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JANUARY 16, 1985





This appeal involves the relative rights of two landowners to a private power line that originates in Louisiana, crosses Palmyra Lake, a former bed of the Mississippi River, and stretches across two tracts of land owned by the parties on Davis Island, a remote part of Warren County, Mississippi, on the Louisiana side of the Mississippi River. *fn1 Fourth Davis Island Land Co. (Fourth Davis) owns the tract where the power line terminates, which is used as a private hunting reserve. Ernest and Bobby Parker, farmers and cattlemen, own the intervening land across which the power line stretches to reach the Fourth Davis tract.

 The Chancery Court of Warren County denied Fourth Davis' request for an injunction to prohibit the Parkers from interfering with Fourth Davis' maintenance of the power line on the Parker property and its plans to string a second power line on the poles across the Parker property in order to separate the electrical service. The chancellor ruled that Fourth Davis was not entitled to an implied easement where the power line crosses the Parker property, but held that Fourth Davis had the right to receive electricity through the power line, when available. The chancellor awarded Fourth Davis a judgment of $2,826.05, representing the sum the Parkers owed Fourth Davis for electricity, minus the sum Fourth Davis owed the Parkers in maintenance and repair costs.

 Fourth Davis appeals the chancellor's refusal to judicially imply the grant of an easement where the power line crosses the Parker land. The Parkers appeal the chancellor's ruling that Fourth Davis has a right to receive electricity through the power line and the award of money damages.


 A. Background

 In 1961, when the power line at issue was built, R. Lee Parker, Jr. owned as one tract what are now the Fourth Davis and Parker lands. His sons, Ernest and R. Lee, III, constructed the power line in two stages, first to the present Parker dwelling, then to a hunting camp located at the present Fourth Davis complex. In 1963, R. Lee Parker, Jr. died, leaving to each son an undivided one-half interest in the property, which they continued to manage jointly. In 1965, R. Lee Parker, III, died, leaving his undivided 1/2 interest to his wife, Mrs. Winnie Kelly Parker and daughter, Mrs. Patsy Parker Reaver.

 In March, 1966, the co-tenants executed a partition deed whereby Ernest Parker received tract 1 (north-west portion) and Mrs. Parker and Mrs. Reaver received tract 2 (southeast portion). The deed granted a right-of-way easement to both parties to a road which loops through both tracts. The deed contains the following reciprocal clause:

 There is further transferred, conveyed, assigned and delivered unto the said Ernest

 B. Parker by the said Mrs. Winnie Kelly Parker and the said Mrs. Patsy Parker Reaver all rights and causes of action that do now exist, or that may have heretofore accrued in favor of the said Winnie Kelly Parker or the said Patsy Parker Reaver, which grew out of, or did come into existence as a result of, the ownership of their undivided interest or the interest of their predecessors in title, in the aforesaid land northwest of the said division land.

 The deed contains no reference to the power line running through what was now two separate tracts of land.

 In October, 1966, C & S Cattle Co. entered into an agricultural and grazing lease with the owners of tracts 1 and 2. Under the lease, C & S Cattle agreed to pay all utility bills including electricity used by the lessors. C & S Cattle Co. exercised an option to extend the lease until the end of 1976.

 In October, 1971, Mrs. Winnie Parker and Mrs. Reaver sold and conveyed tract 2 to Fourth Davis for one million dollars. The deed conveyed title to the property together with all rights, servitudes, and rights-of-way which Mrs. Parker and Mrs. Reaver acquired or retained under the 1966 partition deed. The 1971 deed expressly included as part of the freehold all timber, buildings, and power lines on the land conveyed thereby.

 In March, 1972, Fourth Davis terminated through negotiations the agricultural and grazing lease held by C & S Cattle as to tract 2. Fourth Davis agreed to assume C & S Cattle's obligation to pay for electricity through 1976 as part consideration for cancelling the lease. Fourth Davis has continued to pay for all electricity, including power consumed by the Parkers, since the expiration of the lease.

 B. Negotiations

 In 1974, Ernest Parker proposed to extend permission to Fourth Davis to maintain and operate the power line across his land upon certain conditions. Fourth Davis agreed to maintain an insurance policy indemnifying Parker for any property damage or personal injury resulting from the presence of the line or Fourth

 Davis' maintenance of the line. Fourth Davis refused to agree that its authority to maintain the line would expire at the end of 1976, whereupon renewal of permission would be re-negotiated. Therefore, no agreement was concluded.

 In 1978, Parker warned Fourth Davis that it did not have his permission to gain access to the power line on his property. Fourth Davis refused to recognize Parker's claim as absolute owner of the power line. Parker offered to permit Fourth Davis to receive electricity through the line on the condition that he be furnished free electricity and retain exclusive right of maintenance across his property. Fourth Davis rejected this offer.

 In 1979, Fourth Davis informed the Parkers that it intended to enter their property to string a second line along the existing poles and add a separate meter. Ernest Parker responded that Fourth Davis had no permission to enter his property to repair or modify the power line. Fourth Davis then filed this suit for injunction requiring the court to determine the legal rights of the parties in a situation that could have been resolved by the exercise of a moderate amount of self-restraint and neighborly cooperation from both sides.

 C. Trial

 Fourth Davis claimed at trial that its predecessor in interest was impliedly granted an easement across the Parker land to maintain and repair the power line. The Parkers denied that the power line was necessary for enjoyment of the Fourth Davis property, that Fourth Davis had any right to maintain the power line on the Parkers' property, and that any improvement or separation of the power line was necessary. The evidence at trial focused upon (1) necessity, (2) maintenance, and (3) need for another power line, and (4) expenses.

 1. Necessity

 At the present Fourth Davis encampment, consisting of a dozen buildings including mobile homes and a large meeting shed, electricity is used for water pumps, lights, heat, air conditioning, and other appliances. Fourth Davis asserted that continuous electrical power is necessary to run water pumps for fire extinguishing

 and other safety purposes. Members of Fourth Davis testified that electricity through the power line was necessary to enjoy the camp in order to provide water, lights, and refrigeration of perishables.

 Cooking is partly achieved by butane and wood power. When Fourth Davis purchased the property, the power line fed a disused gin and a house trailer used as a hunting camp.

 Ernest Parker testified that, prior to 1961, generators supplied his power on Davis Island. The power line supplied a maintenance shop, a temporary residence, and some water pumps for cattle. He said that having the power line helped to enjoy the property some. His son Bobby said that they used to rely upon generators to power water pumps for the cattle so that in his opinion the power line is not a necessity even now for his cattle operation. He admitted that the power line supplies a number of appliances at his dwellings, but said that he also uses butane ice boxes and butane or wood heaters.

 Other landowners on Davis Island rely on generators for electricity. The Biedenharn hunting camp has a swimming pool whose water pumps are run by a generator. The ...

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