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Bivens v. Kenneth and Paulette Mobley

December 08, 1998

VOLLEY BIVENS, JR. APPELLANT
v.
KENNETH AND PAULETTE MOBLEY APPELLEES



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

The opinion of the court was delivered by: Southwick, J.

DATE OF JUDGMENT: December 12, 1996

TRIAL JUDGE: HON. CHARLES D. THOMAS

COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - REAL PROPERTY

TRIAL COURT DISPOSITION: APPELLANT FOUND TO HAVE EASEMENT FOR INGRESS AND EGRESS, BUT NOT TO RUN WATER LINE; DENIAL OF DAMAGES TO APPELLANT; AWARD OF $1500 IN ATTORNEY FEES TO APPELLANT

DISPOSITION: AFFIRMED IN PART, REVERSED IN PART

¶1. This is an appeal in an easement dispute decided by the Tishomingo County Chancery Court. The dominant estate owner argues that he should be granted more extensive rights under the easement and that additional compensation besides $1,500 in attorney's fees should be awarded. The servient estate owners argue, though without a cross-appeal, that the easement was abandoned and that attorneys' fees were improper. We reverse as to the finding that the easement did not include the right to lay a waterline, but affirm in all other respects.

FACTS

¶2. Kenneth Mobley owned a tract of land north of a tract owned by Volley Bivens in Tishomingo County. In 1978, Mobley and Bivens exchanged these properties; the Mobley tract later was owned both by Kenneth and Paulette Mobley. The deed from Bivens to Mobley reserved an easement, fifteen feet wide, along the east side of what became Mobley's property, using this language:

"There is also conveyed an easement to run with the above described land for ingress and egress to and from the Patrick Road [on the south] to the above described land. . . ."

¶3. Despite the retained east side easement burdening Mobley's land for Bivens's benefit, Bivens actually accessed his property through the west side of Mobley's tract on a driveway beneath an electric company's overhead power lines. That power line was constructed near the time of the exchange of property. Apparently no grant of easement rights has ever been made for the power line driveway. After the new access began to be used, Mobley constructed a house a few feet from the essentially unused east side easement and incorporated part of the easement into his yard. Bivens testified that he told Mobley not to build the house actually on the easement, but he did give Mobley shrubs for the easement. Bivens himself fertilized the shrubs for eighteen years in an effort to make the shrubs grow enough to create a visual barrier. Content to use the west side driveway, neither neighbor complained of what was occurring with the east side easement for fifteen years. During that time relations between the two parties were good.

¶4. The latent threat to the neighborliness was the fact that the parties shared a common waterline which ran along the west driveway. The only water meter was in Mobley's name, and Bivens would pay his share of the bill to Mobley. Mobley was informed in 1993 by the water association that only one dwelling was allowed per water meter. Bivens testified that he was told by Paulette Mobley that he needed to get his own water meter on the line. Bivens preferred to run a water line through the unused east side easement, but the Mobleys did not wish this to happen. The chancellor found that Bivens could have continued to get water without the use of the contested, east side easement. The water service to Bivens's property was disconnected in September of 1993, and a tenant he had in a trailer on the property unsurprisingly left at that time.

¶5. After Bivens stated that he was going to install a line through the east side easement, Mobley got a temporary restraining order in December of 1993. The Mobleys filed a complaint on February 24, 1994. They sought to have the easement declared the result of a mistaken description, as the west side access was the easement intended. Alternatively, the Mobleys sought to have the easement declared abandoned or lost through adverse possession. A cross-complaint was then filed by Bivens to enjoin the Mobleys from interfering with use of the east side easement. After an evidentiary hearing, the chancellor found that the east side easement across the Mobley property had not been abandoned. It was an meaningless victory for Bivens, though, since the chancellor found that the easement was solely for access and could not also be burdened by a water line. Attorneys' fees of $1500 were awarded to Bivens, though other expenses were denied. After each party filed motions for extensions of time in which to file a notice of appeal, only Bivens actually filed a notice.

DISCUSSION

¶6. The appellees Kenneth and Paulette Mobley defend the refusal of the chancellor to grant a right to construct a water line. However, they seek reversal of the chancellor's finding that the easement still existed and had not been abandoned. They would also have us determine that the chancellor erred in awarding the attorneys' fees. To make such arguments regarding a trial court's errors, an appellee must file a cross-appeal. To file a cross-appeal, notice must be given within fourteen days from an appellant's filing an appeal. M.R.A.P. 4(c). Though the trial court granted the Mobleys a thirty-day extension to file a notice of appeal, they never filed one, perhaps relying on the fact that Bivens filed an appeal.

¶7. Failure to file a notice of cross-appeal is usually considered fatal to a cross-appellant's issues. Lindsey v. Lindsey, 612 So. 2d 376, 378 (Miss. 1992). However, the supreme court at least once held that the failure to file a cross-appeal invokes the discretion of the appellate court. Morrow v. Morrow, 591 So. 2d 829, 832 (Miss. 1991) ("[I]t is within this Court's discretion to either address or ignore the issue"). Were we to use that discretion and give full consideration to the "cross-appeal," we ...


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