Kennedy v. Anderson
| Docket Number: | 2003-CA-01112-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-24-2004 Opinion Author: Myers, J. Holding: Affirmed in part; Reversed and Rendered in part |
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| Additional Case Information: |
Topic: Real property - Descriptive access easement - Standing - Repair of easement - Dominant possession - Damages - Attorney's fees - Dismissal of counterclaim with prejudice Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, 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: 05-12-2003 Appealed from: Lee County Chancery Court Judge: Talmadge Littlejohn Disposition: ANDERSON AWARDED AN ACCESS EASEMENT ACROSS THE KENNEDYS PROPERTY. Case Number: 02-0527 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Ike Kennedy and Edith Kennedy |
RHETT R. RUSSELL |
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| Appellee: | Fred Anderson | GARY L. CARNATHAN |
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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 - Descriptive access easement - Standing - Repair of easement - Dominant possession - Damages - Attorney's fees - Dismissal of counterclaim with prejudice |
| Summary of the Facts: | The dominant estate owner (Anderson) brought suit complaining that the servient estate owners (The Kennedys) prevented him from using an express access easement. The Kennedys filed a counterclaim alleging that Anderson’s use of the easement damaged their property. The Kennedys’ motion to dismiss was denied and the chancellor dismissed their counterclaim with prejudice. The chancellor also found that neither party was damaged and enjoined each party from interfering with the rights of the other. The chancellor found that a descriptive access easement was established as to Anderson and assessed the Kennedys $1,000 in attorney fees. The Kennedys appeal. |
| Summary of Opinion Analysis: | Issue 1: Standing The Kennedys argue that Anderson failed to prove that he was the record owner of title to the easement at issue and therefore has no standing to litigate this matter. They argue that the wife of the former owner of the Anderson property conveyed the property without being a judicially determined heir and that the later conveyance to Anderson is invalid. Since the Kennedys are not claiming an interest in the Anderson property and not claiming to be heirs of the former owner, there is no requirement that the former owner's wife be judicially determined as the sole heir. Anderson is the record owner of title to the property. Included in that bundle of rights is the descriptive access easement over the Kennedys’ property. As a result, Anderson has standing in this civil action. Issue 2: Repair of easement The Kennedys argue that Anderson never exerted any effort whatsoever to fulfill his burden of maintenance and repair. The owner of the dominant estate is entitled to work on the easement at his own expense so as to keep it reasonably usable as a road. Here, the chancellor did recognize that Anderson had the burden of repairing and maintaining the easement. The chancellor properly found that Anderson had not completed any repair work on the easement, because the Kennedys prevented Anderson’s attempts to carry out his duty. Issue 3: Dominant possession The Kennedys argue that Anderson, his family, and friends repeatedly parked vehicles up and down the easement in an attempt to take dominant control of their property. The owner of the dominant estate is authorized to make any use of the servient estate that is reasonably necessary to achieve the intended purpose of the easement. The chancellor correctly determined that once the easement became open and passable, there would be no further need to park vehicles on the easement itself. Issue 4: Damages The Kennedys argue that they are entitled to damages n the amount of $50,000 for the loss of their right to full enjoyment of the property, the loss of dominant possession of their property, damage to their fence, damage to the easement itself, along with pain and suffering. Damages are not recoverable where it is impossible to say what portion of the damages resulted from the fault of the plaintiff and what portion from the fault of the defendant. Here, the evidence was insufficient to determine damages. Issue 5: Attorney's fees The Kennedys argue that the chancellor erred in assessing attorney fees against them especially in light of the fact that neither party was awarded damages. Unless there is a contractual provision or statutory authority providing for attorney fees, they may not be awarded as damages unless punitive damages are also proper. Since there is no evidence of either a contractual provision or a statute authorizing attorney fees nor an award of punitive damages, the chancellor’s finding on this point is reversed. Issue 6: Dismissal of counterclaim The Kennedys argue that the dismissal of their counterclaim with prejudice effectively bars them from bringing any future claims against Anderson. Generally, a dismissal with prejudice connotes an adjudication on the merits which is a final disposition that bars the right to bring or maintain an action on the same claim or cause. Although the Kennedys cannot attempt to re-litigate the same facts and issues present in this case, this is no way impedes the Kennedys’ right to bring suit against Anderson for any future behavior that may give rise to a cause of action concerning the easement. |
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