Earl Harvel Swan, Jr. v. Jack Hill
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00621-COA
EARL HARVEL SWAN, JR. D/B/A BIG BUCK'S B-BQ SMOKEHOUSE, INC.
v.
JACK HILL D/B/A KAR KLEEN
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
2/11/2002
HON. VICKI R. BARNES
WARREN COUNTY CHANCERY COURT
EVERETTE VERHINE
KENNETH M. HARPER
WES W. PETERS
CIVIL - REAL PROPERTY
CHANCELLOR GRANTED AN EASEMENT OF
NECESSITY
REVERSED AND RENDERED - 07/15/2003
EN BANC
CHANDLER, J., FOR THE COURT:
¶1.
The County Court of Warren County granted an easement to Jack Hill over land owned by
Earl Harvel Swan, Jr. Swan appealed to the Chancery Court which affirmed the granting of an
easement by the County Court. Aggrieved by the judgment, Swan appeals asserting the following
issues:
I.
WHETHER THE TRIAL COURT LACKED JURISDICTION IN AWARDING HILL AN
INJUNCTION.
II.
WHETHER THE TRIAL COURT ERRED IN GRANTING HILL AN EASEMENT BY
NECESSITY.
II.
WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY
PRESCRIPTION.
WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD,
VAGUE AND UNDULY BURDENSOME EASEMENT.
IV.
¶2.
Finding that the trial court erred, we reverse and render.
PROCEDURAL HISTORY
¶3.
On March 29, 2000, Hill filed a complaint with the County Court of Warren County requesting an
easement across Swan's property. He also asked the court to grant him a temporary restraining order or
preliminary injunction against Swan. On April 10, 2000, the county court ordered Swan to refrain from
altering the use of Hill's land that impeded or conflicted with the prior historical use of the land.
¶4.
At trial, on March 28 and 29, 2001, the court granted Hill an easement by necessity and the jury
awarded $6,000 in compensatory damages and $4,000 in punitive damages. The chancery court affirmed
the lower court's decision on appeal, and now Swan appeals to this Court.
FACTS
¶5.
Swan, owner of "Big Buck's BBQ Smokehouse," and Hill, owner of "Kar Kleen" carwash, are
neighboring landowners in Warren County. Swan's restaurant is located on the corner of Clay and Hope
Street, facing Clay Street. Clay Street is a major thoroughfare off Interstate 20 entering downtown
Vicksburg. Hope Street is a side street which accesses Hill's carwash, an apartment complex, and a few
private homes.
¶6.
Swan's property is located between Clay Street and Hill's carwash. Hill's property does not border
Clay Street at any point but does border Hope Street. A bowling alley, Red Carpet Lanes, is located to
2
the side of the carwash and the restaurant. The area in dispute consists of approximately 25 by 62 feet
behind the restaurant.
¶7.
All three businesses were developed and owned by Dr. and Mrs. M. E. Hinman over thirty years
ago. The Hinmans later sold the three properties separately. Prior to buying the carwash in 1985, Hill
managed the property for approximately ten years. The Hinmans sold the bowling alley to John Magruder
in 1993 and the restaurant to Lawrence Nosser in 1994. In December of 1999, Nosser sold his interest
in the restaurant to Swan.
¶8.
Hill, Magruder and Nosser testified that the parking lot which connects the restaurant, carwash,
and bowling alley has been open and free of any obstruction for the past thirty years. They stated that Hill's
customers access the carwash by either driving through the parking lot of the restaurant and the bowling
alley or through the Hope Street entrance. A sign located on Clay Street for over ten years directs the
public to the carwash behind the restaurant. Swan acknowledged that he was aware Hill's customers were
accessing the carwash through the restaurant's parking lot.
¶9.
After Swan bought the restaurant, he began to refurbish and remodel the premises. The
renovations included moving a dumpster to the corner of the property and building a fence that was
approximately eight feet tall and extended to the bowling alley's property line. These new changes instigated
disputes over the property between Swan and Hill.
¶10.
Swan stated that he moved the dumpster to keep it away from his newly built smoker because he
saw it as a possible health hazard. He also said he built the fence in order to protect the restaurant from
potential liability due to all the cars traveling across his property.
¶11.
In 1988, Hill built an automatic carwash ten to twelve feet from Swan's property line. A customer
must enter the automatic carwash on the side facing the restaurant. Hill testified that Swan placed the
3
dumpster and the fence in front of the automatic carwash impeding his customers' ability to maneuver into
the carwash. He also stated that the fence blocked visibility of the carwash from Clay Street. The fence
was constructed approximately five days prior to the court's temporary restraining order.
¶12.
Swan testified that the fence did not completely block access to the carwash. He stated that Hill's
customers could access the carwash through Hope Street and through Clay Street by traveling over the
right side of the bowling alley's property. Hill testified that it was virtually impossible to maneuver through
the bowling alley's property because it was only twenty feet wide and the bowling alley's employees
generally parked along that side.
¶13.
Magruder and Nosser testified that Hill had over the years helped maintain the parking lot that
connected all properties by filling in potholes. In July of 2000 Hill filled in potholes located on his property
and Swan's property. He testified that after completion, Swan recreated the potholes by shoveling out the
asphalt and placing it on the doorstep of Hill's office. Swan admitted that he did this act and stated that it
was out of "pure meanness."
I.
DID THE COUNTY COURT LACK JURISDICTION TO ENTER AN INJUNCTION
AGAINST SWAN?
¶14.
The county court "shall have jurisdiction concurrent with the circuit and chancery courts in all
matters of law and equity wherein the amount of value of the thing in controversy shall not exceed. . . the
sum of $75,000." Miss. Code Ann. § 9-9-21(1) (Rev. 2002). However, Miss. Code Ann. § 9-9-23
(Rev. 2002) states:
The county judge shall have power to issue writs, and to try matters, of habeas corpus on
application to him therefor, or when made returnable before him by a superior judge. He
shall also have the power to order the issuance of writs of certiorari, supersedeas,
attachments, and other remedial writs in all cases pending in, or within the jurisdiction of,
his court . . . But he shall not have original power to issue writs of injunction, or other
4
remedial writs in equity or in law except hereinabove specified as being within his
jurisdiction unless a judge authorized to do so refers it to the county court.
Therefore, the two statutes seem to contradict one another.
¶15.
In Welch v. Bryant 157 Miss. 559, 563, 128 So. 734, 736 (1930), the court held that the county
court lacked power to issue an injunction to prohibit someone's further employment. The court held that
this was an issue of civil rights and not appropriate for the county court. Id. However, a more recent case,
citing Miss. Code Ann. § 9-9-21(1), stated that a "claim for specific performance of a contract of
employment plus attendant injunctive relief is well within the jurisdiction of the county court on its equity
side." Lee v. Coahoma Opportunities, Inc., 485 So. 2d 293, 294 (Miss. 1986).
¶16.
Also in Welch the court stated that where "property or property interests" are involved, the county
court has appropriate jurisdiction. Welch, 157 Miss. at 563, 128 So. at 736. Two cases have indicated
that a county court has jurisdiction to rule on acts of replevin. McCoy v. McRae, 204 Miss. 309, 320, 37
So. 2d 353, 356 (1948) and Vansant v. Dodds, 164 Miss. 787, 801, 145 So. 613, 614 (1933).
Therefore, this Court finds that the injunctive order granted by the county court judge was within the
meaning of the relevant statute as that statute has been interpreted by case law.
II.
DID THE TRIAL COURT ERR IN GRANTING HILL AN EASEMENT BY NECESSITY?
¶17.
"It is well established in our law that an easement may be created by grant, implication, or
prescription." Screws v. Watson, 755 So. 2d 1289, 1293 (¶7) (Miss. Ct. App. 2000) (citing Gulf Park
Water Co., Inc. v. First Ocean Springs Development Co., 530 So. 2d 1325, 1330 (Miss. 1988)). "An
implied easement must be continuous, apparent, permanent and necessary." Id. The terms easement by
necessity and easement by implication are used interchangeably. Broadhead v. Terpening, 611 So. 2d
949, 952-53 (Miss. 1992). "The burden of proof is on the claimant seeking an easement by necessity; the
5
party must establish that he is implicitly entitled to the right of way across another's land." Leaf River
Forest Products v. Rowell, 819 So. 2d 1281, 1284 (¶11) (Miss. Ct. App. 2002).
¶18.
Mississippi case law establishes that an easement by necessity may be created by proving only
reasonable necessity rather than absolute physical necessity. Fourth Davis Island Land Company v.
Parker, 469 So. 2d 516, 520 (Miss. 1985). Therefore, the court will grant an easement where the land
is not necessarily landlocked but would be "highly convenient or essential to the full enjoyment of the land."
Id.
¶19.
The concern of the court is only whether alternative routes exist. Id. at 521. If none exist then the
easement will be considered necessary. Id. Where other alternatives exist, the court will grant an easement
over the neighboring landowner's property if it is the only reasonably necessary alternative available. Id.
¶20.
The trial judge agreed with Hill's assertion that he had obtained an implied easement due to the
historical use of the land. It is clear from the record that Hill's property can be accessed from Clay and
Hope Streets. Therefore, this Court must determine if accessing Hill's property through Swan's property
is the only reasonably necessary alternative. We conclude that it is not.
¶21.
In determining what is reasonably necessary, the court looks to "whether an alternative would
involve disproportionate expense and inconvenience." Id. "Such a situation would arise when the expense
of making the means of access available would exceed the entire value of the property to which access was
sought." Mississippi Power Company v. Fairchild, 791 So. 2d 262, 266 (¶11) (Miss. Ct. App. 2001)
(quoting Marshall v. Martin, 107 Conn. 32, 139 A. 348, 350 (1927)). If the land would be useless and
valueless without the easement then the landowner is entitled to an easement. Id.
6
¶22.
An easement is reasonably necessary if the landowner's only alternative route is by building a
bridge. Alpaugh v. Moore, 568 So. 2d 291, 295 (Miss. 1990); Rotenberry v. Renfro, 214 So. 2d 275,
278 (Miss. 1968); Mississippi Power Company, 791 So. 2d at 267 (¶16). However, the court does not
award easements when an alternate route exits but it is longer and more inconvenient. Wills v. Reid, 86
Miss. 446, 452, 38 So. 793, 795 (1905); Ganier v. Mansour, 766 So. 2d 3, 8 (Miss. Ct. App. 2000);
Screws v. Watson, 755 So. 2d 1289, 1294 (¶8) (Miss. Ct. App. 2000).
¶23.
Hill asserts that Swan's obstructions caused his business to suffer lost profits during the year 2000.
Joyce Hill, Hill's wife, testified without providing any documentation, that sales from the automatic carwash
were $2,000 less than the previous year. Hill also stated that it would take two months to reconstruct the
automatic carwash and that the project would be costly. Hill provided no estimate of the cost of
remodeling his carwash or of the worth of his business. Due to Hill's failure to establish a disproportionate
expense in using the alternate routes available to him, Hill failed to prove that he was entitled to an easement
by necessity.
III.
WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.
¶24.
"An easement by prescription arises where another's property is used for access without consent
of the owner." Property Ownership, in 7 JEFFREY JACKSON & MARY MILLER,
ENCYCLOPEDIA OF MISSISSIPPI LAW 19, § 60:23 (2001). Prescription is shown by use which
is: (1) open, notorious and visible; (2) hostile; (3) under a claim of ownership; (4) exclusive; (5) peaceful;
and (6) continuous and uninterrupted for ten years. Rawls v. Blakeney, 831 So. 2d 1205, 1207 (¶8)
(Miss. Ct. App. 2002).
7
¶25.
In Hill's complaint he argued that he obtained a prescriptive easement because of the period of time
he had been using the parking lot. However, the period of time does not begin to run until some form of
objection to the use is made by the landowner. Sharp v. White, 749 So. 2d 41, 42 (¶8) (Miss. 1999).
In Hill's situation, Swan did not make an objection until January 2000 when he began to remodel the
property. Therefore, the continuous and uninterrupted use of the property did not begin until January of
2000. Prior to Swan's ownership, Hill simply had the enjoyment of a mere permissive right of passage.
IV.
WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE
AND UNDULY BURDENSOME EASEMENT.
¶26.
Because of this Court's ruling on the preceding issues, this question is now moot.
¶27. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS
REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
KING, P.J., BRIDGES, THOMAS, LEE, IRVING AND MYERS, JJ., CONCUR.
SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
MCMILLIN, C.J. AND GRIFFIS, J.
SOUTHWICK, P.J., CONCURRING:
¶28.
With respect for the opinion of the majority, I interpret differently both the statute on county court
jurisdiction and the rules for easements by necessity. Still, I concur in the result.
County court jurisdictional statute
¶29.
The majority finds a conflict between the statute that provides generally that county courts will have
jurisdiction concurrent with chancery and circuit courts, and another statute that could be seen as restricting
injunction authority. Miss. Code Ann. §§ 9-9-21 & 9-9-23 (Rev. 2002). I find no conflict. In my view,
8
the injunction statute distinguishes between a county judge's "original power" to issue an injunction, as
opposed to the power in cases "pending in, or within the jurisdiction" of the county court. For ease of
discussion, I have added numbers and created paragraphs to various key parts of the statute that discusses
the authority over injunctions.
(1) The county judge shall have power to issue writs, and to try matters, of habeas
corpus on application to him therefor, or when made returnable before him by a superior
judge.
(2) He shall also have the power to order the issuance of writs of certiorari,
supersedeas, attachments, and other remedial writs in all cases pending in, or within the
jurisdiction of, his court.
(3) He shall have the authority to issue search warrants in his county returnable to
his own court or to any court of a justice of the peace within his county in the same manner
as is provided by law for the issuance of search warrants by justices of the peace.
(4) In all cases pending in, or within the jurisdiction of, his court, he shall have, in
term time, and in vacation, the power to order, do or determine to the same extent and in
the same manner as a justice of the peace or a circuit judge or a chancellor could do in
term time or in vacation in such cases.
(5) But he shall not have original power to issue writs of injunction, or other
remedial writs in equity or in law except in those cases hereinabove specified as being
within his jurisdiction:
(6) Provided, however, that when any judge or chancellor authorized to issue such
writs of injunction, or any other equitable or legal remedial writs hereinabove reserved,
shall so direct in writing the hearing of application therefor may be by him referred to the
county judge, in which event the said direction of the superior judge shall vest in the said
county judge all authority to take such action on said application as the said superior judge
could have taken under the right and the law, had the said application been at all times
before the said superior judge. The jurisdiction authorized under the foregoing proviso
shall cease upon the denying or granting of the application.
Miss. Code Ann. § 9-9-23 (Rev. 2002) (section numbers and paragraphs added).
¶30.
The statute, on first reading, presents an analytical quagmire. After granting a county judge full
authority in sections 1 through 4 to issue essentially all remedial writs, section 5 places some sort of limit
on the authority as it pertains to suits seeking injunctive relief, then it grants additional power in section 6.
Indeed, the language may seem a meaningless circular proposition. Section 5 seems to provide that the
9
county court does not have jurisdiction to enter injunctions except in those cases where it has jurisdiction
of the case, and in such a case it then does have authority to enter an injunction, with the proviso of section
6 then serving an unknown purpose.
¶31.
However, with the aid of a historical look at the statutory jurisdiction of a county court judge, the
reason for this apparently circular language becomes clear. Some judges have long had authority to issue
injunctions in cases that are not otherwise within the jurisdiction of that court. A county court judge has
not been granted that right. That is the reason for this difficult language.
¶32.
The power of a circuit or a chancery judge to issue an injunction has been substantially broader than
one might assume. Under Section 9-1-19, a circuit judge or a chancellor can issue an injunction “returnable
to any court, whether the suit or proceedings be pending in the district of the judge or chancellor granting
the same or not . . . .” Miss. Code Ann. § 9-1-19 (Rev. 2002) (emphasis supplied). At least some by the
late 1920s perceived that this statewide authority for judges to grant injunctions no matter where a case
arose was the subject of abuse. The commissioners responsible for drafting the Mississippi Code of 1930
prepared a booklet to explain to the Legislature their reasons for proposing changes in State law. They
wrote the following about changes that they were recommending in the authority of circuit judges and
chancellors to issue injunctions:
The first of these provisions relates to a situation that has caused some embarrassing
spectacles not only in this state but in other states. Namely, when an affirmance of
conviction in a criminal case has been had and the sentence is about to be executed then
first one kind of a writ and then another has been presented round over the state from one
judge to another until some judge is found who will grant a writ to hold up
the execution, then when this is untangled and the sheriff is about to execute the sentence
again then another writ is presented.
Miss. Code of 1930, Explanatory Booklet, Ch. 13 § 633.
10
¶33.
Just four years before this explanation, the Legislature authorized the first county courts in the state.
1926 Miss. Laws ch. 131. In that statute, a county judge was denied the "original power to issue writs of
injunction or remedial writs other than of habeas corpus, but when any judge authorized to issue such writs
of injunction or remedial writs shall so direct in writing the hearing of applications therefor may be by him
referred to or be returnable before the county judge, in which event the said direction of the superior judge
shall vest in the said county judge all authority to take such action therein as the said superior judge could
have taken under the right and the law, had the said application and the said hearing been at all times before
the said superior judge." 1926 Miss. Laws ch. 131, § 9. It appears that in that first statutory version, a
county judge had authority to issue writs of injunction only if a "superior judge" delegated the right.
¶34.
In 1930, the language that remains as section 9-9-23 was adopted. It constituted a substantial
revision to the county judge's former power over injunctions. The power was expanded to permit the
issuance of certain writs including injunctions in all cases "pending in, or within the jurisdiction of, his court,"
as stated in both sections 2 and 4 as I have enumerated the statutory sentences above; section 3 grants
search warrant authority only within the judge's county. Section 5 of the current statute then gave a proviso
that there was no "original power to issue writs of injunction . . . except in those cases" that were in the
county court's "hereinabove specified" jurisdiction. That is saying nothing more than unlike the other courts
that under section 9-1-19 had statewide jurisdiction to issue injunctions, the county court was limited to the
issuance of injunctions in cases that otherwise fell within its jurisdiction. The last section, which I have
enumerated "6," still allowed a chancellor to send to the county judge a " hereinabove reserved" injunction
issue. Therefore, on a case in which an injunction could be issued by a chancellor but not usually by a
county judge, the chancellor could send the application to the county judge for a ruling. Section 1 has a
similar effect.
11
¶35.
Though perhaps not the clearest possible statute, that is because the context for the language is not
immediately obvious. Coincident with the concerns raised by the 1930 Code commissioners about
unlimited original injunction power in the constitutionally-created trial courts, a provision was written for
the new statutory trial courts on the subject of injunctions. The county court statute limited injunction
authority to cases otherwise properly brought to that particular county court. The statute did not allow
litigants to bring still other injunction suits under an argument that the county judge had inherited the
statewide authority of other judges.
¶36.
In the case before us, the Warren County Court had jurisdiction of the underlying dispute as the
amount in controversy did not exceed the county court’s jurisdictional limit and the cause of action arose
in that county. This county court had authority to enter an injunction in this case. Unlike the majority, I do
not find that the reason for the authority is that property interests are involved. The authority exists because
the cause of action was properly the subject of suit in the Warren County Court. Therefore, the remedy
of injunction is available.
¶37.
There is nothing contradictory about sections 9-9-23 and 9-9-21.
Easement by necessity
¶38.
A minor point begins my discussion. The majority begins its analysis of easements by necessity by
noting that an absolute necessity is not required, only a reasonable one. Though the matter is not contested,
omitted from the analysis is the threshold element that the tract that is blocked in its access to a public road
must have once been joined with the tract over which the access is allegedly necessary. Dieck v. Landry,
796 So. 2d 1004, 1008 (Miss. 2001). That predicate for an easement by necessity exists here. Still, this
should not to be overlooked, as necessity of access without historical unity of tracts creates no easement
right.
12
¶39.
In addition, though this is not a discovered factor in the Mississippi precedents, surely a necessity
does not arise because of something that the party seeking the easement has done to his own property that
restricts otherwise usable access. A party with an opening to a street who builds a wall blocking his own
access cannot then turn to his neighbor and demand an alternative route.
¶40.
I find that in the present case, the primary reason for the difficulty of access is the manner in which
Hill placed the car wash on the lot. Of course, he did so prior to any issue of an objection to his use of the
access across Swan's property had arisen. Faith in one's neighbor is laudable, but it is not a legally
enforceable basis for an easement. Prior to creating this situation, it was incumbent on Hill to acquire more
certain rights to the use of his neighbor's land. He did not. He now, unfortunately, is left with some
expensive consequences.
¶41.
For these reasons, I concur in the determination that no easement was created.
McMILLIN, C.J., AND GRIFFIS, J., JOIN THIS SEPARATE WRITTEN OPINION.
13
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.