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SUMAN CORPORATION v. W. W. WARREN

NOVEMBER 15, 1989

SUMAN CORPORATION
v.
W. W. WARREN



EN BANC

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

ON PETITION FOR REHEARING

This case was handed down as PER CURIAM affirmed on February 22, 1989. The petition for rehearing was duly filed and considered by the Court en banc at which time it was determined that an opinion would be published. Accordingly, the PER CURIAM affirmance is withdrawn and the following is handed down as the opinion of this Court.

 This appeal is from an adverse ruling of the Chancery Court of the First Judicial District of Hinds County, Mississippi, in the November 1986 term of court. Suman Corporation appeals from a judgment of the chancery court denying it an injunction to prevent Warren from using Office Plaza Drive for his access to and from his abutting property. The court found that even though Suman owns Office Plaza Drive, Warren has the right to use it.

 Aggrieved by the lower court's final order, Suman Corporation appeals and assigns as error:

 I. The Chancellor Erred in Holding that W. W. Warren, as the Owner of the Property Adjacent to Office Plaza Drive, a Private Street Owned by Suman Corporation, has a Right to Use Office Plaza Drive for Ingress and Egress Against the Wishes of Suman, Without Warren Having any Legal Basis for that "Right."

 II. The Chancellor Erred in Dismissing the Complaint to Enjoin Warren's Use of Office Plaza Drive.

 III. The Chancellor Erred in Finding that J. B. McGehee Intended to Dedicate Office Plaza Drive to the City, Without Restrictions, in Light of J. B. McGehee's Express Refusal to Dedicate Office Plaza

 Drive.

 Finding no reversible error, we affirm.

 STATEMENT OF THE FACTS

 The chancellor correctly pointed out that the majority of the facts of this case are not in dispute, most of which were stipulated to at the opening of the trial.

 In 1964, J. B. McGehee, a real estate developer, bought a tract of land in the city of Jackson, which tract was bounded on the east by I-55 Frontage Road and on the south by Bounds Street. This tract was ultimately to be developed into a property named Office Plaza. McGehee constructed a street through the southeast corner of this property, Office Plaza Drive, which is the focus of this case. The street runs in an inverted-L-shape direction. The upper east-to-west leg runs from roughly the center of the property to Frontage Road; the north-to-south leg ends at Bounds Street. The street was built wide enough to allow for diagonal parking as well as two-way traffic. McGehee intended the street to be used by the public and, in fact, planned to dedicate the street to the City of Jackson. The city, however, would not accept the street if diagonal parking was to be allowed on it. McGehee refused to dedicate the street under those conditions. Nevertheless, the street has been used continuously by the public since its construction.

 McGehee eventually divided the property into smaller tracts.

 On May 13, 1976, McGehee conveyed one of these smaller tracts to John A. "Kayo" Dottley by warranty deed. This tract was fronted by Office Plaza Drive on the north and by Frontage Road on the East; the western and southern boundaries were landlocked.

 On December 15, 1983, McGehee conveyed another tract by warranty deed to Suman Corp. This inverted-L-shaped tract wraps itself around Office Plaza Drive from the street's beginning at Frontage Road to its end at Bounds Street - north of Office Plaza Drive in its east-west leg, and west of Office Plaza Drive in its north-south leg. The same day this tract was conveyed to Suman by warranty deed, McGehee also conveyed to Suman by quitclaim deed the land which comprises Office Plaza Drive. The quitclaim deed contained the following paragraph:

 The above described property is presently utilized as a private street or roadway known as Office Plaza Drive and same is conveyed hereby subject to the rights

 of all parties owning property abutting said Office Plaza Drive, their heirs, successors, assigns, invitees and guests, to utilize and use same for parking and for street or roadway purposes. At any time in the future, either the grantor herein or the grantee herein, their heirs, successors or assigns, shall have the right and privilege to dedicate same to public uses ...


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