Pecanty v. Miss. Southern Bank
| Docket Number: | 2008-CA-01886-COA Linked Case(s): 2008-CA-01886-COA ; 2008-CT-01886-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-11-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Property damage - Loss of lateral support - Liability of predecessor in title Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 10-30-2008 Appealed from: WARREN COUNTY CHANCERY COURT Judge: Jane R. Weathersby Disposition: GRANTED SUMMARY JUDGMENT FOR THE APPELLEES Case Number: 2006-408GN |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Jane Pecanty |
MARK W. PREWITT |
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| Appellee: | Mississippi Southern Bank as Merged with State Bank & Trust Company of Cleveland, Mississippi, Mississippi Banking Institutions, Jimmy D. Tarver and Sheila M. Tarver | REBECCA B. COWAN, KENNETH B. RECTOR, JAMES RANDOLPH SHERARD, ALLISON MCDONALD BREWER, JOSEPH WALTER GILL |
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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: | Property damage - Loss of lateral support - Liability of predecessor in title |
| Summary of the Facts: | Jane Pecanty filed a complaint in chancery court seeking an injunction and damages against VFW Post 1034, Inc. and Mississippi Southern Bank, as merged with State Bank and Trust Company of Cleveland, Mississippi. Pecanty alleged that VFW, after having purchased the property adjacent to hers in 2000, “undertook to make improvements on its property which included altering the landscape by dirt work and grading a hillside to such an extent and degree so as to alter the natural flow of run-off water between the two properties.” Pecanty further alleged that the alteration of the natural flow of water has caused and continues to cause serious erosion and sloughing of her property. She requested the chancery court to compel VFW and the Banks, jointly and severally, to erect such permanent retaining walls, barriers, or other structures necessary to prevent any further washing and/or erosion to her property. She further requested that she be awarded monetary damages entitled for the restoration and reclamation of her real property. The Banks filed a motion for summary judgment. The Banks were granted a judgment as a matter of law and were dismissed, with prejudice, as defendants in the case. By order of the chancery court, the Tarvers, the then title owners of the property previously owned by VFW, were joined as defendants in Pecanty’s suit against VFW. Subsequently, the chancery court granted the Tarvers’ ore tenus motion for summary judgment. The chancery court found that VFW executed an agreement with Pecanty to restore her property for the damage it had caused with its excavation, but it did “nothing to rectify” the damages incurred therefrom. Accordingly, the chancery court entered a judgment in favor of Pecanty and awarded her monetary damages. Pecanty appeals the court’s grant of summary judgment to the Banks and the Tarvers. |
| Summary of Opinion Analysis: | Pecanty argues that while VFW was the party responsible for the excavation that caused the removal of her property’s lateral support and failed to perform its contract, the Banks and the Tarvers, as subsequent title holders, neglected their respective duties to maintain their property and that the damages to her property are the result of separate acts which constitute a continuing tort. At issue in this case is the undisputable loss of lateral support to land in its natural state, with no statute or building code that controls. Under common law traditions, adjoining landowners have a natural right to the lateral support of each other’s ground; this principle applies only to land in its natural state; the duty to provide lateral support is ongoing, and one of continued support running against the servient land. The duty does not preclude a landowner from excavating upon his or her land, but the excavating landowner must excavate in such manner that his or her neighbor’s land will not, by its own weight or through the action of the elements, fall into the excavation, and may be required to replace by artificial means the natural support removed by excavation. Where a landowner has withdrawn lateral support from adjacent property, he or she remains liable notwithstanding the subsequent transfer of his or her land to a third person. On the other hand, there is authority that a current landowner may be held liable to an adjoining landowner for damage caused by an excavation made by a predecessor in title, where the predecessor in title took appropriate steps to preserve the lateral support by building a retaining wall which the current owner allowed to fall into disrepair. It is abundantly clear that VFW was the sole party at fault in this case. Neither the Banks nor the Tarvers were responsible for removing the lateral support from Pecanty’s land, nor were they responsible for constructing the retaining wall which–as Pecanty, herself, admitted–has, at all times, failed to fulfill its purpose. There is no affirmative indication that either subsequent landowner had any reason to suspect–prior to Pecanty’s complaint in chancery court–that a problem existed with Pecanty’s property, much less a dangerous condition. Despite its defective utility, the retaining wall, according to the evidence, for all intents and purposes is a sturdy structure. Since there is no liability on the part of either the Banks or the Tarvers, it is unnecessary to address Pecanty’s theory with regard to continuing torts and/or latent injuries. |
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