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Hardy v. Hardy

Court of Appeals of Mississippi

March 27, 2018

WADE H. HARDY JR. AND NORMA F. HARDY APPELLANTS
v.
GENE WILLIAM HARDY, HILDA M. HARDY, FRANK LEE CONWAY JR., KAREN H. CONWAY AND JULIE LIVILLE APPELLEES

          DATE OF JUDGMENT: 10/11/2016

          MARSHALL COUNTY CHANCERY HON. ROBERT Q. WHITWELL JUDGE

          COURT ATTORNEY FOR APPELLANTS: KENT E. SMITH

          ATTORNEY FOR APPELLEES: JENNIFER LEE SHACKELFORD

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

          LEE, C.J.

         ¶1. Wade H. Hardy Jr. (Hamp) and his wife Norma appeal the Marshall County Chancery Court's decision to deny an easement by necessity to use Gene Hardy's portion of Hardy Lane. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In 1958, W.H. Hardy acquired title to an eighty-acre parcel of land in Marshall County, Mississippi. In 1977, his sons Hamp and Gene, along with their wives, purchased the eighty-acre parcel. In February 1992, Hamp and Gene divided the eighty-acre parcel equally between themselves into two forty-acre parcels. They used a road designated as "Hardy Lane" as the access point to the properties. Although the road is reflected on the Marshall County tax map, the county never adopted Hardy Lane as a county road or maintained or improved it. The parties and their families lived on these two forty-acre parcels and all mutually used Hardy Lane as the ingress and egress to their homes.

         ¶3. In 2006, Hamp and Norma moved to Aberdeen. Until that time, they had used Hardy Lane daily without incident for access to their "home place, " which refers to their home, shop, barn, silo, and RV cover positioned on their parcel. For several years after they moved, Hamp would return twice monthly to mow and otherwise maintain the property. However, due to expense and travel, Hamp discontinued visits to or maintenance of his parcel, and the land became overgrown. Eventually, Hamp expressed his desire to sell his land. To obstruct the road from use by any potential buyers, Gene parked his tractor at the end of his driveway, in the middle of Hardy Lane. Gene never denied Hamp or Norma access down Hardy Lane, but Gene expressly stated he would not grant an easement to any potential buyers. Hamp maintained that he needed the easement providing access to the home place in order to sell the land.

         ¶4. Hamp and Norma filed suit in chancery court seeking an order declaring them the owners of an implied easement or easement by necessity.[1] After a bench trial, the chancellor held, "in this case . . . there is an alternative route that [Hamp] can use and get to his property and, therefore, this is not an easement by necessity." Hamp and Norma now appeal.

         STANDARD OF REVIEW

         ¶5. This Court "will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Smith v. Pettigrew, 223 So.3d 173, 176 (¶13) (Miss. Ct. App. 2017) (quoting Wilburn v. ...


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