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King v. Gale

Court of Appeals of Mississippi

June 16, 2015

ERVIN KING, APPELLANT
v.
SAM GALE AND JERUSALEM BAPTIST CHURCH, APPELLEES

Page 590

COURT FROM WHICH APPEALED: KEMPER COUNTY CHANCERY COURT. DATE OF JUDGMENT: 11/20/2012. TRIAL JUDGE: HON. EDWARD C. FENWICK. TRIAL COURT DISPOSITION: DISMISSED APPELLANT'S CLAIMS TO CONFIRM AND QUIET TITLE AND FOR AN EASEMENT BY IMPLICATION OR NECESSITY; DENIED APPELLANT'S CLAIM FOR A PRESCRIPTIVE EASEMENT.

FOR APPELLANT: ROBERT M. LOGAN JR.

FOR APPELLEE: GEORGE HOWARD SPINKS.

MAXWELL, J. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.

OPINION

Page 591

NATURE OF THE CASE: CIVIL - REAL PROPERTY

EN BANC.

MAXWELL, J.

[¶1] Ervin King appeals the denial of his claims for either a prescriptive easement or easement by necessity across Sam Gale's and Jerusalem Baptist Church's properties. The evidentiary burden required to establish a prescriptive easement is high--clear and convincing evidence. And the chancellor found King failed to clearly establish the most basic principle for a prescriptive easement--use that is non-permissive. The chancellor also found King did not prove that an easement by necessity across Gale's property was, in fact, necessary. And as to the church property, King could not meet the preliminary requirement for an easement-by-necessity claim--that his and the church's land was once commonly owned.

[¶2] After review, we find the chancellor applied the law correctly and based his decision on substantial record evidence. So we affirm.

Facts and Procedural History

I. King's Property

[¶3] King has owned a landlocked piece of property in Kemper County since 1974. Though King lives out of state, he visits the Mississippi property three to four times a year.

[¶4] According to King, to get to his property, most often he would turn off Highway 39 onto Jerusalem Church Road and head south. Jerusalem Church Road runs past Jerusalem Baptist Church, which has a private drive and parking lot. Just south of the church parking lot is Sam Gale's property. And south of Gale's property lies King's. Gale's property is fenced. But sometimes, with Gale's permission, King would open Gale's gates and drive across Gale's property to get to his. Most times, however, King would park in the church parking lot, hop the fence, and then walk across Gale's property.

[¶5] At other times, King would not go through Gale's property at all. Instead, he would enter his property through land belonging to another neighbor, George Follet. For example, when King harvested timber in 1985, he used Follett's property to remove the timber.

[¶6] In 2004, King and Gale had a falling out. So King stopped going across Gale's property and ever since has crossed Follett's.

II. King's Lawsuit

[¶7] In 2006, King sued Gale. King asked the Kemper County Chancery Court to establish a boundary line between his and Gale's properties. He also asked for an easement by necessity or prescriptive easement across Gale's land. Later, King amended his complaint, adding Jerusalem Baptist Church as a defendant. King's amended complaint sought an easement across the church's property too.

[¶8] Trial began in January 2012. At the close of King's evidence, Gale and Jerusalem Baptist Church filed a motion to dismiss. See M.R.C.P. 41(b) (permitting the defendant, in a case tried without a jury, to file a motion to dismiss " on the ground that upon the facts and the law the plaintiff has shown no right to relief" ). The chancellor partially granted the motion.

[¶9] The chancellor dismissed King's claim to establish a boundary line, because he " didn't think the evidence was compelling enough." See Buelow v. Glidewell, 757 So.2d 216, 220 (¶ 12) (Miss. 2012) (directing

Page 592

that a Rule 41(b) motion " should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff's burden of proof" ). While King presented an expert surveyor, the chancellor refused to admit some of the documents the expert relied on--namely, a twenty-year-old preliminary sketch prepared by the surveyor's predecessor and a plat the surveyor created from his predecessor's sketch.

[¶10] The chancellor also dismissed King's claim for an easement by necessity across both Gale's and Jerusalem Baptist Church's properties. The chancellor found King had presented no proof of necessity against Gale. King also offered no proof his land used to be part of a common tract with the church property--an essential first step to establishing an easement by necessity.

[¶11] Still, the chancellor overruled the motion to dismiss the prescriptive-easement claim. Because he could not say King failed to establish this claim, the chancellor ordered ...


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