D.L. Harkness v. Butterworth Hunting Club, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01842-COA
D.L. HARKNESS AND MARY P. HARKNESS
APPELLANTS
v.
BUTTERWORTH HUNTING CLUB, INC.,
ROBERT HAMMETT, RICHARD HAMMETT
AND HAROLD HAMMETT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
09/24/2009
HON. JANACE H. GOREE
HOLMES COUNTY CHANCERY COURT
MICHAEL D. SIMMONS
JOHN MICHAEL GILMORE
CIVIL - REAL PROPERTY
EASEMENT BY NECESSITY AWARDED
TO BUTTERWORTH HUNTING CLUB
REVERSED AND RENDERED - 03/15/2011
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
D.L. and Mary Harkness sued Butterworth Hunting Club (BHC) for trespass, to quiet
title, and to enjoin BHC from trespassing across a portion of the Harknesses’ property in
Holmes County, Mississippi. BHC countersued for an easement by necessity. The Holmes
County Chancery Court declined to grant the Harknesses any relief and awarded BHC an
easement by necessity. Aggrieved, the Harknesses appeal. After careful consideration, we
find that the chancery court erred when it awarded BHC an easement by necessity.
Accordingly, we reverse the judgment of the chancery court and render a judgment in favor
of the Harknesses enjoining BHC from trespassing on the Harknesses’ property.
FACTS AND PROCEDURAL HISTORY
¶2.
BHC acquired the title to its property via a warranty deed from Holmes and Carroll
Land Company, Inc. in April 1992. It is undisputed that BHC’s property was landlocked at
that time. BHC did not obtain access to its property by way of an easement by necessity.
One month earlier, M.V. Cooley acquired adjacent property from Holmes and Carroll. That
property changed hands three more times before the Harknesses acquired it in 2007. BHC’s
property and the Harknesses’ property were both once part of a common tract. However,
BHC and the Harknesses do not derive their respective titles from the same grantor.
¶3.
BHC also leased sixteenth section land for hunting. The sixteenth section land that
BHC leased adjoined both BHC’s and the Harknesses’ property. BHC accessed its property
via a road (the Road) that begins on a public road known as Hebron Road. The Road then
crosses the previously mentioned sixteenth section land, runs across the southwest corner of
the Harknesses’ property, and finally runs onto BHC’s property. BHC’s access across the
Harknesses’ property via the Road is the center of this dispute.
¶4.
For many years, BHC leased or had permission to use the Road. After the Harknesses
acquired their property in 2007, they asked BHC to refrain from using the Road. BHC used
the Road anyway. BHC contended that the Road was a public road. Failing that, BHC also
claimed that it had an easement by necessity or a prescriptive easement to traverse the
Harknesses’ property. The Harknesses attempted to block BHC from using the Road. BHC
cut locks on gates that the Harknesses had erected, cut fences on the Harknesses’ property,
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and filled ditches that the Harknesses dug at each end of the Road.
¶5.
In December 2007, the Harknesses sued BHC on multiple theories intended to prevent
BHC from trespassing on their property. BHC argued that the Road was a public road;
therefore, the Harknesses had no authority to prevent BHC from using the road for ingress
and egress to its property. BHC also countersued and argued that it was entitled to an
easement to traverse the Harknesses’ property. The parties went before the chancellor in
June 2009. In September 2009, the chancellor rendered her opinion. The chancellor found
that, to access BHC’s property by some means other than by use of the Road, BHC would
have to build a new road and cross “several deep ravines” by either building a bridge or
placing a culvert across one or more ditches. The chancellor further found that it would be
“very expensive” for BHC to do so. The record does not indicate that the chancellor
personally viewed the property or the “several deep ravines.” There was no testimony
regarding what it would cost to cross the “ravines.”
Nevertheless, according to the
chancellor, BHC was, therefore, entitled to an easement by necessity. The Harknesses claim
the chancellor erred when she awarded BHC an easement by necessity.
STANDARD OF REVIEW
¶6.
Unless they were either manifestly wrong or clearly erroneous, we will not disturb the
chancellor’s findings on appeal. Daley v. Hughes, 4 So. 3d 364, 367 (¶6) (Miss. Ct. App.
2008). If there is substantial evidence that supports the chancellor’s decision, we will affirm.
Id.
ANALYSIS
¶7.
The Harknesses argue that the chancellor erred when she awarded BHC an easement
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by necessity. The Harknesses base their claim on the following arguments: (1) BHC was
landlocked at the time it acquired its property; (2) BHC does not derive its title from the same
person from whom the Harknesses acquired their title; and (3) BHC failed to sustain its
burden of proof regarding the expenses involved with obtaining access to its property by
some means other than the Road.
¶8.
“[A]n easement by necessity arises by implied grant when a part of a
commonly-owned tract of land is severed in such a way that either portion of the property
has been rendered inaccessible except by passing over the other portion or by trespassing on
the lands of another.” Broadhead v. Terpening, 611 So. 2d 949, 953 (Miss. 1992). The
concept regarding an easement by necessity is based upon “the implication that someone who
owned a large tract would not intend to create inaccessible smaller parcels.” Leaf River
Forest Prods., Inc. v. Rowell, 819 So. 2d 1281, 1284 (¶10) (Miss. Ct. App. 2002) (quoting
Cox v. Trustmark Nat’l Bank, 733 So. 2d 353, 356 (¶20) (Miss. Ct. App. 1999)). To
demonstrate a prima facie case for an easement by necessity, a claimant must prove that “(1)
the dominant and servient parcels were once under common ownership, (2) severance by the
common owner(s), (3) the necessity for the easement arose at the time of the severance by
the common owner(s), and (4) the necessity is continuing.” Daley, 4 So. 3d at 368 (¶11).
¶9.
As mentioned above, the Harknesses argue that BHC failed to sustain its burden of
proving that its property became landlocked as a result of the Harknesses’ acquisition of their
property. Specifically, the Harknesses argue as follows:
BHC’s witnesses - - officers and stockholders in BHC - - testified that they
knew that the BHC land was landlocked when they purchased it in 1992.
Moreover, these same witnesses testified that they knew that BHC’s land was
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severed from a landlocked tract of land. BHC presented no evidence to show
when or how Holmes and Carroll Land Company’s land - - the larger tract
from which its land was severed and conveyed - - became landlocked or what
means of access may have been available at the time Holmes and Carroll Land
Company’s land became landlocked.
(Internal citations omitted). Stated differently, the Harknesses claim that BHC was not
entitled to an easement by necessity because BHC knowingly acquired landlocked property
from a dominant estate that was, itself, landlocked. Essentially, the Harknesses argue that
they should not be responsible for providing BHC with access to its property when they were
not responsible for BHC’s property becoming landlocked, and they will not be compensated
in any way for the easement that BHC obtained.
¶10.
BHC argues that it is irrelevant that its property was landlocked at the time it acquired
it. BHC cites to precedent that held: “[A]n easement by necessity will be granted when the
land is not necessarily landlocked but would be ‘highly convenient or essential to the full
enjoyment of the land.’” Sturdivant v. Todd, 956 So. 2d 977, 993 (¶54) (Miss. Ct. App.
2007) (quoting Fourth Davis Island Land Co. v. Parker, 469 So. 2d 516, 520 (Miss. 1985)).
BHC also claims that the pertinent consideration “is limited to whether the alternative route
would involve disproportionate expense and inconvenience.” Id. BHC also relies on
Sturdivant for the principle that an alternative route involves disproportionate expense and
inconvenience “when the expense of making the means of access available would exceed the
entire value of the property to which access was sought.” Id. (quoting Miss. Power Co. v.
Fairchild, 791 So. 2d 262, 266 (¶11) (Miss. Ct. App. 2001)). However, “[a]n easement by
necessity will not be awarded when the only evidence before the court is that the alternative
route would be longer and more inconvenient.” Id. (citing Swan v. Hill, 855 So. 2d 459, 464
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(¶22) (Miss. Ct. App. 2003)).
¶11.
BHC is correct that this Court has held that an easement by necessity will be awarded
“where the land is not necessarily landlocked but would be highly convenient or essential to
the full enjoyment of the land.” Id. (internal citation omitted). See also Daley v. Hughes, 4
So. 3d 364, 369 (¶16) (Miss. Ct. App. 2008) (quoting Swan, 855 So. 2d at 463 (¶18)). That
language originated from the Mississippi Supreme Court’s decision in Fourth Davis Island
Land Co., 469 So. 2d at 520. After carefully reviewing the supreme court’s decision in
Fourth Davis Island, it is clear that this Court’s decisions regarding the concept that an
easement by necessity will be awarded upon a demonstration of convenience or upon a
demonstration that an easement is essential to the full enjoyment of the land are
misapplications of the supreme court’s attempt to distinguish two distinctly separate
concepts.
¶12.
In Fourth Davis Island, the supreme court distinguished two types of easements by
necessity; those involving what the supreme court termed “ways of necessity,” and those
involving matters that may be “highly convenient or essential to the full enjoyment of the
land.” Id. at 521. The supreme court cited two cases as examples of circumstances in which
an easement may qualify as one which is highly convenient or essential to the full enjoyment
of the land. Id. One case, Shipman v. Lovelace, 214 Miss. 241, 249, 58 So. 2d 657, 659
(1952), involved an attempt to secure an easement for access to a sewer. The other case,
Hutcheson v. Sumrall, 220 Miss. 834, 838, 72 So. 2d 225, 226 (1954), involved an attempt
to secure an easement for access to a water line. Fourth Davis Island involved an attempt
to secure an easement for electrical service. Fourth Davis Island, 469 So. 2d at 517. The
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supreme court held that there is one standard of proof that applies to an attempt to obtain an
implied easement for utility services, and a different standard of proof that applies to an
attempt to obtain an implied easement for the purpose of ingress and egress over another
landowner’s property. The supreme court clearly held that “[s]ince the easement sought by
Fourth Davis is not a way of necessity, it follows that the chancellor should not have held
Fourth Davis to the burden of proving strict necessity but instead reasonable necessity.” Id.
Conversely, one must prove strict necessity to obtain an implied easement involving a “way
of necessity.” Id. To the extent that this Court has held otherwise, we now correct those
misapplications of the supreme court’s decisions.
¶13.
We also take this opportunity to clarify another matter. The Harknesses argue that the
chancellor erred when she awarded BHC an easement by necessity because BHC failed to
present evidence regarding the expenses involved in accessing BHC’s property by some
means other than the Road. It was undisputed that BHC had an alternate route to access its
land without trespassing across the Harknesses’ property, although that means was more
inconvenient to BHC, and it would be more expensive than acquiring an easement by
necessity from the Harknesses. In Evanna Plantation, Inc. v. Thomas, 999 So. 2d 442, 447
(¶16) (Miss. Ct. App. 2009), this Court held that, because there was insufficient proof that
a bridge was the sole means to access property, there was no testimony regarding the expense
involved with crossing a body of water, and there was no testimony as to the value of the
property to be accessed, the chancellor did not err when he declined to award an easement
by necessity.
¶14.
However, in Daley, 4 So. 3d at 369 (¶18), this Court found no error in a chancellor’s
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decision to award an easement by necessity where the appellees in that case “failed to present
evidence comparing the cost of building a bridge ($10,000) to the value of the land to which
access was sought, in that, no evidence was presented regarding the value of the Appellees'
land south of the creek.” Daley relied on three cases for its holding that proof of the value
of the land to which access is sought is not essential to prove reasonable necessity for an
easement: Alpaugh v. Moore, 568 So. 2d 291 (Miss. 1990), Rotenberry v. Renfro, 214 So.
2d 275 (Miss. 1968), and Mississippi Power Co. v. Fairchild, 791 So. 2d 262 (Miss. Ct. App.
2001). Those cases all involved attempts to secure access by way of the procedure discussed
in what eventually became Mississippi Code Annotated section 65-7-201 (Rev. 2005).
Alpaugh, 568 So. 2d at 293; Rotenberry, 214 So. 2d at 276; Fairchild, 791 So. 2d at 265
(¶10). Those cases did not pertain to a landowner’s attempt to secure a “way of access”
easement by necessity across another landowner’s property.
Accordingly, Alpaugh,
Rotenberry, and Fairchild should not be interpreted in a manner that allows a landowner to
obtain a “way of access” easement by necessity without the necessary proof of the costs
involved in obtaining alternative access to property or the relative costs of the property one
seeks to access. To clarify, we reiterate that an easement by necessity will not be awarded
when the only evidence presented was that an alternative route would be longer and less
convenient. Swan, 855 So. 2d at 464 (¶22). Where one seeks to obtain a “way of access”
easement by necessity but submits no evidence as to the allegedly higher costs of an
alternative route, a trial court will not err in declining to award an easement. Because BHC
presented no evidence regarding the costs of accessing its property by some means other than
by crossing the Harknesses’ land, the chancellor further erred when she awarded BHC an
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easement by necessity without any supporting proof. Simply stating that it would appear to
be “very expensive” to access property by some other means is not sufficient.
¶15.
It bears mentioning that BHC had the option of employing a different legal
mechanism to secure access over the Road. Mississippi Code Annotated section 65-7-201
(Rev. 2005) provides as follows:
When any person shall desire to have a private road laid out through the land
of another, when necessary for ingress and egress, he shall apply by petition,
stating the facts and reasons, to the special court of eminent domain created
under Section 11-27-3 of the county where the land or part of it is located, and
the case shall proceed as nearly as possible as provided in Title 11, Chapter 27
for the condemnation of private property for public use. The court sitting
without a jury shall determine the reasonableness of the application. The
owner of the property shall be a necessary party to the proceedings. If the
court finds in favor of the petitioner, all damages that the jury determines the
landowner should be compensated for shall be assessed against and shall be
paid by the person applying for the private road, and he shall pay all the costs
and expenses incurred in the proceedings.
However, in the event that BHC obtained an easement across the Harknesses’ land pursuant
to the procedure set forth in section 65-7-201, BHC would have been required to compensate
the Harknesses for its involuntary taking of an interest in the Harknesses’ property. Here,
BHC sought to obtain access in a manner that, if sufficiently demonstrated, would not have
required it to compensate the Harknesses at all. In any event, we find that the chancellor
abused her discretion when she found that BHC had presented sufficient proof of its
entitlement to an easement by necessity without presenting any evidence regarding the
expenses involved in accessing its property in some manner other than by driving on the
Harknesses’ property. Accordingly, we reverse the judgment of the chancellor and render
judgment for the Harknesses.
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¶16. THE JUDGMENT OF THE HOLMES COUNTY CHANCERY COURT IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEES.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE AND MAXWELL,
JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
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