Fratesi v. City of Indianola


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Docket Number: 2006-CA-01977-COA
Oral Argument: 09-26-2007
 

 

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Court of Appeals: Opinion Link
Opinion Date: 01-08-2008
Opinion Author: CARLTON, J.
Holding: Affirmed in Part, Reversed and Remanded in Part

Additional Case Information: Topic: Real property - Permanent injunction - Prescriptive easement - Damages
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 10-31-2006
Appealed from: SUNFLOWER COUNTY CHANCERY COURT
Judge: Marie Wilson
Disposition: JUDGMENT FOR CITY OF INDIANOLA. The court found that the City had a prescriptive easement over Faisonia Avenue and the drainage ditch. The court found that the ditch was, in fact, widened and that Fratesi will no longer be able to access Faisonia Avenue.
Case Number: 2005-0119

  Party Name: Attorney Name:  
Appellant: PAUL FRATESI




NATHAN P. ADAMS



 

Appellee: CITY OF INDIANOLA, MISSISSIPPI, A MUNICIPAL CORPORATION GEORGE ELLIS ABDO  

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Topic: Real property - Permanent injunction - Prescriptive easement - Damages

Summary of the Facts: Paul Fratesi owns 120 acres of land abutting the western side of Faisonia Avenue in Indianola. The City of Indianola, without the knowledge or consent of Fratesi, began a project to improve the drainage ditches on both sides of Faisonia Avenue. At the time the City began the project, the subject property was being leased to Gary Fratesi, Paul’s son, for farming. On the day the project began, Gary went to the worksite and requested that the excavated dirt be deposited on the subject land. Later that day, Fratesi went to the work site and advised the workers that the project must stop. As a result of the work already performed by the City, the ditch had been widened a few feet. Fratesi filed suit alleging that the City trespassed on his property by commencing the project without his permission, that the project widened the ditch and thus constituted a taking of his property for which he was entitled to just compensation, and that Fratesi was entitled to injunctive relief. The court found in favor of the City, and Fratesi appeals.

Summary of Opinion Analysis: Issue 1: Permanent injunction Fratesi argues that the court erred in not granting a permanent injunction restraining further construction and directing the City to restore the ditch to its original condition. Since Fratesi fails to cite any authority to support this claim, the issue is barred from consideration. In addition, Fratesi was not entitled to injunctive relief because he had an adequate remedy at law. Given the public purpose of the City’s project, Fratesi would be entitled to just compensation, if and to the extent that the project constituted a taking. Issue 2: Prescriptive easement Fratesi argues that the City failed to prove that it had acquired a prescriptive easement over his property. To prove an easement by prescription, one must show that the use is open, notorious, and visible; hostile; under claim of ownership; exclusive; peaceful; and continuous and uninterrupted for ten years. Fratesi presented no evidence regarding permissive use, interruption, nor any other theory which would negate the City’s claim of prescriptive easement. However, the trial court’s findings failed to consider an easement holder’s right to maintain its easement without causing an undue burden on the servient owner’s estate. A new trial is warranted for such a determination. Issue 3: Damages Fratesi argues that the widening of the ditch constituted a taking for which he is entitled to damages. Although the record is unclear as to exactly how much the ditch was widened, it was undisputed at trial that the ditch had been widened. However, the trial judge failed to acknowledge that a portion of Fratesi’s land, albeit small, was taken by virtue of the ditch being widened. Due compensation has two components: the value of the property taken and the damage, if any, to the remainder. Therefore, if, on remand, the chancellor finds that the City exceeded the scope of its easement by widening the ditch, Fratesi will at least be entitled to damages for the physical occupation of his property, even if the chancellor finds no damages to the remainder. Fratesi also argues that the trial court erred in not awarding damages for mental distress caused by the actions of the City and its employees in connection with the project. In order to recover on a claim for mental distress, a plaintiff must always prove that the emotional distress was a reasonably foreseeable result of the defendant’s conduct. Any emotional injuries suffered by Fratesi cannot be considered a reasonably foreseeable result of the City’s actions in widening a ditch on his property.


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