City of Waynesboror v. McMichael
| Docket Number: | 2001-CA-01426-COA Linked Case(s): 2001-CA-01426-COA ; 2001-CT-01426-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-08-2003 Opinion Author: Lee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Boundary line - Adverse possession - Attorney’s fees - M.R.C.P. 65(c) Judge(s) Concurring: Bridges, Thomas, Myers and Griffis, JJ. Dissenting Author : Southwick, P.J. Dissent Joined By : McMillin, C.J., King, P.J., Irving and Chandler, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 05-17-2001 Appealed from: Wayne County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: APPELLEES WERE AWARDED A JUDGMENT IN THE AMOUNT OF $18,557.73 PLUS INTEREST FOR ATTORNEY'S FEES, SURVEY EXPENSES, APPRAISAL FEES, AND PROPERTY DAMAGE RESULTING FROM THE APPELLANT'S TAKING OF APPELLEES' PROPERTY. TITLE TO THE PROPERTY WAS CONFIRMED IN THE APPELLANT. Case Number: 96-0080 |
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| Party Name: | Attorney Name: | |||
| Appellant: | City of Waynesboro, Mississippi |
JOHN RAY GUNN
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| Appellee: | Robert M. McMichael and Pauline McMichael | TERRY L. CAVES |
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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: | Real property - Boundary line - Adverse possession - Attorney’s fees - M.R.C.P. 65(c) |
| Summary of the Facts: | Steve Morris and the City of Waynesboro filed a joint application for a temporary restraining order and preliminary injunction, seeking to remove a fence which Robert and Pauline McMichael had erected from across Katherine Street. The court granted the application for temporary restraining order, and the parties signed an agreed order granting preliminary injunction, agreeing that the street would remain open until the matter was tried on the merits. In an amended application for preliminary injunction and complaint, the City asked the court to issue a preliminary injunction prohibiting the McMichaels from impeding, blocking, or interfering with the City's ownership and use of Katherine Street, to cancel clouds on title to all lands depicted as Katherine Street on the plat of Hudson Park Subdivision, to find that the City had legal title to the lands known as Katherine Street by virtue of statutory dedication by grant and/or common law dedication based on adverse possession and usage, to confirm title to Katherine Street in the City, and to find that Morris was entitled to an easement over and across Katherine Street under the doctrine of equitable estoppel. The McMichaels filed a counterclaim asserting ownership of a portion of Katherine Street and requesting the court to set the land line and to quiet and confirm title or, in the alternative, to confirm title due to abandonment and non-use by the City. The chancellor established the boundary line and found that Morris would be landlocked per the boundary and awarded attorney's fees, survey costs, expert witness fees and appraisal fees to the McMichaels. The court granted the McMichaels’ motion to alter or amend final judgment and confirmed title to the land in the McMichaels. The City appeals. |
| Summary of Opinion Analysis: | Issue 1: Boundary line The City argues that the court erred in adjudicating the boundary line, resulting in the McMichaels's owning fee simple title to a portion of the disputed roadway known as Katherine Street. A call for natural or artificial monuments will prevail over courses and distances in discrepancies in deeds. Because no natural or artificial monuments are referenced in the deed in this case, the City's argument that an old fence line is the proper boundary does not prevail over the specific metes and bounds language set forth in the deed itself. The City also argues that it acquired title to Katherine Street via adverse possession. To prove entitlement to land via adverse possession, the property must be under claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted for ten years; exclusive; and peaceful. The only evidence the City presented concerning activity on the property was that the City bushhogged the area once or twice during a thirty-five year period. The City made no improvements to the road nor erected any signs or repaired the fence, and any use by the City was sporadic at best, failing to meet the exclusive element of the adverse possession test. Issue 2: Attorney’s fees and damages The City argues that since the preliminary injunction was an agreed order approved by the parties, the award of damages was improper, since the injunction was merely incidental to the greater dispute of the boundary line. Where the prayer for injunction is ancillary to the main relief sought and the entire case is heard finally, and not separately on any preliminary motion to dissolve, attorneys fees are not proper. Where the entire relief sought is controlled by the injunction, however, attorneys fees are allowable. Ownership of the land was not the issue in this case. Rather, the issue is the City's acquiring the injunction to prevent the McMichaels from using what was clearly and unambiguously their own land. Therefore, attorney's fees were reasonably awarded to the McMichaels. M.R.C.P. 65(c) allows attorney’s fees to be awarded where a party has been wrongfully enjoined or restrained. Because of the City's actions in essentially restraining or taking the McMichaels's property without due compensation, the court properly awarded attorney’s fees. |
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