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Prince v. Ballard

August 18, 1998

CHARLES R. PRINCE AND WIFE, ROSA PRINCE; ALLIE LUE EDWARDS; MARY YARBROUGH, VINOLAE L. WHITEHEAD AND WILLIE T. LAMPKIN, APPELLANTS
v.
EDWARD S. BALLARD AND HENRY B. HUDSPETH, JOINTLY AND SEVERALLY, AND CITY OF LOUISVILLE, MISSISSIPPI, APPELLEES



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Thomas, P.j., For The Court:

Prince, et al v. Ballard, et al, 97-CA-00316-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 02/05/97

TRIAL JUDGE: HON. JOHN C. LOVE JR.

COURT FROM WHICH APPEALED: WINSTON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - REAL PROPERTY

TRIAL COURT DISPOSITION: FRAUD CLAIMS DISMISSED; DAMAGES AWARDED BASED ON PURCHASE PRICE

DISPOSITION AFFIRMED

Charles Prince, et al. appeal the decision of the Winston County Chancery Court raising the following issues as error:

I. THE CHANCELLOR WAS MANIFESTLY IN ERROR IN FINDING THE CITY OF LOUISVILLE HAD ACQUIRED A VALID EASEMENT FROM THE TVA IN 1987.

II. THE CHANCELLOR WAS MANIFESTLY IN ERROR IN RULING THAT THE CITY OF LOUISVILLE WAS NOT ESTOPPED FROM UTILIZING THE SUBER EASEMENT AGAINST THE PRINCE, ET AL. PARTIES.

III. THE CHANCELLOR WAS MANIFESTLY IN ERROR IN GRANTING A MANDATORY INJUNCTION TO THE CITY OF LOUISVILLE REQUIRING CHARLES AND ROSA PRINCE TO TEAR DOWN A PORTION OF THEIR RESIDENCE.

IV. THE CHANCELLOR WAS MANIFESTLY IN ERROR IN FAILING TO FIND EITHER FRAUD OR CONSTRUCTIVE FRAUD ON THE PART OF THE WARRANTORS FOR FAILURE TO DISCLOSE THE SUBER EASEMENT ON THEIR MAP OF THE SUBDIVISION AS REQUIRED BY LAW.

V. THE CHANCELLOR ABUSED HIS DISCRETION IN EXCLUDING ALL OF THE EXPERT APPRAISAL TESTIMONY AND SUBSTITUTING HIS OWN OPINION OF THE BEFORE AND AFTER VALUE OF THE PRINCE, ET AL. PROPERTIES.

Finding no error, we affirm.

FACTS

In 1926, R. L. Suber and Nora Suber conveyed to the Mississippi Power Company for the purpose of constructing, operating, and maintaining electric transmission lines, an easement 100 feet wide, over a strip of land located in Winston County, Mississippi. In 1939, the Mississippi Power Company transferred the Suber easement to the Tennessee Valley Authority (TVA). TVA used the easement for the transmission of electricity to the City of Louisville and others until 1966. At that time TVA de-energized the lines but left the poles, cross arms, and copper wires in place. The easement was no longer maintained in the strictest sense in that weeds and vines were allowed to grow over the subject property. However, TVA did from time to time replace poles on the easement.

In 1987, Louisville purchased from TVA the Louisville-Sturgis 46-kV Transmission Line which included the Suber easement and included all poles, cross arms, wires, etc. Thereafter, Louisville installed new poles and wires five feet to the west of the existing poles which were subsequently removed. Louisville paid a total purchase price of $4,539.54 and eventually sold the copper wires it recovered from the existing poles for over $10,000.

Back in 1971, H. B. Hudspeth was conveyed the subject property which contained the Suber easement. The instrument deeding the property did not mention the easement. Hudspeth subsequently conveyed two-thirds of the property to Edward Ballard and James Mayo. This deed failed to reference the easement. These three then subdivided the property into residential lots and thereafter, recorded and presented to Louisville a plat entitled "Southwest Subdivision." ...


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