Daley v. Hughes
| Docket Number: | 2007-CA-00187-COA Linked Case(s): 2007-CT-00187-SCT ; 2007-CA-00187-COA ; 2007-CT-00187-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-05-2008 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Easement by necessity - Expert testimony - Reasonably necessary alternative 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 |
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| Trial Court: |
Date of Trial Judgment: 12-14-2006 Appealed from: Itawamba County Chancery Court Judge: Jaqueline Mask Disposition: EASEMENT AWARDED Case Number: 2004-0397-29-M |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | NELLA DALEY |
DUNCAN L. LOTT |
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| Appellee: | JIMMY HUGHES, DAN PATE, ANN HUGHES PATE, STEVEN IZARD, AND ERMA HUGHES IZARD | RHETT R. RUSSELL |
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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 - Easement by necessity - Expert testimony - Reasonably necessary alternative |
| Summary of the Facts: | Jimmy Hughes, Dan Pate, Ann Hughes Pate, Steven Izard, and Erma Hughes Izard filed suit to establish an easement across Nella Daley’s property to enable continued use of an old field road as a means to access the southern portions of their respective parcels. The chancellor granted them an implied easement by necessity, and Daley appeals. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony Daley argues that the court erred in admitting the testimony of a witness who was accepted as an expert in the area of bridge construction and testified that constructing a bridge across the creek would cost at least $10,000, because he had no experience in constructing bridges across private property. Daley’s refusal to stipulate to the witness being admitted as an expert on bridges traversing field roads was insufficient to preserve the issue for appeal. Daley made no contemporaneous objection and therefore waived her challenge to the admissibility of the testimony. Issue 2: Easement by necessity Daley argues that the chancellor erred in finding that the necessity for the easement arose at the time the property was initially divided by the common owners, and that the chancellor erred in finding that the cost of building a bridge involved disproportionate expense. To establish an easement by necessity, one must prove that the dominant and servient parcels were once under common ownership, severance by the common owner(s), the necessity for the easement arose at the time of the severance by the common owner(s), and the necessity is continuing. It is undisputed that all of the property at issue was once under common ownership. Further, the evidence establishes that the division of the property was accomplished in such a way that the southern portion of the parcel (now owned in separate parcels by the Appellees) was rendered accessible only by crossing the creek or using the old field road on the other parcel (now owned by Daley). Therefore, the necessity for the easement arose at the time the property was severed by its common owners. Where alternative routes exist, an implied easement by necessity will be granted if it is the only reasonably necessary alternative available. Reasonable necessity is judged by whether an alternative would involve disproportionate expense or inconvenience, or whether a substitute can be furnished by reasonable labor or expense. Here, there was no error in the chancellor’s finding that the easement was reasonably necessary because the Appellees only alternative route was by constructing a bridge across the creek at a cost of at least $10,000. |
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