Gaw v. Seldon


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Docket Number: 2011-CA-00197-COA
Court of Appeals: Opinion Link
Opinion Date: 03-27-2012
Opinion Author: Irving, P.J.
Holding: Affirmed in part, reversed and remanded in part
Additional Case Information: Topic: Real property - Encroachment on easement - Nuisance - Trespass - Nominal damages - Discovery - M.R.C.P. 37
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Carlton, Maxwell, Russell and Fair, JJ.
Non Participating Judge(s): Roberts, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY
Trial Court: Date of Trial Judgment: 11-17-2010
Appealed from: Marshall County Chancery Court
Judge: Edwin Hayes Roberts, Jr.
Disposition: NO DAMAGES AWARDED TO EITHER PARTY
Case Number: 2009-0705R
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Daniel A. Gaw




 JENNIFER LEE SHACKELFORD



  
  • Appellant #1 Brief
    		•
    Appellee: Davie Seldon  
    Synopsis provided by:

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    Topic: Real property - Encroachment on easement - Nuisance - Trespass - Nominal damages - Discovery - M.R.C.P. 37
    Summary of the Facts: Daniel A. Gaw owns a forty-foot easement over Davie Seldon’s property. Davie purchased the property in 2006, but he does not live on the property. Davie’s son, John Seldon, lives on the property. In 2009, John erected brick columns at the entrance to the property, which encroached upon Gaw’s easement. The same year, Gaw contacted the Marshall County Health Department to report the existence of waste water on his property. Following an inspection, the Health Department determined that the water was originating from the septic tank on Davie’s property. Gaw filed a complaint seeking the removal of the brick columns because they encroached upon his easement. Additionally, Gaw alleged that the waste water leaking from Davie’s septic tank onto his property constituted a trespass and a private nuisance. Davie filed a cross-complaint alleging that Gaw had interfered with his property while repairing the easement. The chancery court denied all of Gaw’s claims and Davie’s cross-claim. Gaw appeals.
    Summary of Opinion Analysis: Issue 1: Encroachment on easement Gaw argues that the chancery court erred in finding that John’s brick columns could remain standing even though they encroached upon his easement. Gaw contends that he is entitled to damages based on the encroachment. Where a private right of way exists, the owners of the dominant and servient tenements must each use the way in such a manner as not to interfere with one another’s utilization thereof. Furthermore, the grant of a right of way over land does not pass any other right or incident. The owner of the soil retains full dominion over his land subject merely to the right of way. He may make any use of his land which does not interfere with a reasonable use of the way. Here, the columns encroached upon Gaw’s forty-foot easement by nine and one-half feet. However, Gaw testified that the columns did not presently impede his ability to use the easement for ingress and egress to his property, which is the express purpose of the easement. While Gaw testified that he plans to build a barn and a house on the property in the future, and the columns might prevent large pieces of construction equipment from traveling along his easement, he admitted that he had not begun construction on either project. Consequently, the chancery court did not err in allowing the columns to remain until such time that Gaw could show that they interfered with his use of the easement. Issue 2: Nuisance Gaw argues that the chancery court erred in finding that the waste water that leaked from Davie’s septic tank onto Gaw’s property did not constitute a nuisance or a trespass. A private nuisance arises where a landowner uses his property in a manner that unreasonably annoys, inconveniences, or harms others. Liability for a private nuisance requires an invasion of another’s interest in the private use and enjoyment of land where that invasion is either intentional and unreasonable, or unintentional but otherwise provides the basis for a cause of action for negligent or reckless conduct or for abnormally dangerous conditions or activities. A person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case, and he is subject to liability for an unintentional invasion when his conduct is negligent, reckless, or abnormally dangerous. Based on the extent of the leak and on John’s septic-tank expertise, the Seldons were negligent for allowing waste water to flow on to Gaw’s property. Therefore, the chancery court erred in failing to find that the waste water constituted a nuisance. Although Gaw provided no proof of actual damages suffered as a result of the waste water, he is entitled to nominal damages. Thus, Gaw is awarded nominal damages of $10. Issue 3: Discovery Gaw argues that the chancellor erred in admitting evidence at the hearing that was not produced in discovery. Under the Mississippi Rules of Civil Procedure, failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery. After such an order to compel has been granted under M.R.C.P. 37(a)(2), and the party ordered to answer fails to respond, then the remedy may be sanctions in accordance with Rule 37(b), which include the exclusion of evidence not disclosed in discovery. Gaw propounded discovery on Davie in the form of interrogatories and requests for production of documents on February 23, 2010. However, there is no evidence that he filed a motion to compel with the court when Davie failed to respond. Because Gaw failed to file a motion to compel and refused the chancery court’s offer to continue the case, the court did not abuse its discretion in admitting certain evidence not produced in discovery.


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