Keener Properties, L.L.C. v. Wilson
| Docket Number: | 2004-CA-00613-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-13-2005 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Prescriptive easement - Underground utilities Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ., Non Participating Judge(s): Diaz, J., Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-18-2004 Appealed from: Claiborne County Chancery Court Judge: Kennie Middleton Disposition: chancery court found that the parties established a prescriptive easement over their property and that their due process rights were not violated Case Number: 2002-113 |
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| Party Name: | Attorney Name: | |||
| Appellant: | KEENER PROPERTIES, L.L.C. AND SARAH
ELIZABETH KEENER |
JEFFREY TODD WAYCASTER |
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| Appellee: | ROBERT B. WILSON, THE MAURICE G. WILSON TRUST AND ANDERSON-TULLY COMPANY | MELVIN HURLEY McFATTER |
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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 - Prescriptive easement - Underground utilities |
| Summary of the Facts: | Robert Wilson, The Maurice G. Wilson Trust and Anderson-Tully Company alleged that they had a prescriptive easement to ingress and egress along a road which crossed the property of Keener Properties LLC and Sarah Keener. Following a three-day trial and a view by the chancellor of the road and the property over which it passed, the chancery court held that Wilson and Anderson-Tully had established a right of ingress and egress over the Keener property along the road by prescriptive easement. The chancery court’s original Findings of Fact and Conclusions of Law did not specify whether the easement included the right to run underground utilities. Wilson and Anderson-Tully filed a Motion for Additional Findings of Fact and Conclusions of Law. The chancery court issued Additional Findings of Fact and Conclusions of Law establishing the width of the prescriptive easement and holding that the easement included the right to run underground utilities along the easement. Keener appeals. |
| Summary of Opinion Analysis: | Issue 1: Prescriptive easement Keener argues that Wilson and Anderson-Tully did not meet their burden of proof in establishing a prescriptive easement across Keener’s property in the absence of evidence that Wilson and Anderson-Tully or their predecessors in interest made “exclusive” use of the road. In order to establish a prescriptive easement the evidence must show that possession is under claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted for a period of ten years; exclusive; and peaceful. The distinction to be made when using the term “exclusive” as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public. Even if the road were deemed to be public, this would not hinder Wilson’s and Anderson-Tully’s right to a prescriptive easement if all requirements have been met. The record clearly provides evidence that Wilson and Anderson-Tully met all requirements in establishing a prescriptive easement. Issue 2: Underground utilities Keener argues that neither the complaint nor the amendment to the complaint filed by Wilson and Anderson-Tully made any mention of a claimed right to run utility lines along the road and that by failing to put him on notice that they were seeking the right to run utility lines along the subject road, Wilson and Anderson-Tully deprived Keener of an opportunity to raise potential defenses. Due to advances in technology, the right to run utilities is now considered reasonable and necessary for the enjoyment of a house or even a deer camp. Also, the running of underground utilities would not place any additional burdens on the servient estate, and Keener has run similar utilities over the Greenberg and Gage properties to his home and deer camp. Furthermore, at the conclusion of the testimony offered by Wilson, Keener did not seek a continuance to further develop and present evidence on the issue of utilities. Keener was given notice of the utilities issue and an opportunity to be heard; therefore, he did not suffer a violation of his due process rights. |
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