Paw Paw Island Land Co. v. Issaquena & Warren Counties Land Co.
| Docket Number: | 2008-CA-01632-SCT Linked Case(s): 2008-CA-01632-SCT ; 2008-CA-01632-SCT ; 2008-CA-01632-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-10-2010 Opinion Author: Randolph, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Prescriptive easement - Jurisdiction - Section 11-51-75 - Private road Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 09-12-2008 Appealed from: WARREN COUNTY CHANCERY COURT Judge: Vicki Barnes Disposition: The chancellor entered a final judgment denying a prescriptive easement in favor of PPILC and determined that the disputed portion of the road was private. Case Number: 2003-179GN |
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| Party Name: | Attorney Name: | |||
| Appellant: | Paw Paw Island Land Co., Inc., and Warren County, Mississippi |
LYNN P. LADNER, JOHN L. LOW, IV, WILLIAM C. SMITH, III, R. E. PARKER, JR., CLIFFORD C. WHITNEY, III, KENNETH B. RECTOR |
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| Appellee: | Issaquena and Warren Counties Land Co., LLC | LISA ANDERSON REPPETO, MARK D. HERBERT |
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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 - Jurisdiction - Section 11-51-75 - Private road |
| Summary of the Facts: | Issaquena and Warren Counties Land Company owns land on both sides of the Mississippi River levee, the land over which the road is situated, and a small portion of Paw Paw Island. The Board of Mississippi Levee Commissioners owns the levee, and also leases some land to IWCLC. The road begins at Highway 465, also called Eagle Lake Road. The first segment (0.13 miles) runs west from the highway to a gate southwest of the levee. It is a public road without dispute. The road continues west and south (0.47 miles) over IWCLC land to the low-water bridge at Paw Paw Chute. IWCLC bought the property in 2002 from ATCO, a timber company, which had owned the property since 1928. ATCO leased hunting and fishing rights to Big Rack Hunting Club and Oak Ridge Hunting Club. Paw Paw Island Land Company now owns nearly all of the island, having bought it from another timber company, Crown Zellerbach, in 1995. CZ leased hunting and fishing rights to Paw Paw Island Hunting Club beginning in 1969. CZ terminated the lease on January 20, 1994. In 1994-95, CZ cut timber and hunted on the island, but PPIHC did not hunt on the island. Prior to CZ’s purchase of the island in January 1969, it was owned by Jack Wyly, a Louisiana resident, and Alluvial Lands Company, Ltd., a Louisiana corporation. PPILC alleged in its complaint that it possessed a prescriptive easement created by its predecessors in title, beginning in 1934 and completed by 1944. Tim Evans, an ATCO administrator, testified that hunting had occurred on the island since 1934 and that hunters had used the road to get to the island since that time. He testified that PPIHC later built a boat ramp on ATCO’s property. He knew of no permission sought from or granted by ATCO, contrary to the testimony of some hunting-club members. Earnest Wright testified that he first hunted in the area in 1953 along with his father, a PPIHC member, and that there was a gate east of the levee at that time. Wright testified that PPIHC had a clubhouse on the island in 1953, but that no buildings existed on ATCO’s property. He stated that PPIHC built and maintained the bridge. Wright recalled nine other members of the club who used the boat ramp to reach the island. Bobby Herrington testified that he hunted on the island as a member of PPIHC, beginning in 1963. He recalled that his father was president of PPIHC in the mid-sixties when electrical service was provided to the island via power lines along the road. He recalled the club’s efforts to improve the bridge. Robert Reeder, a former PPIHC member, testified that he hunted on the island beginning in 1963 along with his father and grandfather, both also PPIHC members. He recalled using the boat ramp when it was dirt, then gravel and later, concrete. He testified about improvements made to the bridge, road, and culverts. E.C. Burkhardt, an ATCO forester, testified that he visited the island in 1965 and that it was being used for hunting at that time and that PPIHC had a clubhouse there. Although ATCO had hunting lessees, Oak Ridge and Big Rack hunting clubs, no clubhouse was built on ATCO property until 1968. That same year, the gate east of the levee was moved west of the levee, to a point where the current gate is located. Moving the gate was a joint project of Big Rack and PPIHC. The current levee maintenance contract between the levee board and IWCLC prohibits any gates obstructing public access to the levee and the road atop the levee. David McDonald, a Big Rack member who is now a county supervisor, testified that he took part in the gate project and that it was done to prevent vandalism by trespassers. The gate was secured by a chain with multiple padlocks on it. Unlocking any one of the padlocks released the chain. Earnest Wright testified that ATCO, Big Rack, and PPIHC each had a lock on the gate. No testimony was adduced that Wyly and/or Alluvial had a lock on this gate or the prior gates. CZ bought the island in 1969. CZ and PPIHC improved the road and bridge. CZ and PPIHC also improved the boat launch and parking area. Evidence was offered that, during the time the two properties were owned by timber companies, usage of the lands was governed by the timber-industry custom of neighborly courtesy. Evans testified that both companies crossed the property of the other without any formal agreement and that each maintained the road as necessary to “move wood.” In 1994, CZ terminated PPIHC’s hunting lease. PPIHC’s members removed club and personal property from the island. In 1995, CZ sold the island to PPILC, a new corporation, whose shareholders included some of the former members of PPIHC. After the sale, PPILC continued to discuss an easement with ATCO, but no easement agreement was reached. Martin Lewis, an executive vice-president of ATCO, testified that he offered PPILC a one-year easement in 1996, but that PPILC refused, claiming for the first time it had a prescriptive easement. As the new owner of the island after July 1995, PPILC continued to maintain portions of the road and to make other improvements. In 2002 IWCLC bought ATCO’s property. PPILC negotiated with Marty Elrod, an IWCLC officer and a PPILC shareholder, to obtain a written easement. PPILC also offered to buy the road, parking area, and boat ramp, but no agreement was reached. Prior to the sale, IWCLC had the property surveyed to determine the boundaries and to lay out plats for fifteen home sites. The surveyor recommended relocation of a segment of the road to allow for home sites along Paw Paw Chute. IWCLC replaced the gate southwest of the levee with a new gate in the same location. In 2003, IWCLC informed PPILC by letter that the parking area, boat ramp, and a small segment of the road would have to be relocated to make room for the homes to be built along Paw Paw Chute. PPILC then filed this action in chancery court. In 1988, Warren County converted from the beat system to the county-unit system of road maintenance. In June 2000, the Board carried out the statutorily required functions of preparing and adopting an official map designating and delineating all public roads on the county road system and a county road system register. A map dated June 2000 shows the road as public for only the first 0.13 miles, beginning at the highway. The road register adopted by the Board on June 19, 2000, indicates that the road is public for 0.13 miles from “HWY 465” to “END OF COUNTY MAINTENANCE.” In July 2005, while the PPILC-IWCLC trial was ongoing, PPILC sought intervention by the Board. By that time, IWCLC had installed an additional gate, requiring PPILC to use the new segment of the road, which exhibits indicate is closer to the bridge accessing the island. PPILC wrote the Board a letter requesting that it order IWCLC to remove the gates, allow public access to the old road, and cease construction of houses on IWCLC’s own land. The Board attorney sent IWCLC a letter ordering it to remove the gates, allow public access, and cease construction. IWCLC filed in chancery court a complaint for declaratory and injunctive relief. The county filed an answer and counter-claim, and did not raise jurisdiction as an issue. The chancellor consolidated the cases without objection in October 2005. In October 2007, the county first filed a motion to dismiss for lack of subject-matter jurisdiction. In 2008, the chancellor entered a judgment finding jurisdiction of the chancery court was proper, as IWCLC’s complaint was in response to the Board’s letter and not a Board judgment; Paw Paw Road is public for the first 0.13 miles and private thereafter; PPILC failed to prove a prescriptive easement; and the levee board was not an indispensable party. PPILC, IWCLC, and the Board appeal. |
| Summary of Opinion Analysis: | Issue 1: Prescriptive easement To establish a prescriptive easement, the use must be open, notorious, and visible; hostile; under claim of ownership; exclusive; peaceful; and continuous and uninterrupted for ten years. Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking. The chancellor found that PPILC had failed to prove three elements: hostile, under claim of ownership, and exclusive. The chancellor erred on exclusivity. However, there was no error by the chancellor in decreeing that evidence was lacking to prove, by clear and convincing evidence, the hostility and claim-of-ownership elements. ATCO, a timber company, used its land for timber-farming operations. The record is silent that Wyly and/or Alluvial used the road. Absent proof that the titled owner of the putative dominant estate used the road, it is axiomatic that adverse use cannot be proven. Absent adverse use, the hostile element cannot be satisfied. In determining that evidence was lacking that Wyly or Alluvial had claimed ownership of a right to use the road, the chancellor was correct. Nothing in the record shows that Wyly and Alluvial ever used the road, much less claimed ownership of a right to use the road. The record is replete that PPILC’s immediate predecessor in title, CZ, used the road without a claim of ownership, following industry standards of neighborly courtesy. Issue 2: Jurisdiction Suits involving claimed easements, public-versus-private-road disputes, removal of gates and locks, and injunctive relief to remove obstructions, inter alia, have been tried in both circuit and chancery courts, predominantly chancery. The Board relies exclusively on section 11-51-75, which requires “[a]ny person aggrieved by a judgment or decision of the board of supervisors” to appeal within ten days to circuit court using a bill of exceptions. Application of this section presupposes the judgment or decision challenged was rendered by an official act of the Board, duly recorded in its minutes. The chancellor found that the Board’s letter to IWCLC was sent before the Board lawfully authorized such action. Official acts of a board are voidable only if found to be arbitrary or capricious. A board’s minutes are evidence of its actions. There being no minutes in the record other than those of the August 1, 2005, meeting, the chancellor found that the Board’s letter was not precipitated by a judgment or decision of the Board. Since section 11-51-75 does not apply, the chancellor properly exercised jurisdiction. Issue 3: Private road The county argues that 0.6 miles of Paw Paw Road became public solely by the Board’s inclusion of the road on the county road map in 1988. The facts indicate that this assertion is not correct. The road was gated at that time (as depicted on the map), and all witnesses testified it had been gated for decades and has continued to be ever since. No evidence was presented of public maintenance inside the gate for at least the last thirty years, and only sporadically before that. The county now claims for the first time in its reply brief that it holds a prescriptive easement over the road. It is improper to raise new arguments in a reply brief. There was no error by the chancellor, either factually or legally, in finding that the road west of the gate is private and that the county never had title to the road. |
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