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McDonald v. Mississippi Power Co.

January 14, 1999

OTIS G. MCDONALD, FLORA MCDONALD, ROBERT MORDICA, VON KYLE MODICA, ROBERT R. ROYALS, JUDY W. ROYALS, VENCIE PRUITT, RUTHIE MAE PRUITT, W. D. YOUNG, WILLIAM PAUL ROWELL, BERTIE FLOWERS, SARAH E. LIFE, MRS. A. W. LIVINGSTON, DAVID LIVINGSTON, ELIZABETH D. LIVINGSTON, AUDREY MCCLELLAN, TOM MCCLELLAN, CECIL MCCLELLAN, JR., E. H. MORGAN, JOHN A. ASHLEY, JANE CAROL ASHLEY, EDNA M. SHEPARD, JANIS M. SUMRALL, JAMES THIGPEN, KATHERYN WHEELER, TEXANA MCFARLAND, SAM SIMMONS, HELEN NAYLOR, NANCY CARTER, CORRINE SIMMONS, WILLIE MAE RAINES, HERMAN DEAS, IRA W. STRINGER, ONITA S. STRINGER, ROBERT E. BELL, SR., CHARLES HENRY BELL, LOVELLA HENRY, MARTHA C. HENRY, BOBBY RAY KIDD, JONIE KIDD, JAMES C. MCKIBBON, ANNA TROTTER, AUGUSTUS F. BALL, CONNIE BALL, EULA HICKSON, LELAND L. STOKES, DIANE R. STOKES, MICHAEL R. STOKES, AND KIMBERLE D. STOKES
v.
MISSISSIPPI POWER COMPANY, A MISSISSIPPI CORPORATION AND SOUTHERN COMPANY, A DELAWARE CORPORATION



Before Prather, C.j., McRAE And Waller, JJ.

The opinion of the court was delivered by: Waller, Justice,

DATE OF JUDGMENT: 10/01/1997 TRIAL JUDGE: HON. H. DAVID CLARK COURT FROM WHICH APPEALED: JASPER COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - EMINENT DOMAIN

DISPOSITION: REVERSED AND REMANDED - 1/14/99

STATEMENT OF THE CASE

¶1. Otis G. McDonald, et al. appeals from the entry of an order of the Chancery Court of the First Judicial District of Jasper County granting summary judgment to Mississippi Power Company. McDonald raises the following issues on appeal.

I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.

II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.

III. WHETHER THE COURT BELOW ERRED IN HOLDING THAT NO AMBIGUITY EXISTED IN THE LANGUAGE OF THE EASEMENTS WHICH FORM THE BASIS OF THIS DISPUTE.

IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS' REQUEST FOR INJUNCTIVE RELIEF.

STATEMENT OF THE FACTS

¶2. Otis G. McDonald and the other Plaintiffs (referred to collectively as "McDonald" hereinafter) are owners in fee simple of certain tracts of real property located in Jones, Clark and Jasper Counties, Mississippi. Mississippi Power Company ("MPC") obtained easements through the Plaintiffs' property by way of condemnation, eminent domain proceedings or voluntary easements executed by the Plaintiffs some thirty years prior to the filing of this action. Those easements gave MPC the right to "construct, operate and maintain electric lines and all telegraph and telephone lines, towers, poles, wires, and appliances and equipment necessary or convenient in connection therewith from time to time and counterpoise wire and other counterpoise conductors, upon, over, under, and across a strip of land . . ."

¶3. MPC and the Southern Company ("Southern") filed a complaint for declaratory relief in the Chancery Court of the Second Judicial District of Jones County, Mississippi. This action was later transferred to the Chancery Court of the First Judicial District of Jasper County. MPC and Southern sought declaration that they had the right to use the existing easements to install and utilize fiber optic cables. McDonald filed a counter-claim seeking injunctive relief and damages resulting from MPC's installation of the fiber optic cable.

ΒΆ4. The Chancery Court of the First Judicial District of Jasper County, Honorable H. David Clark, II, presiding, entered an order of summary judgment and final judgment in favor of MPC. The record before this Court contains detailed Conclusions of law, as well as findings of fact, made by Chancellor Clark. Many of the findings made by the ...


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