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Swenson v. Brouillette

Court of Appeals of Mississippi

October 7, 2014

RICHARD C. SWENSON, APPELLANT
v.
JAMES KERMIT BROUILLETTE AND SHARON ISABELLE EMERSON BROUILLETTE, BOTH INDIVIDUALLY, AND AS TRUSTEES OF THE JAMES AND SHARON BROUILLETTE LIVING TRUST, APPELLEES

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COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT. DATE OF JUDGMENT: 12/19/2012. TRIAL JUDGE: HON. M. RONALD DOLEAC. TRIAL COURT DISPOSITION: DENIED APPELLANT'S CLAIMS THAT HE WAS ENTITLED TO AN APPURTENANT EASEMENT, A PRESCRIPTIVE EASEMENT, AND AN EASEMENT BY NECESSITY.

FOR APPELLANT: G. GERALD CRUTHIRD, PEGGY HIRSCHEY-WILLIAMS.

FOR APPELLEES: CLAIBORNE MCDONALD, GAIL D. NICHOLSON, GERALD C. PATCH.

BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

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ROBERTS, J.

¶1. Richard Swenson sued his neighbors, James and Sharon Brouillette (the

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Brouillettes), and claimed he was entitled to an easement over their property. Specifically, Swenson claimed he was entitled to a prescriptive easement and an easement by necessity. The Pearl River County Chancery Court found no merit to Swenson's claims. Additionally, the chancellor found that Swenson failed to prove that he was entitled to damages for trees that the Brouillettes had trimmed. Swenson appeals. Finding no error, we affirm the chancellor's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Over the course of thirty-five years, Swenson acquired more than 120 acres of real estate in Pearl River County.[1] The current litigation centers on his access to a twenty-eight-acre parcel.[2] According to Swenson, the most convenient way for him to access that parcel with heavy equipment was to use a private road called Oak Leaf Drive West, which intersected with Carey Byrd Road, a public road. The private road ran across the Brouillettes' property.[3] To be precise, the private road was the Brouillettes' driveway. To access the twenty-eight acres, Swenson had to pass through a gate on the Brouillettes' property, and another gate that led to the twenty-eight acres.

¶3. The record indicates that the dispute between Swenson and the Brouillettes began when the Brouillettes built their home near the property line that they shared with Swenson. According to Swenson, the Brouillettes built their house too close to the property line. Swenson also disliked the fact that the back of the Brouillettes' unfinished home, which he described as " that menagerie," was visible from his own house. At trial, Swenson testified that the back of the Brouillettes' home " was like going into an alley in New Orleans." He also said that it " was always trashy." However, by the time the parties went to trial, the Brouillettes had finished improving the back of their home.

¶4. Meanwhile, Swenson had been improving aspects of his own property. He built two lakes near his home, which involved hauling in truckloads of dirt to construct a dam. There was testimony that Swenson could access the twenty-eight acres by driving or walking across the dam. However, Swenson testified that the dam was insufficient for regular residential traffic, and it was only useful in dry weather. According to Swenson, heavy traffic would cause the dam to erode.

¶5. At some point, the Brouillettes installed a gate across the private road.[4] It is similarly unclear when James Brouillette placed a lock on the gate. According to James, he gave Swenson a key to the lock. James testified that he allowed Swenson to use the private road because

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he was being a " good neighbor." James further testified that Swenson lost the first key that he gave him, so he gave Swenson another key to the lock. Swenson disputed that James had ever given him a key to the lock. According to Swenson, he cut James's ...


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