Swan v. Hill
| Docket Number: | 2002-CA-00621-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-15-2003 Opinion Author: Chandler, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Real property - Jurisdiction - Section 9-9-21(1) - Easement by necessity - Easement by prescription Judge(s) Concurring: King, P.J., Bridges, Thomas, Lee, Irving and Myers, JJ. Judge(s) Concurring Separately: Southwick, P.J. Votes: McMillin, C.J. and Griffis, J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-11-2002 Appealed from: Warren Coounty Chancery Court Judge: Vicki Barnes Disposition: CHANCELLOR GRANTED AN EASEMENT OF NECESSITY Case Number: 01-139GN |
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| Party Name: | Attorney Name: | |||
| Appellant: | Earl Harvel Swan, Jr. d/b/a Big Buck's B-B-Q Smokehouse, Inc. |
EVERETTE VERHINE |
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| Appellee: | Jack Hill d/b/a Kar Kleen | KENNETH M. HARPER WES W. PETERS |
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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 - Jurisdiction - Section 9-9-21(1) - Easement by necessity - Easement by prescription |
| Summary of the Facts: | Jack Hill filed a complaint in county court requesting an easement across property owned by Earl Swan, Jr. The court granted Hill an easement by necessity and the jury awarded $6,000 in compensatory damages and $4,000 in punitive damages. The chancery court affirmed, and Swan appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Swan argues that the county court lacked jurisdiction to enter an injunction. A recent case held that, pursuant to section 9-9-21(1), a claim for specific performance of a contract of employment plus attendant injunctive relief is well within the jurisdiction of the county court on its equity. In addition, two cases have indicated that a county court has jurisdiction to rule on acts of replevin. Therefore, the injunctive order granted by the county court judge was within the meaning of the statute. Issue 2: Easement by necessity Swan argues that the court erred in granting Hill an easement by necessity. An easement by necessity may be created by proving only reasonable necessity rather than absolute physical necessity. The concern of the court is only whether alternative routes exist. In determining what is reasonably necessary, the court looks to whether an alternative would involve disproportionate expense and inconvenience. If the land would be useless and valueless without the easement then the landowner is entitled to an easement. The record shows that accessing Hill's property through Swan's property is not the only reasonably necessary alternative. Hill provided no estimate of the cost of remodeling his carwash or of the worth of his business. Due to Hill's failure to establish a disproportionate expense in using the alternate routes available to him, he failed to prove that he was entitled to an easement by necessity. Issue 3: Easement by prescription Hill argues that he obtained a prescriptive easement because of the period of time he had been using the parking lot. Prescription is shown by use which is open, notorious and visible; hostile; under a claim of ownership; exclusive; peaceful; and continuous and uninterrupted for ten years. The period of time does not begin to run until some form of objection to the use is made by the landowner. Here, Swan did not make an objection until January 2000 when he began to remodel the property. |
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