Hernando v. North MS Utility Co.


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Docket Number: 2002-CA-01707-COA
Linked Case(s): 2002-CT-01707-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-23-2004
Opinion Author: Griffis, J.
Holding: Reversed and remanded

Additional Case Information: Topic: Water service - Statute of frauds - Statute of limitations
Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Irving, Myers, Chandler, Barnes and Ishee, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 01-07-2002
Appealed from: DeSoto County Chancery Court
Judge: Melvin McClure, Jr.
Disposition: FINAL ORDER ENJOINED CITY OF HERNANDO FROM SERVING WATER TO CREEKSIDE SUBDIVISION
Case Number: 01-7-972

  Party Name: Attorney Name:  
Appellant: City of Hernando




KENNETH E. STOCKTON



 

Appellee: North Mississippi Utility Company, A Mississippi Corporation JAMES W. AMOS  

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Topic: Water service - Statute of frauds - Statute of limitations

Summary of the Facts: North Mississippi Utility Company filed a complaint to enjoin the City of Hernando from serving water within NMUC’s certificated area. The chancellor entered a judgment enjoining Hernando from serving water to Creekside Subdivision, ordering the City to pay NMUC any money paid for water service and connection fees paid within Creekside Subdivision, and allowing NMUC to collect any outstanding water tap fees. The City appeals.

Summary of Opinion Analysis: Issue 1: Statute of frauds The chancellor held that a 1966 agreement entered into between the Town of Hernando and Bright’s Water Association, Inc. does not comply with the statute of frauds in that it is only a copy and that copy is only signed by one party. The City argues this was error. The statute of frauds does not require every contract that relates to an interest in real property be in writing. The statute of frauds has no application to a covenant running with the land even though the covenant imposes a burden on the land. The 1966 agreement between Hernando and BWA was not for the sale or lease of land. At best, it may be said that the 1966 agreement imposed a burden on the land or granted some rights to supply water to the owners or occupants of the land. Nonetheless, the sale or lease of real property was not involved in the agreement. Therefore, the chancellor was clearly erroneous and applied an incorrect legal standard when he declared the 1966 agreement to be unenforceable due to the statute of frauds. In addition, the City proved the existence and contents of the 1966 agreement not only by parole evidence, but also through the official city minutes that were kept pursuant to section 21-15-17. Issue 2: Statute of limitations The City argues that the chancellor erred in not applying the three year statute of limitations. This issue was not properly addressed by the chancellor and is remanded for further consideration.


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