Heidkamper v. Odom, et al.
| Docket Number: | 2003-CA-00882-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-17-2004 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Property damage - Imminent harm - Prohibitory injunction - Mandatory injunction -Reasonably practicable Judge(s) Concurring: Bridges, P.J., Lee, Myers, Chandler and Griffis, JJ. Non Participating Judge(s): Irving and Barnes, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 03-31-2003 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: JUDGMENT ENJOINING APPELLANT FROM FURTHER DAMAGE, AND ORDERING HIM TO INSTALL DRAIN PIPES, REPAIR DAMAGE AND PAY $4,000 FOR DAMAGE AND $2,000 FOR ATTORNEY’S FEES. Case Number: G2001-113 S/2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Herman E. Heidkamper |
LEE B. AGNEW
KATE S. EIDT |
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| Appellee: | W. W. Odom, Deanna Odom and Charlotte LeBlanc | W. W. ODOM (PRO SE) DEANNA ODOM (PRO SE) CHARLOTTE LEBLANC (PRO SE) |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Property damage - Imminent harm - Prohibitory injunction - Mandatory injunction -Reasonably practicable |
| Summary of the Facts: | Charlotte LeBlanc, W.W. Odom and DeAnna Odom sought an injunction to enjoin Herman Heidkamper from further flooding their land with overflow from his pond. The court enjoined Heidkamper from further damaging the Odoms’ property, and ordered him to install additional drainage pipes, make repairs, and pay damages to LeBlanc in the amount of $4,000, and $2,000jointly to the Odoms and LeBlanc for attorney’s fees. Heidkamper appeals. |
| Summary of Opinion Analysis: | Heidkamper argues that the chancellor erred in granting injunctive relief due to conflicting testimony, the absence of imminent, irreparable harm, and the lack of necessary proof to meet the burden required to issue a mandatory injunction. The testimony of Deanna Odom and LeBlanc sharply conflicted with the testimony of Heidkamper’s expert witness, Ross Ulmer of the USDA Soil and Conservation Service who testified that Heidkamper’s pond actually benefitted the adjacent tracts. Although the testimony is sharply contradictory, the chancellor is afforded broad discretion when deciding which testimony to believe. The party requesting an injunction must show a threat of imminent harm, rather than mere fear or apprehension alone. It is not necessary to wait for the actual occurrence of the injury as an injunction is preventative in nature. Therefore, the court did not abuse its discretion in finding an injunction necessary based on the likelihood that the pond, in its present condition, would overflow causing further damage to the adjacent properties. Heidkamper also argues that the chancellor issued a mandatory injunction, and that the evidence presented failed to meet the required burden of proof for a mandatory injunction. A prohibitory injunction simply prohibits certain conduct, while a mandatory injunction requires an affirmative act or course of conduct. The burden of proof for a mandatory injunction requires the requesting party to show an imminent threat of irreparable harm for which there is no adequate remedy at law and should be granted only if reasonably practicable. The chancellor in this case not only prohibited certain conduct, but required affirmative acts to remedy the damage from the prohibited act, and as such he did in fact issue a prohibitory as well as a mandatory injunction. Ulmer’s testimony indicates that there is a threat of imminent harm to the Odom and LeBlanc properties, since he admitted that heavy rains could cause the dam to overflow. The chancellor held that there was no other remedy available at law to the Odoms and LeBlanc. The chancellor’s decision to require Heidkamper to install additional drainage pipes, and lower his pond by two feet, is not an unreasonably impracticable requirement to alleviate future flooding of Heidkamper’s pond. |
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