasonably in the construction and maintenance of those bollards, whether to protect customers on the east side of the premises from parking vehicles, or to prevent “crash and grab” thefts. But this duty does not automatically extend to the rest of the premises, where AutoZone never undertook to install any bollards. Moreover, although Cheeks claims he sought safety behind one of the bollards in front of AutoZone’s store, he does not allege that his injury was the result of a flaw in the construction or maintenance of the bollards. I would find that Cheeks’s negligence claim cannot be based on AutoZone’s assumption of a duty to erect a barrier around its premises, because that duty clearly was limited to the facade of the building, on the east side of the premises.

¶ 34. Therefore, I respectfully dissent.

DICKINSON, P.J., AND PIERCE, J., JOIN THIS OPINION.

      . Cheeks owned his own auto-repair business.

      . A bollard is a thick post.

      . AutoZone's bollards were concrete posts, painted orange.

      . As discussed infra, AutoZone offered conflicting testimony on the purpose of the bollards. In its interrogatory response, Auto-Zone stated that the bollards were a safety measure to protect pedestrians. At trial, Au-toZone maintained that the bollards were installed to protect the storefront and merchandise, not pedestrians.

      .Cheeks actually filed suit against four Auto-Zone entities: AutoZone, Inc.; AutoZone Mississippi, Inc.; AutoZone Stores, Inc.; and Au-toZone Mississippi Properties, Inc.

      . This practice was used only during heavy rain. Customers must first have purchased the product from inside the store, and the employees must have received permission from the manager to allow the customers to pull under the canopy.

      . Today's opinion does not rely upon the testimony of Johnson, which was dubious at best. But rather, AutoZone sought to respond to its duty to keep its premises reasonably safe, as can be seen by the measures set forth in response to interrogatory 14, supra ¶ 5. Plaintiff’s experts offered testimony that Auto-Zone breached its duty (see infra ¶ 10 and ¶ 11) by failing to protect the entire entrance-way, and not just the east side of the building, as posited by the dissent (Dis.Op.1l 33).

      . AutoZone’s accident reconstruction expert, Richard Baratta, testified that the car was traveling ten-to-fifteen miles per hour.

      . Stores located in Flowood, Byram, Vicksburg, and on Woodrow Wilson in Jackson, inter alia, verify that those stores have bollards that fully protect the entranceway.

      .A "crash and grab” theft occurs when a truck is backed into the store through the glass windows. Once the truck has breached the store, its occupants jump out and grab merchandise. The burglars then drive off before the police arrive.


source: Caselaw Access Project

author: KITCHENS, Justice, LAMAR, Justice,

license: Public Domain

text:
    Ralph H. McBROOM and Geraldine E. McBroom v. JACKSON COUNTY, Mississippi.
    No. 2012-CA-01695-SCT.
    Supreme Court of Mississippi.
    Oct. 2, 2014.
    Rehearing Denied Jan. 29, 2015.

      Robert E. O’Dell, Pascagoula, attorney for appellants.
    Gary S. Evans, Pascagoula, Angela Broun Blackwell, attorneys for appellee.
    BEFORE DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In 1972, the Board of Supervisors of Jackson County, Mississippi, approved the final plat for Spring Lake Subdivision. At that time, the sole means of vehicular access to the subdivision was Spring Lake Drive East, which crossed Spring Lake Dam. The McBrooms, who own Spring Lake, three subdivision lots on Spring Lake, and the dam forming the lake and providing access to the subdivision, contend that Jackson County is obligated to maintain the dilapidating roadway by virtue of the McBrooms’ dedication of the roadway to public use and Jackson County’s acceptance of their dedication. The Chancery Court of Jackson County held that the McBrooms were entitled to no relief. Finding that the Spring Lake Dam and the roadway over it were dedicated to public use and accepted by Jackson County under the common law of this State, as evidenced by more than thirty years of continuous use by the public, we reverse and render judgment for the McBrooms.

FACTS AND PROCEEDINGS BELOW

¶2. Ralph McBroom purchased two lots on the east side of Spring Lake in the Spring Lake Subdivision in 1972 and a third lot in 1989. He built a home on the lots in 1986 and moved in with his wife Geraldine in 1987. The residence is situated on the lake to the immediate left of Spring Lake Drive East, a paved roadway which crosses the entire length of the Spring Lake Dam traveling east. It was undisputed at trial that, for thirty-four years, from 1972 until an alternate means of access to the Spring Lake Subdivision was constructed by Jackson County in 2006, the roadway over Spring Lake Dam provided the only means of ingress and egress to and from the subdivision: “the garbage man, the mailman, everyone, UPS man. They all-well, matter of fact, he still comes over that thing. But no one had any problems with the road,” as Ralph McBroom testified.

¶ 3. Nevertheless, at the time the subdivision was developed in 1972, the Jackson County Board of Supervisors approved the final subdivision plat for the Spring Lake Subdivision but added to it the following unilateral statement: “subject to the condition that the developer perpetually maintain the entrance route into said subdivision along the dam and subject to the express condition that Jackson County does not accept said entrance route over the dam for maintenance.” In 1980, Lake-O-Pines, Inc., conveyed, by warranty deed, property including Spring Lake and Spring Lake Dam to Smith Homes, Inc. The warranty deed contained the following stipulation:

It is expressly understood and agreed that the Grantor herein has the responsibility of repairing the dam for Spring Lake and to have such repair completed by August 1, 1980. Upon acceptance of such repair work by the Board of Water Commissioners of the State of Mississippi, the grantee shall assume the responsibility of maintenance of said dam at Spring Lake.

Notably, this instrument is silent with respect to the paved roadway atop the dam. After multiple conveyances of the property since 1980, Merton Larson purchased Spring Lake, including Spring Lake Dam, in 2003 by quitclaim deed. In 2005, Larson conveyed the lake and dam to his company, Project Systems Investment Corporation.

¶ 4. In 2006, the Spring Lake Dam and roadway had deteriorated to such a degree that the local school buses, which historically had utilized the dam for ingress and egress to and from the Spring Lake Subdivision, were prohibited by the County School Board from crossing the dam. That year, the county opened an alternate access into the subdivision, namely Lee Taylor Road. On March 13, 2006, the McBrooms filed a complaint in the Chancery Court of Jackson County against Jackson County, Jackson County Planning Commission, Mississippi Department of Environmental Quality, Merton Larson, and Project Systems Investment Corporation.

¶ 5. According to the McBrooms’ complaint, the Mississippi Department of Environmental Quality (MDEQ) had placed “Larson on notice that the dam is [a] ‘high hazard dam’ pursuant to the laws of the State of Mississippi and that the same must be either repaired, or breeched [sic], and the lake drained.” The McBrooms alleged that “Jackson County, acting through its Board of Supervisors, now refuses to continue its traditional maintenance of the road across the dam based upon the belief that the road across the dam is a private road.” The McBrooms sought an injunction against Jackson County to require the Jackson County Board of Supervisors “to take immediate steps to restore the dam and to restore the road that traverses the top of the dam to a safe and reasonable condition for ingress and egress of the Plaintiffs and property owners in Spring Lake Village [Subdivision] ...” or to require that Larson effect those repairs. The complaint further sought an injunction to prevent MDEQ and Larson from breaching the dam.

¶ 6. MDEQ filed a Motion to Dismiss, arguing that the McBrooms had failed to exhaust administrative remedies. The Jackson County Planning Commission likewise filed a Motion to Dismiss, asserting that, having “no separate legal existence apart from Jackson County,” it was “not a legal entity capable of suing and being sued” and therefore not a proper party. In an order dated May 15, 2006, the chancellor granted the Jackson County Planning Commission’s Motion to Dismiss and, because the McBrooms agreed to pursue administrative remedies, continued MDEQ’s Motion to Dismiss. Those administrative remedies involved the McBrooms’ obtaining a dam-breach analysis and a survey and field verification report. The results of those reports led to a reclassification by MDEQ of Spring Lake Dam “as a low-hazard dam.” According to the letter the McBrooms received from MDEQ, “[ojwners of low-hazard dams are not required to develop and maintain an Emergency Action Plan (EAP) nor are they required to have their dam inspected by an engineer.”

¶ 7. The chancellor then dismissed Merton Larson and Project Systems Investment Corporation with prejudice because a settlement had been achieved. The record reflects that on May 11, 2006, the McBrooms had purchased by quitclaim deed Spring Lake (and the accompanying dam and roadway) from Project Systems Investment Corporation.

¶ 8. Following further investigations and the filing of two amended complaints by the McBrooms, a trial was held in August 2012. The McBrooms’ Second Amended Complaint, against Jackson County only, sought a declaratory judgment that the Spring Lake Dam and the roadway over it had been dedicated to public use and accepted by Jackson County and that the Jackson County Board of Supervisors’ 1972 statement, in the final plat approval, that the developer maintain the dam, was an act ultra vires, which is to say, beyond its legal authority. The McBrooms sought, in the alternative, recognition that Jackson County either was responsible for maintaining the dam and roadway by virtue of a public easement or by adverse possession. Additionally, they sought compensatory damages and attorney fees. Both parties submitted Proposed Findings of Fact and Conclusions of Law. On September 18, 2012, the chancellor issued her “Findings of Fact, Conclusions of Law, Ruling and Judgment of the Court” holding that the McBrooms were not entitled to any of the relief sought.

¶ 9. Aggrieved, the McBrooms timely appealed the chancellor’s judgment to this Court on October 4, 2012. They raised the following issues:

1. Whether the trial court erred in not finding that there was an actual, or “statutory,” dedication and acceptance by Jackson County of the roadway over Spring Lake dam, including whether Jackson County’s purported exclusion of maintenance responsibility for Spring Lake Drive East over Spring Lake dam by resolution was unlawful.
2. 'Whether the trial court erred in not finding that there was an implied, or “common law,” dedication and acceptance to Jackson County of the disputed roadway, so as to create a public easement.
3. Whether the trial court erred in not finding the existence of an easement or right-of-way by prescription in favor of public ownership of the disputed roadway by Jackson County.
4. Whether the trial court erred in not awarding injunctive relief ordering Jackson County to provide maintenance to the roadway and substrate dam.
5. Whether the trial court erred in not awarding the plaintiffs attorney fees and costs of court.

Finding the McBrooms’ other contentions to be without merit, we address only their first two assignments of error.

DISCUSSION

Whether the chancellor erroneously concluded that Jackson County was not obligated to maintain Spring Lake Drive East over Spring Lake Dam by virtue of statutory and common law dedication and acceptance.

¶ 10. The McBrooms claim that continuous public use of Spring Lake Drive East, the sole means of vehicular access to the Spring Lake Subdivision from 1972 through 2006, evidences intent of the subdivision developer at the time the plat was approved to dedicate the access roadway to public use, notwithstanding Jackson County’s attempted refusal in the final plat to accept the roadway. The McBrooms further argue that Jackson County’s acceptance of the Spring Lake Subdivision final plat with the directive that the “developer perpetually maintain the entrance route into said subdivision along the dam” constituted an ultra vires action. Jackson County counters that the roadway over Spring Lake Dam was not included in the legal description of the plat and that, while the county specifically did accept the roads included within the plat’s legal description of the subdivision, the roadway over Spring Lake Dam was not included among those roads accepted. The chancellor found that, at the time of trial in 2012, the McBrooms were the fee simple owners of the Spring Lake Dam and roadway and that, in 1972, Jackson County had not acted ultra vires by conditioning acceptance of the final plat on the developer’s maintenance of the dam and roadway.

¶11. The findings of fact of a chancellor “will not be disturbed unless manifestly wrong or clearly erroneous.” Lowrey v. Lowrey, 25 So.3d 274, 285 (Miss. 2009) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625 (Miss.2002) (quoting Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999))). However, “the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Lowrey, 25 So.3d at 285 (quoting Owen v. Owen, 928 So.2d 156, 160 (Miss.2006)). “A chancellor’s conclusions of law are reviewed de novo.” Lowrey, 25 So.3d at 285 (citing Chesney v. Chesney, 910 So.2d 1057, 1060 (Miss.2005)).

¶ 12. This Court has defined “dedication” as “the setting aside of land for public use.” Nettleton Church of Christ v. Conwill, 707 So.2d 1075, 1076 (Miss.1997). Private land may be dedicated to public use in two ways, pursuant to statute and under the common law. Conwill, 707 So.2d at 1076 (citing Dedication 23 Am.Jur.2d § 3). According to this Court, “[t]wo distinctions separate the different types of dedication.” Id. “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.” Id.

A. Statutory Dedication

If 13. Mississippi Code Section 21-19-63 (Rev. 2007) sets forth a mechanism by which land may be dedicated to public use by plat:

“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.... ”

(Emphasis added.) We agree with the McBrooms that the dam appears on the final plat map of the Spring Lake Subdivision accepted by the Jackson County Board of Supervisors in 1972. But we find that Section 21-19-63 applies by its plain language to municipalities, not to counties. As we previously have held, “[t]he courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching upon the power of the Legislature.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1208 (Miss.2002) (quoting Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 490 (1911)).

¶ 14. Nevertheless, the McBrooms maintain that Mississippi Code Section 17-1-23(3) (Rev. 2012) provides a counterpart to Section 23-19-62 applicable to counties. While we agree that the plain language of other subsections of Section 17-1-23 applies to counties, the McBrooms’ interpretation of Section 17-1-23(3) again ignores the plain language of the statute. In pertinent part, Section 17-1-23(3), which is virtually identical to Section 21-19-63, provides:

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....

(Emphasis added.) Subsections 1, 2, and 4 of Section 17-1-23 reference the “governing authority of each municipality or county.” (Emphasis added.) We cannot agree with the McBrooms that Section 17-1-23(3) applies to counties, notwithstanding the language of other subsections. See Miss.Code Ann. § 17-1-1(a) (Rev. 2012) (“ ‘Municipality’ means any incorporated city, town or village within the state.”); COR Developments, LLC v. College Hill Heights Homeowners, LLC, 973 So.2d 273, 287 (Miss.Ct.App.2008) (holding that Section 17-1-23(3) “does not govern in the present case because it applies only to municipalities, not counties.”)

¶ 15. Section 17-1-23(2) by its plain language applies to counties. It provides:

The board of supervisors of any county may order that no plat of a subdivision shall be recorded until it has been approved by the board of supervisors, and the board of supervisors shall have power to require the installation of utilities and laying out of streets in subdivisions or to accept performance bonds in lieu thereof....

The McBrooms argue that Section 17-1-23(2) is an enabling statute, providing a “legislative grant of authority to the board of supervisors” either to “(1) ‘require the installation of utilities and laying out of streets in subdivisions’ or, (2) ‘to accept performance bonds in lieu thereof.’ ” We find the McBrooms’ contentions to be without merit. Section 17-1-23(2) is, by its plain language, discretionary. First, “[a] basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So.3d 851, 854 (Miss.2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 115 (Miss.2003)). The statute gives discretion to the board of supervisors to withhold recordation of a plat of a subdivision until such time as the board approves it. Second, the statute states that the board “shall have power to require the installation of utilities and laying out of streets in subdivisions or to accept performance bonds in lieu thereof....” Miss. Code Ann. § 17-1-23(2) (emphasis added). We find that the language “shall have power to” does not mandate action by the county board of supervisors, but merely vests the board with the authority to act.

¶ 16. Section 900.1 of the Jackson County Subdivision Regulations from 1968, entitled “Performance Bond,” provides the following:

In those instances where the Planning Commission determines that it is not necessary or desirable that all required streets and other improvements be completed prior to approval of the Final Plat, a performance bond will be accepted in lieu of completion of the construction as set forth in Article V (Required Improvements)....

Equating “completion” with “acceptance,” the McBrooms argue in their reply brief, without citing any authority, that “[w]here there is, putatively, no acceptance of a street for maintenance by the County, a performance bond is required by the ordinance (as in accordance with the enabling statute) in order to secure future performance by the developer.” Thus, according to the McBrooms, Jackson County’s delegation of the obligation to maintain the Spring Lake Dam to the developer, in the absence of a performance bond securing future maintenance, constituted an ultra vires act by the county. We find the McBrooms’ argument to be unsupported.

¶ 17. The ordinance requires a performance bond in lieu of construction “[i]n those instances where the Planning Commission determines that it is not necessary or desirable that all required streets and other improvements be completed prior to approval of the Final Plat.” Jackson County, Miss., Subdivision Regulation 900.1 (1968). The scenario contemplated in Subdivision Regulation 900.1 remains wholly distinguishable from the facts before the Court in the instant case. Here, the McBrooms presented no evidence that a determination was made by the Planning Commission that a performance bond was required in lieu of completion of the roadway over the Spring Lake Dam prior to approval of. the final plat. The Jackson County Board of Supervisors conditioned the approval of the final plat on the continued maintenance of the dam and roadway by the developer of the Spring Lake subdivision. Thus, on the basis of dedication and acceptance under our statutes, we cannot say the chancellor erred in holding that the McBrooms were the fee simple owners of the Spring Lake Dam and the roadway over it. See Conwill, 707 So.2d at 1076 (“[I]n a statutory dedication the fee of the property is in the public.”)

¶ 18. For these reasons, the Mississippi statutes pertaining to dedication of private land to public use do not support the McBrooms’ position that Jackson County was obligated to maintain Spring Lake Dam and the roadway over it.

B. Common Law Dedication and Acceptance

¶ 19. The statutory analysis is not dispositive, however. The common law of dedication and acceptance, which “operates by way of an equitable estoppel,” also must be considered. Conwill, 707 So.2d at 1076. Instead of a creating a fee interest in the public, “a common law dedication usually creates a mere easement.” Id. We find that, while statutory dedication and acceptance are limited by plain statutory language to municipalities, the common law of dedication and acceptance can be applied more broadly to actions by counties. See Hearn v. Morrow, 272 So.2d 645 (Miss.1973); Armstrong v. Itawamba County, 195 Miss. 802,16 So.2d 752 (1944); Kinnare v. Gregory, 55 Miss. 612, 1878 WL 4511 (1878). According to this Court:

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. Natchez, 48 Miss. 423 (1873); Vick and Rappleye v. Mayor and Aldermen of Vicksburg, 1 How. 379 (Miss.1837).

Conwill, 707 So.2d at 1076.- This rule has roots in the early jurisprudence of this state:

The rule has obtained general sanction, that, if the owner of urban property has laid it off into lots intersected by streets and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public. Irwin v. Lewis, 9 How. (U.S.) 10 [13 L.Ed. 25 (1850)]; Rowan v. Portland, [47 Ky. 232] 8 B. Monroe, 232; Vicks v. Vicksburg, 1 How. 379.

Briel v. City of Natchez, 48 Miss. 423, 436, 1873 WL 4128 (1873). Even earlier than the 1873 Briel case, this Court stated that “when the owners of urban property have laid it out into lots with streets and avenues intersecting the same, and have sold lots with reference to -such plat, it is too late for them to resume a general and unlimited control over the property, thus dedicated to the public.” Vick et al. v. The Mayor and Aldermen of Vicksburg, 1 How. 379, 2 Miss. 379, 432 (1837).

¶ 20. As to dedication and acceptance of roadways, this Court has opined that the landowner:

... may grant to certain persons or to the public the easement of a highway over his land; not that the grant is technically by deed, but he may do those acts which unequivocally manifest an intention that the community shall have and enjoy a highway on his private property. When the public accepts his offer there has been consummated that which is of equal import with a contract or grant, and there has been accomplished what is expressed by the term “dedication.”
The acceptance may be shown in two ways: first, by the formal act of the proper authority competent to speak and act for the public, or it may be implied from circumstances such as user, etc. The People v. Jones [Tyler], 7 Mich. 176 [161 (1859)], Fulton v. Mehronfield [Mehrenfeld], 8 Ohio St. 440 [ (1858) ], Briel v. City of Natchez, 48 Miss. 436 [423] [ (1873) ].

Kinnare, 55 Miss, at 620-21.

¶ 21. We agree with the McBrooms that the Jackson County Board of Supervisors approved the final plat for the Spring Lake Subdivision in 1972 and that the final plat referenced the dam. The 1972 plat map approved by the Board not only references “DAM,” but also, the dam itself connects with Spring Lake Drive East. It is true that the Board sought to condition its approval of the .Spring Lake Subdivision on the developer’s perpetual maintenance of “the entrance route into said subdivision along the dam” and expressly stated that “Jackson County does not accept said entrance route over the dam for maintenance.” But this disclaimer does not comport with the requirement of Section 404.4 of the Jackson County Subdivision Regulations of 1968 that “the subdividing of the land shall be such as to provide, by means of a public street, each lot with satisfactory access to an existing public street.” And the parties do not dispute that the roadway over the Spring Lake Dam was the sole means of access into the subdivision from 1972 until Lee Taylor Road was opened in 2006.

¶ 22. Because the dam provided the sole means of ingress and egress to and from the subdivision at the time of its approval, we find that the Board acted contrary to its own Subdivision Regulations in 1972 by attempting to disclaim maintenance of the roadway: Jackson County approved the plat with public streets therein and was required by its own regulations to provide a public means of access. The fact that an alternative roadway was constructed in 2006, thirty-four years after the Board approved the final plat of the Spring Lake Subdivision, is of no moment to this Court’s consideration of the 1972 dedication to the public of the Spring Lake Dam.

¶23. With regard to the Subdivision Regulations, the chancellor, however, found that “Section 400.2 does not appear to require strict compliance.” Section 400.2 requires the following:

The arrangement of streets in a subdivision shall either:
a. Provide for the continuation of existing principal streets in surrounding areas; or
b. conform to a plan for area development approved or adopted by the Planning Commission to meet a particular situation where topographical or other conditions make continuance or conformance to existing principal streets impracticable.

The chancellor then cited Section 700.1 of the Subdivision Regulations, governing “Hardship and Modifications”:

[w]here the Planning Commission finds that extraordinary hardships may result from strict compliance with these regulations, it may vary the regulations so that substantial justice may be done and the public interest secured, provided that such variance will not have the effect of nullifying the intent and purpose of the regulations.

The chancellor concluded that “[t]he County was clearly vested with the power to vary its acceptance of subdivision design regulations.”

¶ 24. We do not agree with the chancellor’s determination. First, while “Section 400.2 does not appear to require strict compliance,” it relaxes compliance to allow conformity to an adopted plan only “where topographical or other conditions make continuance or conformance to existing principal streets impracticable.” Jackson County, Miss., Subdivision Regulation 400.2(b) (1968). No conditions, topographical or otherwise, were cited by the Board to allow it to require the developer to maintain the only roadway providing a means of ingress and egress to and from the Spring Lake Subdivision. Otherwise, Section 400.2 mandates “continuation of existing principal streets in a surrounding area,” the requirement which the roadway over Spring Lake Dam appears to satisfy as it provides a continuation of Spring Lake Drive East. Jackson County, Miss., Subdivision Regulation 400.2(a) (1968). Moreover, with regard to Section 700.1, the Board never made a finding, at the time of approval of the final plat, that strict compliance with Section 404.4 (requiring access to a public street) would create an “extraordinary hardship” such that a variance from the Subdivision Regulations was warranted. The chancellor’s holding that the 1968 Subdivision Regulations permitted a variance under these circumstances was erroneous.

¶ 25. Having ascertained that a common law dedication to public use occurred, we turn to a consideration of whether there was an acceptance by the county. According to this Court, “acceptance may be shown in two ways: first, by the formal act of the proper authority competent to speak and act for the public, or it may be implied from circumstances, such as user, etc.” Kinnare, 55 Miss, at 621 (citations omitted).

¶ 26. The McBrooms urge that Hurricane Frederic, in September 1979, exacted significant damage on Spring Lake Dam and the roadway over it. They cite a 1979 letter, dispatched in the aftermath of Hurricane Frederic, from Jon Bennett, Jackson County Planning Commission Director, to Charles Moore, the Governor’s authorized representative of the Mississippi Civil Defense Council. Copies of the letter were sent both to E.A. Khayat, president of the Jackson County Board of Supervisors, and Mel Schneider of the Federal Emergency Management Agency (FEMA), Jackson County. The letter said:

This letter has reference to the spillway at Spring Lake Village in Jackson County which was damaged by Hurricane Frederick [sic].
Please accept this letter as a request for a Damage Survey Report on this spillway, sometimes called the Lake O’ Pines dam [a/k/a Spring Lake Dam]. Even though this appears to be private property, it is a public way for use by the general public including the residents and future residences [sic] in a 4.8 lot subdivision, in addition to fishermen in the county.
Jackson County did not accept maintenance of this spillway as part of the Spring Lake Village Subdivision, but the fact of the matter is that once the developer sells the lots, there is not one of responsibility to maintain the spillway. Therefore, Jackson County had no choice but to maintain this public way and has done so since it was constructed in 1973.
I hope you will be able to assist us in this matter.

(Emphasis added.)

¶ 27. As the chancellor noted, Michelle Coats, director of the Jackson County Planning Commission at the time of the present proceedings in 2012, testified that “[a] Damage Survey Report was what was previously used by FEMA, or by the county, to request funding from FEMA to make repairs to infrastructure damaged in a natural disaster or a declared natural disaster,” for “reimbursement for repairs made to damaged infrastructure.” The chancellor found that no evidence was presented by the McBrooms that Jackson County repaired the dam in the aftermath of Hurricane Frederic or received funds from FEMA as reimbursement for having done so. But, even without documentation of the actual performance of such work, the Bennett letter, quoted above, appeared on official Jackson County Planning Commission letterhead and was drafted and sent in an effort to obtain funds from FEMA, either to restore the dam or to receive reimbursement for having done so. The letter acknowledged the public use of the roadway, both for the residents of the subdivision and for local fishermen and, moreover, recognized that Jackson County had maintained the roadway since its construction.

¶28. Reasonable minds may differ on the question of whether the Bennett letter rises to the level of the express acceptance contemplated by Kinnare, 55 Miss, at 621 (citations omitted), “by the formal act of the proper authority competent to speak and act for the public,” since a county planning commission is by statute an instrumentality of the county board of supervisors. Miss.Code Ann. § 17-1-11 (Rev. 2012). Nevertheless, Mississippi Code Section 17-1-11(8) (Rev. 2012) vests the local planning commission with the authority, “in the performance of its duties,” to “cooperate with, contract with, or accept funds from federal, state or local agencies or private individuals or corporations and may expend such funds.... ” An official letter from the director of the Jackson County Planning Commission to a representative of the Governor of Mississippi, copied to the president of the Jackson County Board of Supervisors and to a FEMA official, evidences a representation by Jackson County both to federal and state authorities respecting the county’s need for funds either to repair the damage to Spring Lake Dam or to reimburse the county for having done so. This cannot be seen as anything other than an overture by local government to the federal government for public monies to be used for public purposes, not private purposes.

¶ 29. Further, this Court has held that acceptance can be manifested by failure to assess taxes on a street. City of Jackson v. Laird, 99 Miss. 476, 55 So. 41, 42 (1911). In Laird, the City of Jackson assessed blocks and lots in the “Split addition” area for taxation, but it did not assess the streets and avenues. Id. One particular street, “Convent [A]venue ... has not been graded nor worked by the city, but has been used to a limited extent by the public,” though other streets and avenues in the “Split addition” area had been “worked and kept in repair by the municipal authorities and used by the public.” Id. According to the Court, “[t]hese facts constitute an acceptance by the city of the dedication to public use of the streets and avenues of ‘Split addition,’ including those streets and avenues which have not been graded and kept in repair.” Id. (citations omitted). Here, Mary Ann Fontenot, from the Mapping Department of the Jackson County Tax Assessor’s Office, testified at trial that the roadway over Spring Lake Dam was “[n]ot being taxed” and that it had not been taxed since she began working with the Mapping Department in 1993. Fontenot further testified that, although she was not employed with Jackson County in 1972, the maps she was examining dated back to 1972. Thus, under Laird, the protracted failure of Jackson County to assess real estate taxes to the Spring Lake Dam demonstrates implied acceptance by the county of its dedication to public use.

¶ 30. Jackson County emphasized Mississippi Code Section 65-7-4(1) (Rev. 2012), which requires counties to “prepare and adopt an official map designating and delineating all public roads on the county road system.” Subsection 5 of Section 65-7-4 provides that “[t]he county road system register shall have priority in case of conflict between the register and the official map.” Citing an opinion of the Mississippi Attorney General, Jackson County argued that this provision clarified which roads were county roads and which roads were not county road for the purpose of maintenance. The chancellor agreed, finding that, “[ajlthough the Court finds the absence of taxes and inclusion of the roadway on the county road map index relevant,” the statute “clearly grants the county road register priority.” But the issue is not a “conflict between the register and the official map,” to which Section 65-7-4(5) applies. What is at issue is whether the failure of Jackson County to tax the roadway and the Spring Lake Dam for more than three decades supports a finding of an implied acceptance under the common law of this State. We find that it does. See Richardson v. Warwick, 8 Miss. 131, 187 (1843) (“An act of the legislature, in derogation of the common law, is strictly construed, and is carried no farther than the words of the act carry it, and the remedy is always within legislative control”)

¶ 31. Likewise, Jackson County recites that “it is settled in our state that mere user by the public, without more, is not sufficient to constitute an implied acceptance.” City of Columbus v. Payne, 155 Miss. 170, 124 So. 269 (1929). Jackson County contests the sufficiency of evidence presented by the McBrooms to support a finding of Jackson County’s acceptance of the dam’s dedication to public use. But, not only did the public use the roadway over Spring Lake Dam for more than thirty years as the sole means of ingress and egress in and out of the Spring Lake Subdivision; the county also represented to FEMA that it had accepted an obligation to maintain the property. Further, it is clear that Jackson County declined to assess taxes against the property since at least 1972. All support a finding that Jackson County accepted Spring Lake Dam and its roadway under the common law of this State.

¶ 32. Furthermore, with regard to implied acceptance, this Court clarified that “[c]ontinued user when taken in connection with the working of the road for nearly twenty years at public expense should be deemed to have been a sufficient acceptance.” Armstrong v. Itawamba County, 195 Miss. 802, 16 So.2d 752, 757 (1944). In Armstrong, this Court sustained an injunction against the Armstrongs, who had erected a gate in an effort to obstruct a road that Itawamba County claimed to have been dedicated to public use and had accepted. Id. at 758. The Court noted that “it does not appear that such traveled route has ever been designated as a public road by an order of the board of supervisors, so far as may affirmatively appear from the minutes of the board,” but that the evidence showed “that the roadway in question was used as a neighborhood or settlement road and worked by the local citizens of the community, when worked at all, for many years prior to 1924, and thereafter at public expense continuously until the year 1941, when such obstructions were placed therein....” Id. at 753.

¶ 33. Likewise, in the 1973 case of Hearn v. Morrow, this Court held that a private road was dedicated to public use and accepted by the Rankin County Board of Supervisors where

the roadway has been used by school buses and the lot owners; the road has been maintained by Rankin County by the installation of 13 culverts on the road; north of the roadway water and electric lines have been installed and south of the roadway a telephone line has been installed for the use of the property owners, all of the utility lines being within the 50 foot right-of-way designated by the plat; at the time of the trial two homes and five trailers were located on lots sold by the appel-lees; the lot owners, other than appellants, were using the road with no restrictions; an additional 228 acres was to be developed utilizing such road and from a totality of the circumstances shown by the proof in this case appellees manifested an intention for the public to have and enjoy a highway on their property.

Hearn v. Morrow, 272 So.2d 645, 647 (Miss.1978) (emphasis added). The Court held that “a public road was established by implication from the circumstances shown by the evidence in this cause....” Id.

¶ 84. Here, Ralph McBroom testified without contradiction that the roadway crossing Spring Lake Dam was utilized by members of the public as the sole entry to the subdivision, at least until the 2006 construction of the Lee Taylor Road: “the garbage man, the mailman, everyone, UPS man. They all-well, matter of fact, he still comes over that thing. But no one had any problems with the road.” He further testified that the Spring Lake Dam “was mowed. It was kept clean. And I assumed someone did it and I assume it was the county.” McBroom then stated, “I saw one person that was maintaining it one time and he was on a Jackson County truck, pulling one of those lawn mowers and he was mowing the grass. But that’s the only one that I can swear to that I ever saw mowing the grass. But nevertheless the grass was mowed by someone.” However, Butch Loper, the present assistant road manager for Jackson County and previous road superintendent for the Jackson County Central Road Department, testified contrarily that he gave his road crews specific instructions not to mow the dam. The road crews “were to stop at each end of the dam.” Loper testified that he utilized the dam for ingress and egress to and from the Spring Lake Subdivision, but that “county end of maintenance” road signs were on the dam at least since the early 1990s. But Loper also testified that there were county road signs and a “Slow, Children at Play” sign that “would have been put up by the county.”

¶ 35. Geraldine McBroom testified that, from the time she and Ralph moved into their new home in 1987, she gardened a great deal outside and, like her husband, saw Jackson County personnel in Jackson County vehicles maintaining the dam. She stated that she saw Jackson County personnel cutting the grass “[w]ith a mower, with a side mower, and may have, on occasion, come with just the straight mower. I never had to really worry about the-outside our property because they kept it mowed.” She testified further that the county once filled in pot holes along the roadway over Spring Lake Dam. Joe Neal, the current Jackson County road manager and former Jackson County West Division road superintendent, testified also that, some time between 2001 and 2002, “[o]ne of our crews accidentally patched some potholes” in the roadway over Spring Lake Dam. With regard to the county’s placement of “county end of maintenance” signs, Neal testified that “[t]he only signs I saw were some that were posted up, I don’t know, maybe a year ago that said the county didn’t maintain this section of the roadway.”

¶ 36. That Jackson County regularly maintained the roadway over Spring Lake Dam was contested at the bench trial. The chancellor held “the McBrooms’ testimony regarding isolated incidents of maintenance by the County to be insufficient to prove implied acceptance by the County.” The evidence presented by the McBrooms that Jackson County at least once had mowed the Spring Lake Dam, had erected county signs along the dam’s roadway, and once had filled in a pothole on the roadway, alone, is too attenuated to warrant a finding of implied acceptance by the county. But that evidence, viewed in conjunction with the Jackson County Planning Commission’s letter to FEMA in which it acknowledged maintenance responsibility for the dam and its roadway and the testimony that the dam never was taxed by the county, preponderate in favor of a finding of an implied acceptance by the county under the common law of this State. All essential public services, including mail services, fire, police, and anyone else desirous of entering or departing the Spring Lake Subdivision, were required for more than thirty years to use the roadway over Spring Lake Dam. Further, roads approved, accepted, and maintained by the county within the Spring Lake Subdivision were accessed by county vehicles and work crews via the roadway over Spring Lake Dam. Considering the totality of the circumstances, we find that “a public road was established by implication from the circumstances shown by the evidence in this cause....” Hearn, 272 So.2d at 647.

¶ 37. We agree with the dissent that “the chancellor had all of this evidence in front of her, as well as the benefit of observing the parties during the trial.” (Emphasis in original.) But in Skates v. Bryant, the only case upon which the dissent relies to support its position, this Court held that the chancellor committed no manifest error in finding that no common law dedication had occurred, since “there was absolutely no evidence that George Bryant intended to donate the road to public use or to benefit the public in any way. The road was intended to be used by the residents of the trailer park, a restrictive group of people, not the public in general.” Skates v. Bryant, 863 So.2d 907, 911 (Miss.2003) (emphasis added). Here, ample evidence was adduced that the land had been both dedicated to public use and accepted by Jackson County, but the chancellor’s analysis did not take into account the common law of dedication and acceptance.

¶ 38. We do not fault the chancellor for her findings of fact; but the application of the common law of dedication and acceptance constitutes a question of law, subject to de novo review by this Court. See Lowrey, 25 So.3d at 285 (citing Chesney, 910 So.2d at 1060). The chancellor held that “the McBrooms’ testimony regarding isolated incidents of maintenance by the County” was “insufficient to prove implied acceptance by the County,” since “Miss.Code Ann. § 65-7-4 mandates that the county road register shall have priority.” With utmost respect to the learned chancellor, that analysis does not appear to have taken into account the common law of dedication and acceptance. As we stated above, Section 65-7-4 applies to a “conflict between the register and the official map,” a scenario inapposite to the present one. The chancellor thus erred as a matter of law.

¶ 39. While the chancellor correctly concluded that Jackson County was not obligated to maintain the roadway over Spring Lake Dam by virtue of the dedication statutes, the chancellor erred by not finding that Jackson County was so obligated under the common law of dedication and acceptance.

CONCLUSION

¶ 40. Spring Lake Dam and the roadway over it were dedicated to public use and accepted by Jackson County in accordance with the common law of this state. Finding that the Chancery Court of Jackson County erred in not so finding, we reverse the trial court’s judgment and render judgment for the McBrooms.

¶ 41. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., CHANDLER, KING AND COLEMAN, JJ., CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J. PIERCE, J„ NOT PARTICIPATING.

LAMAR, Justice,

Dissenting:

¶ 42. This Court will not reverse a chancellor’s decision unless her findings were “manifestly wrong or clearly erroneous.” Skates v. Bryant, 863 So.2d 907, 911 (Miss.2003) (emphasis added). And “[t]his standard [applies] even ivhen conflicting evidence was presented by the parties.” Id. (emphasis added).

¶43. The chancellor’s findings of fact and conclusions of law are, in my view, very thorough and supported by law. The majority spends nine pages of its opinion eking out evidence (on behalf of the McBrooms) that purportedly shows that Jackson County “accepted” their dedication of their land. Among the evidence relied on by the majority is a letter from 1979 that states that “Jackson county did not accept maintenance of this spillway as part of the Spring Lake Village Subdivision .... ” Yet, despite this clear language, the majority takes the phrase “Jackson County had no choice but to maintain this public way” as evidence that Jackson County affirmatively had accepted the McBrooms’ dedication. The majority also places much emphasis on Jackson County’s decision not to tax the roadway, finding that this decision “demonstrated implied acceptance.”

¶ 44. But the problem with this analysis is that the chancellor had all of this evidence in front of her, as well as the benefit of observing the parties during the trial. She issued a well-reasoned opinion supported by the law, finding it “clear that Jackson County has never formally recognized the roadway over the dam as a county road or public easement.” This Court is not to reverse her unless she committed manifest error, even in the face of conflicting evidence. In my view, the majority has taken great pains to highlight all of the evidence favorable to the McBrooms and ultimately substituted its own judgment for that of the chancellor in its finding of “implied acceptance.”

¶ 45. I must also address the majority’s statement that “the chancellor’s analysis did not take into account the common law of dedication and acceptance.” I frankly do not know how the majority can reach the conclusion that the chancellor did not “take into account” commonlaw acceptance. At the conclusion of the trial, the chancellor requested that both parties submit proposed findings of fact and conclusions of law. The McBrooms’ proposed findings of fact and conclusions of law included two pages detailing the doctrine of common-law dedication and acceptance, along with the evidence they thought supported its application in this case. I do not see how the majority can so easily conclude that the chancellor did not consider this argument.

¶ 46. On the contrary, the chancellor’s own findings indicate that she did consider it. In her Judgment, the chancellor noted that “[t]he Mississippi Supreme court has stated that a public road may be created by prescription, dedication or pursuant to statutory provisions.” (Emphasis added.) And later on in her Judgment, the chancellor specifically stated that “[t]he Court has already found that Jackson County never formally or impliedly accepted the roadway over the dam.” (Emphasis added.) It is clear to me that the chancellor considered the common-law dedication theory and rejected it.

¶ 47. And finally, if the majority’s sole reason for reversal here is the chancellor’s failure to “take into account” common-law acceptance (as quoted above), then the proper remedy is to reverse and remand with orders for the chancellor to do so, instead of making findings of fact based on disputed evidence and rendering judgment in favor of the McBrooms. For these reasons, I respectfully dissent.

RANDOLPH, P.J., JOINS THIS OPINION.

      . The term "user” refers to "[t]he actual exercise or enjoyment of any right, property, drugs, franchise, etc.” Black’s Law Dictionary 1383 (5th ed. 1979).

      . Further, Section 65-7-4, which went into effect on July 1, 1998, required adoption of an official map ‘‘[o]n or before July 1, 2000.” The statute would have no relevance to an analysis of common law dedication and acceptance of a purported county road constructed in 1972.

      . Jackson County’s brief states that "while the county accepted the roads within the legal description of the subdivision, when they approved the plat, they did not accept the roadway over the dam.”

      . To be clear, everyone agrees that the McBrooms dedicated their property to public use and that the only real issue is whether Jackson County accepted it.