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C & D INVESTMENT CO. v. GULF TRANSPORT CO.

MAY 04, 1988

C & D INVESTMENT CO.
v.
GULF TRANSPORT CO., ET AL.



BEFORE HAWKINS, PRATHER, AND ANDERSON

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal from a ruling of the Chancellor of Hinds County granting a motion to dismiss the appellant's complaint under Rule 12 (b) (6), MRCP for failure to state a claim upon which relief could be granted.

In substance, this is a dispute over ownership of a strip of land in the Pearlington Subdivision of Jackson. The defendant/appellant (hereinafter Gulf Transport) is a subsidiary of the Illinois Central Gulf Railroad. On July 6, 1972, the Gulf, Mobile and Ohio Railroad (now merged into the Illinois Central Gulf RR) concluded a master agreement with C & D Investment Co., a Mississippi corporation, to plan the use of various tracts of real property owned between the two of them in the Pearlington Subdivision.

 Pursuant to the master agreement, Gulf Transport entered an agreement with C & D Investment dated September 13, 1972. This document, after describing certain property owned by the railroad, stated:

 NOW, THEREFORE, in consideration of the premises, Railroad agrees with Company that should it, in its sole discretion, dispose of the property hereinabove described lying immediately west of the property previously conveyed to Company, it will convey to Company a 25-foot strip of land north and south and lying immediately west of the Old Maloney Building for purposes of ingress and egress to the Company property.

 This document was recorded on November 9, 1972, at the chancery clerk's office.

 On May 27, 1983, Gulf conveyed the subject property, including the 25-foot strip, to its parent corporation the ICG RR by warranty deed. Through two mesne ownerships this property was subsequently conveyed by warranty deed dated

 November 14, 1985, to Marlon Evans, who, with his partner John Overton, was doing business as the Evans Construction Co. Evans and Overton built an office building on the site.

 On April 18, 1986, C & D Investment Co. filed a bill of complaint in the Chancery Court of Hinds County alleging that Gulf, Evans and Overton had violated the 1972 agreement and praying for an injunction against the construction of the Evans' building and against Gulf for specific performance of the agreement to convey the 25 foot strip, to confirm title in that strip in C & D, and for general relief. C & D failed to comply with a court order to increase the bond and Evans and Overton moved to dissolve the preliminary injunction. Shortly thereafter all of the defendants filed joint motions to dismiss the complaint under Rule 12 (b)(6). On July 31, 1986, the chancellor dissolved the preliminary injunction and dismissed the complaint for failure to state a claim. The chancellor issued a short written opinion in support of his dismissal. He found the agreement of September 13, 1972, was so uncertain in its terms as to be incapable of supporting any practical remedy; that it failed to recite adequate consideration; that it failed to provide an adequate description of the property to be conveyed; and it violated the rule against perpetuities.

 ARGUMENTS OF LAW

 IS THE APPEAL MOOT?

 After the preliminary injunction was dissolved, Evans and Overton continued their construction on the disputed property, ultimately completing their office building. They now move to dismiss the appeal for mootness, relying on the general rule that an injunction will not issue against a fait accompli. However, the injunction was not the only remedy sought by the plaintiff in the court below. The complaint also sought to confirm title in C & D and prayed for general relief. Our test for deciding the presence of mootness in such a situation was announced in Henley v. Kilbas, 188 Miss. 604, 607, 195 So. 582, 582 (1940). For mootness to extinguish an action, there must be circumstances "so that a judgment upon the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant. . . ."

 By the Henley standard, the present action clearly is not moot. If the Court finds that title to the disputed strip of land should be confirmed in C & D, then C & D could conceivably have actions for damages against both Gulf and the Evans/Overton partnership. ...


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