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Grantham v. Old Liberty Cemetery Association

Court of Appeals of Mississippi

February 21, 2017

CATHY DORIS L. GRANTHAM APPELLANT
v.
OLD LIBERTY CEMETERY ASSOCIATION APPELLEE

          DATE OF JUDGMENT: 01/05/2015

         CARROLL COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. EDWARD C. FENWICK JUDGE

          ATTORNEY FOR APPELLANT: JAMES H. POWELL III

          ATTORNEYS FOR APPELLEE: JONATHAN RYAN TAYLOR ALAN D. LANCASTER

          BEFORE LEE, C.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. Cathy Grantham and the Old Liberty Cemetery Association (Association) sued each other over the title status of 1.55 acres constituting the Old Liberty Cemetery (Cemetery). The two cases were consolidated. After a three-day trial, the chancellor entered a detailed final judgment. Grantham appeals, arguing that: (1) the chancellor erroneously failed to award her a prescriptive easement over the road running adjacent to the southern boundary line of the Cemetery; and (2) the chancellor erroneously failed to find that the actions of Grantham's sister, as an agent for the Association, rose to the level of malice necessary to support her counterclaim for slander of title. We find the decision to be within the chancellor's discretion and therefore affirm.

         FACTS

         ¶2. In the words of the chancellor:

What at first blush appears to be a bitter family dispute between two . . . sisters has mushroomed into a community-wide dispute, because the land in issue is an old church cemetery that has been in existence for over 160 years. The land has little intrinsic value; however, it is sacred ground to the Lott family as well as to the many family and community members that have family and friends buried in the cemetery. The land on which the [C]emetery is located was patented out of the government to Aaron Lott in 1840.

         ¶3. There were deeds and transfers of grave sites on a portion of Aaron Lott's land over a period of more than 140 years. The Cemetery established itself by such use and by the erection of fences around it. In 1854 Aaron Lott and his wife, Martha, had deeded to the "Committee of Arrangements" of the Old Liberty Church two acres for the church building and the Cemetery near the building, both of which were in existence at that time. Ultimately, three sisters - Rita Deloach, Linda Douglas, and Cathy Grantham - and their father, Johnnie Lott, all descendants of Aaron Lott, became record title owners of that portion of Aaron Lott's property surrounding the Cemetery. In October 1981, the daughters quitclaimed their interests to their father, excepting two acres, undescribed any further, for the Cemetery. In 1994 Johnnie conveyed his interest, subject to a life estate in himself, to his daughter, Cathy Grantham, "less and except 2 acres, more or less, comprising the [C]emetery."

         ¶4. Johnnie died in 2011. Two years later, Grantham filed an instrument claiming she controlled access to the Cemetery. On March 3, 2013, the Liberty Cemetery Committee (Committee), on behalf of Liberty Baptist Church, met to deal with the Cemetery and its surrounding area. Liberty Baptist Church had long since removed from the property around the Cemetery, there having been only two or three burials there in the preceding sixty to seventy years. The Committee voted to "quit deed" the Lott property, less and except the Cemetery, "to the Lott family." On June 7, 2013, the Association was formally established and a charter and bylaws enacted, with its purpose enunciated as "permanent maintenance of the Liberty Baptist Church Cemetery." The deed contemplated was executed and filed, with the church deacons conveying the Cemetery to named trustees and/or their successors to act on behalf of the Association, and a plat of the 1.55 acres constituting the Cemetery, which was prepared by Joe Sutherland, was attached. One of the sisters, Rita Deloach, participated in the process.

         ¶5. Grantham then began locking the gate to the Cemetery. When her attempts to deny access to the grounds failed (locks were cut off the gate seven times), her husband removed the culvert from the road ditch and pushed dirt and gravel in front of the gate.

         ¶6. In their suit, the Granthams[1] alleged that the 1.55 acres claimed by the Association should actually only be the 1.25 acres of actual Cemetery grounds enclosed by a longstanding fence. Just a few months before the Association's deed was filed, Grantham filed an "Instrument to Clarify Description and Location of the Lott Cemetery in Carroll County, Mississippi and Providing for Reasonable Access Thereto" to which a survey, performed by Sutherland, who ...


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