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Muirhead v. Cogan

Court of Appeals of Mississippi

March 10, 2015

STEVE MUIRHEAD, APPELLANT
v.
LULA COGAN, APPELLEE

COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT. DATE OF JUDGMENT: 05/08/2013. TRIAL JUDGE: HON. MARIE WILSON. TRIAL COURT DISPOSITION: AWARDED PLAINTIFF/APPELLEE COMPENSATORY DAMAGES, PUNITIVE DAMAGES, AND ATTORNEY'S FEES.

FOR APPELLANT: PAMELA NETTERVILLE GRADY.

FOR APPELLEE: DAVID M. SESSUMS.

BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

OPINION

Page 1260

IRVING, P.J.

¶1. Lula Cogan is a dominant-estate owner of an express easement located on land owned by her brother, Steve Muirhead. Lula sued Steve in the Chancery Court of Warren County, alleging that Steve had intentionally and maliciously destroyed the easement. Lula also alleged that Steve had denied her legal access to her land, which made her land worthless. Steve filed a cross-complaint, alleging that Lula had failed to maintain the easement and had damaged the easement and his property. Following a two-day trial, the chancery court awarded Lula compensatory damages, punitive damages, and attorney's fees. Steve appeals, arguing that the chancery court erred by awarding Lula damages and attorney's fees.

¶2. For the reasons that we shall discuss, we affirm in part and reverse and remand in part.

FACTS

¶3. Lula and Steve, along with their siblings, inherited from their parents land situated in or near Vicksburg, Mississippi. This included the private portion of Muirhead Road.[1] In 1979, the siblings divided the land via a partition deed. In the deed, the siblings reserved a twenty-foot-wide easement over the parcels of land that were given to Marvin Muirhead and Lula. The easement allowed for the extension of Muirhead Road so that Marvin, Lula, and Steve could access their property. At some subsequent point, Steve purchased Marvin's portion of the land. Steve used the easement to access his house, and built a fence along both sides of the easement. Lula, who owns land to the east of Steve's land, also used the easement to access her land so that she could work in her gardens and cut timber. In or around 1994, Steve's son, Ronnie, built a house and began using the easement to access his house.

¶4. When Ronnie began using the easement, Ronnie purchased gravel and, with Steve's help, placed the gravel on the lower portion of the easement.[2] Because the

Page 1261

easement has a steep downhill slope, rainfall would wash the gravel downhill. On several occasions following heavy rainfall, Ronnie would replace the gravel that had washed to the bottom of the easement.

¶5. In 2005, Steve asked Lula to contribute $3,000 toward the maintenance of the easement, but Lula declined to do so. Instead, Lula asked Pete Buford, a construction worker who owns a construction business, to determine whether the easement needed any work. After performing an assessment, Pete provided Lula with a written report, dated July 26, 2005, a portion of which we quote verbatim:

On 7/20/05 I met with Lula . . . to examine and give her my professional opinion on [the easement]. Gravel on the said [easement], after three (3) probes were taken, was six to eight inches deep (6" to 8" ). . . . I informed [Lula] at this time I could see no need for any maintenance on this piece of property.
****
The depth of gravel was checked on . . . the easement, the first being at [foot] of a hill which was measured at Eight and one half inches (8 1/2" ) of gravel. Another probe was taken in the middle of hill, and gravel measured Seven and one half inches (7 1/2" ). It was opinion [sic] that this part of the easement needed no gravel or maintenance at this time.

¶6. In 2006, Ronnie built a road that intersected Muirhead Road. After the new road was built, both Steve and Ronnie abandoned the easement and began using the newly built road to access their houses. Ronnie also installed a culvert near the intersection. The culvert directed water away from the newly built road and onto the easement. Also in 2006, after the new road was built, most of the gravel was mysteriously removed from the easement. At some point after the gravel was removed, dirt from the center of the easement was pushed up onto the sides of the easement. After that, a large v-shaped ditch was dug across the easement, preventing vehicular use of the easement.

¶7. In 2007, Lula hired Pete to perform conservation work on her property. To access Lula's property, Pete and his employees had to use the easement. To make the easement usable, Pete instructed one of his employees, Marcus Clark, to fill the v-shaped ditch with dirt. Marcus complied. However, shortly thereafter, a trench, which was approximately four feet deep and five feet wide, was dug in the center of the easement. As a result, water settled in the center of the easement, causing severe erosion. By 2008, the easement had almost completely eroded.

¶8. In her complaint, Lula alleged that Steve had destroyed the easement by: (1) removing the gravel, (2) installing the culvert, (3) erecting metal posts on the easement, and (4) digging the trench. Lula also alleged that Steve had restricted her access to her land. In his cross-complaint, Steve alleged that in 2007, Lula authorized Pete to dig ditches on the sides of the easement, causing damage to Steve's fence and land. Steve also alleged that the damage to his property had been caused by Lula's failure to maintain the easement.

¶9. During trial, Lula admitted that she had never contributed financially toward the maintenance of the easement. She testified that in 2005, after consulting with Pete, she believed that no maintenance was needed on the easement. Lula also admitted that she had not witnessed Steve or Ronnie remove the gravel from the easement in 2006. However, Lula indicated that she believed that Steve had used his machinery to remove the gravel. Lula testified that she believed that after Steve removed the gravel from the easement, he used a bulldozer to push the dirt up on the sides of the easement. She denied authorizing Pete to dig ditches on the sides of

Page 1262

the easement. Lula believed that Steve had used a track hoe to dig the trench in the center of the easement. She stated that she did not own any machinery that she could have used to push the dirt up onto the sides of the easement, to dig the v-shaped ditch, or to dig the trench. Lula also testified that the destruction of the easement prevented her from working in her ...


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