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Mayton v. Oliver

Court of Appeals of Mississippi

November 30, 2017


          DATE OF JUDGMENT: 11/19/2015




         EN BANC.

          WILSON, J.

         ¶1. This is a case about four neighbors on a cul-de-sac in Greenville. Three of them, the plaintiffs, allege that the other, Jane Oliver, violated a restrictive covenant and interfered with express or prescriptive drainage easements when she blocked a PVC pipe that emptied water from their lots onto her property. The chancellor found that the plaintiffs failed to establish the existence of an express or prescriptive drainage easement and denied their claims for injunctive relief and damages. The chancellor also denied Oliver's request for attorney's fees and her counterclaim for damages. The plaintiffs appealed, and Oliver cross-appealed. We find no error and affirm.


         ¶2. The Orchard Plantation Subdivision in Greenville was established in 1978. The approximately ten-acre subdivision was divided into seven lots along Orchard Place, a private road that winds south off of Tampa Drive before dead-ending in a cul-de-sac. The Washington County Board of Supervisors approved the subdivision's plat and "Drainage Plan, " and both were recorded in the county land records. The subdivision's "Declaration of Protective Covenants and Restrictions" was also recorded in the county land records.

         ¶3. All but one of the subdivision's current property owners are parties to this case. Defendant Oliver bought her home on Lot 5 in 1987. Lot 5 is at the south end of Orchard Place in the cul-de-sac. Plaintiff J.A. McNeil bought Lot 6 in 1981 and built a home on it in 1986. McNeil's home is north of Oliver's on the east side of Orchard Place. McNeil also owns two other lots in the subdivision that are not directly at issue in this case. In 2010, plaintiff Michael Maranto purchased the home on Lot 4, which is adjacent to and essentially due west of Oliver's home. In 2013, plaintiff John William Mayton purchased the home on Lot 3, which is north of Maranto's lot and northwest of Oliver's lot on the west side of Orchard Place. Mayton bought his home out of foreclosure after it had been vacant for about two years.

         ¶4. In the spring of 2014, Greenville experienced several consecutive days of heavy rain. Oliver testified that her yard flooded all the way up to the top step of her porch, almost inside her house. Oliver concluded that the flooding was caused or exacerbated by water flowing into a culvert that runs under her driveway in front of her house and-in particular-by a six- inch PVC pipe that runs under the street from Mayton's house (Lot 3)[1] and then empties into Oliver's culvert. Oliver testified that she had never noticed the PVC pipe prior to the heavy rain and flooding in the spring of 2014. But on that occasion, water was flowing from the pipe "like a fountain . . . into [her] yard in a huge rush." To address the problem as she perceived it, Oliver blocked her culvert and plugged the end of the PVC pipe using plywood and bags of unmixed concrete. According to Oliver, this alleviated her problems.

         ¶5. However, the plaintiffs claim that Oliver's actions made their drainage problems much worse. The PVC pipe ran beneath Orchard Place in a southeasterly direction from Mayton's yard to Oliver's culvert. The pipe had been draining water from Mayton's yard and runoff from the northeast part of Maranto's yard into Oliver's culvert. Mayton and Maranto testified that by blocking the PVC pipe, Oliver caused water to back up into their yards, which led to several weeks of standing water and significant damage to their lawns.

         ¶6. McNeil testified that water from his yard previously drained into Oliver's culvert. He also testified that Oliver had directed the natural flow of water from his yard toward her culvert when she built a "berm" along their property line in the 1990s. McNeil claimed that by blocking the culvert, Oliver caused water to back up into his yard, which caused several weeks of standing water and significant damage to his lawn. Oliver generally disputed her neighbors' claims and denied that their drainage issues were any worse than before.

         ¶7. On June 10, 2014, Mayton, McNeil, and Maranto filed a complaint against Oliver in the Washington County Chancery Court. They alleged that Oliver was in violation of the subdivision's restrictive covenants, that they were entitled to use "utility easements" shown on the subdivision's plat to drain their respective lots, and that the subdivision's "current drainage pattern [was] consistent with the [subdivision's] original Drainage Plan, " which they attached as an exhibit to the complaint. The plaintiffs sought preliminary and permanent injunctive relief and damages based on Oliver's alleged violation of the covenants and interference with the easements.

         ¶8. Oliver answered, denied the plaintiffs' allegations, and filed a counterclaim. She alleged that the plaintiffs' use of the PVC pipe to divert water from their lots onto her property violated the subdivision's restrictive covenants and Drainage Plan. She also alleged that Mayton had added "fill dirt" to his property, which had altered the neighborhood's drainage pattern and Drainage Plan. Oliver further alleged that the plaintiffs' actions and the resulting drainage onto her property had caused damage to her yard and driveway, and she sought injunctive relief (removal of the PVC pipe) and damages.

         ¶9. On July 15 and 17, 2014, the chancellor held a hearing on the plaintiffs' request for a preliminary injunction. At the hearing, an engineer hired by the plaintiffs, Marcus Hooker Jr., had to concede that the plaintiffs' claims-and the neighborhood's current drainage pattern-were not consistent with the subdivision's Drainage Plan. Among other things, the drainage from Mayton's and Maranto's lots through the PVC pipe and into Oliver's culvert was directly contrary to the flow of water depicted on the Drainage Plan. In fact, the Drainage Plan showed that water should drain west off of Mayton's lot, away from Oliver's lot. The Drainage Plan called for a "swale" on Mayton's lot to direct drainage to the west; however, Hooker testified that the swale did not exist at the time he inspected the property. Hooker conceded that drainage from the Mayton lot was "actually going in exactly the opposite way from the Drainage Plan, " while drainage on the Oliver lot was substantially consistent with the Drainage Plan.

         ¶10. The Drainage Plan did call for a twenty-four-inch "cross drain" under the street, somewhat to the north of the actual path of the PVC pipe. However, the Drainage Plan called for the cross drain to carry water west from McNeil's lot across the street to Mayton's lot, where it would then continue to drain west off the back of Mayton's lot. In other words, the PVC pipe was draining water in roughly the opposite direction of the cross drain depicted on the Drainage Plan. There is no evidence that such a cross drain was ever installed.

         ¶11. McNeil testified that a prior owner of the Mayton lot (Lot 3), Tom Cameron, installed the PVC pipe in December 2007. According to McNeil, the PVC pipe replaced an old metal pipe that had been in the same location since at least 1981. McNeil testified that he and Cameron agreed that the metal pipe should be replaced because it had become "compressed" or "clogged" or "crushed, " which had "retarded the flow of water from one side to the other." McNeil discussed the new PVC pipe with all of the subdivision's residents except Oliver and her husband, which he considered a sufficient consultation with the subdivision's "board." He testified that this gave him "a majority" of votes to put in the PVC pipe "since [he has] three lots and three votes." McNeil testified that he did not tell the Olivers about the new pipe because "[t]hey don't agree to anything." As noted above, Oliver testified that she was unaware of the PVC pipe emptying into her culvert prior to the heavy rains and flooding in the spring of 2014. She also testified that she was not aware of the prior metal pipe.

         ¶12. Mayton testified that his house had been vacant for two years before he bought it out of foreclosure in 2013. There was a problem with standing water in his yard because the PVC pipe was not draining properly. Mayton testified that he had the pipe cleaned out, which resolved the problem. McNeil also testified that Leroy Davenport, who owned Lot 3 before Tom Cameron, "was not real good about cleaning out the [PVC pipe], " which resulted in the pipe not draining properly for periods of time and standing water on Lot 3.

         ¶13. The Drainage Plan provided that the runoff from Maranto's lot (Lot 4) should drain primarily to the west along the "swale" on Mayton's property. The Plan provided that the remainder of the runoff from his property would drain south down the Maranto/Oliver property line into a "catch basin" and eventually into what was referred to as "Ditch Number Seven" or "Number Seven Drainage Canal, " which is located to the south of Oliver's property. Drainage along the Maranto/Oliver property line into the catch basin has not been impeded and does not appear to be at issue in this litigation. As noted above, the Drainage Plan does not call for any drainage from the Maranto lot via the disputed PVC pipe.

         ¶14. Oliver testified that in the 1990s her house flooded with approximately eighteen inches of water throughout. She did not believe that any of the other houses on her street experienced similar flooding. To avoid future flooding, she resolved to improve the drainage on her property, and she had a system of "catch basins" constructed. She added to the system as time went by, and she testified that there were approximately ten such catch basins on her lot at the time of trial. These basins drain into a "slough" behind her property and eventually into the drainage ditch or canal to the south. Oliver testified that she spent about $10, 000 on the first basins she installed in the 1990s and had incurred additional costs as she added to her drainage system. Oliver objected to her neighbors draining their lots onto her property and overloading her drainage system. Oliver denied that she had exacerbated her neighbors' drainage issues by blocking her culvert or the PVC pipe. Oliver also claimed that Mayton had exacerbated drainage problems in the cul-de-sac by putting in a pool and elevating parts of his lot with fill dirt.

         ¶15. The recorded plat for the subdivision was admitted into evidence in the chancery court. The plat shows two twenty-five foot "utility easements" along the path of the planned private road in the subdivision. As constructed, the road appears to occupy about half of the combined width of the utility easements. The plat does not provide any further description of the purpose or permissible uses of the "utility easements."

         ¶16. The warranty deed conveying Lot 5 to Oliver and her husband was also admitted into evidence. Although Oliver testified that she was unaware of the subdivision's restrictive covenants, the deed states that the "conveyance [was] subject to all rights of way and easements of record, as well as the protective covenants of record in Book 1396 at page 623 of [the Washington County] land records." As relevant to this litigation, the referenced "Declaration of Protective Covenants and Restrictions" states as follows: "Easements reserved for drainage and utility purposes, as shown upon the plat filed herewith or any other instrument of record, shall remain unobstructed."

         ¶17. There was also some evidence introduced of two five-foot drainage easements along what is at present the Oliver/Maranto (Lot 5/Lot 4) property line. A 1980 survey showing the drainage easements was attached to and recorded with a 1980 deed. The two five-foot drainage easements were also shown on a survey attached to a 2006 deed in which Oliver and her husband conveyed Lot 5 from a "family trust" to themselves. The five-foot easements are along the Oliver/Maranto property line, some distance to the south and west of the endpoint of the disputed PVC pipe.

         ¶18. On July 25, 2014, the chancellor entered an order granting the plaintiffs' request for a preliminary injunction. In her order, the chancellor stated that an "application for a preliminary injunction is a matter committed to the [chancellor's] sound discretion, " and she found that "on a balancing of the [four] factors" relevant to such an application, [2] the plaintiffs' request should be granted. Therefore, the chancellor ordered ...

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