Ward v. Trimac Investments, LLC


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Docket Number: 2009-CA-02025-COA
Linked Case(s): 2009-CA-02025-COA ; 2009-CT-02025-SCT

Court of Appeals: Opinion Link
Opinion Date: 03-22-2011
Opinion Author: Myers, J.
Holding: Reversed and rendered.

Additional Case Information: Topic: Real property - Private road - Section 65-7-201 - Easement by necessity - Burden of proof
Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Non Participating Judge(s): Lee, C.J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 11-12-2009
Appealed from: Forrest County County Court
Judge: Michael McPhail
Disposition: Granted Trimac a Private Road over Appellants' Land
Case Number: C004-0894-E

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Janice Herrington Ward, William Lloyd Ward, Jr., Rita Collins, Deceased, and Linda Stennett




TERRY L. CAVES, FRANK D. MONTAGUE JR.



 
  • Appellant #1 Reply Brief

  • Appellee: Trimac Investments, LLC RICHARD ANTHONY FILCE  

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    Topic: Real property - Private road - Section 65-7-201 - Easement by necessity - Burden of proof

    Summary of the Facts: Trimac Investments, LLC owns an eighty-acre tract of land in Forrest County. The Trimac property is surrounded by land owned by others, and it has no direct access to a public road. Trimac brought suit to establish a private road over the properties of Janice Ward, William Ward, Rita Collins, and Linda Stennett. The county court awarded Trimac the private road it sought over the Wards’ properties. The Wards appeal.

    Summary of Opinion Analysis: Pursuant to section 65-7-201, a private road may be established on another’s property only where necessary for ingress and egress to a land-locked parcel. The petitioner carries the burden of proving the proposed private road is reasonably necessary. To show necessity, our law requires both a showing that the property has no access to the public road and that the party seeking the private road has attempted to secure a right of way by contract or grant. While Trimac did claim to have attempted to purchase a right-of-way from the Wards, it is undisputed that it made no effort to obtain one from the other surrounding landowners. The record shows that there were numerous other potential paths to a public road. Trimac apparently did not consider these potential alternatives because none had an existing road leading to its property. The record overwhelmingly supports the county court’s conclusion that the proposed road is the most reasonable access to the Trimac property. If Trimac had proven that a private road was necessary to access its property, and the only question before the county court was where that road should be located, this finding would not be disturbed. However, it is distinct from the issue of whether a private road is necessary in the first place. To show necessity, the party seeking a private road is required to show it has been unable to otherwise obtain a reasonable right-of-way from all of the surrounding property owners. Trimac did not meet this requirement. Trimac argues that its failure to seek alternative routes was an affirmative defense and that the Wards waived it by not raising it in their answer, but it cites to no relevant authority for that proposition. It is also plainly without merit: the showing of reasonable necessity is part of Trimac’s burden of proof. This case also presents the question of a potential easement over the Jarrell property. At trial, the Wards attempted to prove that Trimac had an easement by necessity over the Jarrell property, by showing that the Trimac property and the Jarrell property had been under common ownership in the past. Our precedent is clear that, if Trimac had an easement allowing it access to its property, the Trimac property is not landlocked and a statutory private road cannot be granted. Trimac contends that the Wards waived this issue by failing to prove the existence of the easement. It would not only be inequitable to allow Trimac to sit on its potential right to an easement, it is also contrary to established precedent. Again, the burden falls on Trimac to prove that its property is landlocked. This burden includes not only that an offer to purchase a right-of-way, but also a showing that there is no preexisting right to an easement by necessity.


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