OF JUDGMENT: 08/01/2016
COUNTY CHANCERY COURT HON. JANE R. WEATHERSBY TRIAL JUDGE
ATTORNEY FOR APPELLANT: KENNETH B. RECTOR
ATTORNEY FOR APPELLEES: KEVIN E. GAY
KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
Mississippi Sand Solutions, LLC ("MSS") appeals the
Warren County Chancery Court's decree that MSS does not
have an easement of any type across property owned by a group
of heirs, the "Fisher Property." MSS's
predecessors used the alleged easement across the Fisher
Property to access another parcel of land from which they
mined gravel and sand throughout the years. The Fisher heirs,
who owned the Fisher Property, claimed that this access was
by permission, evidenced by lease agreements with MSS's
predecessors. As a result, the Fisher heirs filed a
declaratory action against MSS, seeking to have the alleged
easement declared invalid. After a trial, the chancellor
ruled that MSS did not have an easement across the Fisher
Property. MSS now appeals. Given the standard of review and
the sufficient evidence in the record, we affirm the
AND PROCEDURAL HISTORY
The parcel of land subject to this suit is a 99-acre tract in
Warren County, Mississippi. Membsey and Maggie Fisher
purchased the Fisher Property in 1935. To the east, the
Fisher Property is bordered by a tract of land that is owned
by C.J. Fisher (the "C.J. Fisher Property"). To the
west, the Fisher Property is bordered by a parcel of land
that was purchased by MSS in 2014 (the "MSS
C.J. Fisher Drive is a private road that runs westerly from
Mississippi Highway 27 across the C.J. Fisher Property. The
road continues from the C.J. Fisher Property across the
Fisher Property and into the MSS Property. The use of the
portion of C.J. Fisher Drive that crosses the Fisher Property
is the subject of the easement dispute on appeal. Unless
otherwise noted, our reference to C.J. Fisher Drive is that
portion of the road which crosses the Fisher Property.
The Fisher heirs were the heirs of Membsey and Maggie Fisher.
The seven initial Fisher heirs were C.J. Fisher, Maggie Lee
Otis, Frank J. Fisher, Mabel Peterson, Horace M. Fisher,
Membsy Fisher and James M. Fisher. Membsey predeceased
Maggie, and Maggie passed away in 1962. Upon Maggie's
death, Peterson was appointed as the administratrix of the
Fisher Estate. The Fisher heirs also include Robbie Jean
Holmes Ware and Dennis Roy Holmes-the children of Peterson-as
well as the other six initial heirs' children who were
joined in this action (collectively, the "Fisher
Throughout the years, W.J. Runyon used C.J. Fisher Drive to
access the MSS Property (before it was owned by MSS) and the
Fisher Property to mine gravel from both properties. Ware
testified that Peterson handled all of the leases concerning
the Fisher Property. She maintained that she saw
"papers" and a lease agreement that provided that
Runyon could remove sand and gravel from the Fisher Property.
The chancellor, in the final amended decree, noted the
existence of two separate mineral leases (one before November
1967 and one in 1968) between various Fisher Heirs and
Runyon. Ware also testified that the Fisher Estate
received income from the leases from Runyon throughout the
years. Janice Turner, one of C.J. Fisher's daughters,
testified that her father also received compensation from
At trial, Runyon's son-in-law John Frazier also testified
that Runyon used C.J. Fisher Drive to transport gravel from
the pits on the MSS Property across the Fisher Property. To
weigh the gravel trucks, Runyon installed scales on C.J.
Fisher Drive on the Fisher Property. Near the scales, Runyon
had a small office with fuel pumps to fuel the trucks. During
busy times, one of Runyon's employees was stationed
Frazier agreed that Runyon did have a lease on the Fisher
Property that allowed Runyon to mine sand and
gravel. According to Frazier, the only entities to
use the road from 1972 to 2002 were Runyon and the Fisher
Heirs. To Frazier's knowledge, the Fisher Heirs never
objected to Runyon's use of the road.
Pete Buford claimed to have purchased the MSS Property in
2002. He admitted, though, that the property was placed in
the name of his "business partner" R.O. Henley, who
was Buford's nephew. The 2002 deed reflects that
Runyon's widow transferred the MSS Property to
Henley. While Buford claimed that he "was
paying the notes" and that he paid the purchase price
for the MSS Property, he admitted that there was no legal
document to show his claimed ownership interest in the MSS
Property until 2008. Buford also admitted that he did not
disclose his claimed interest in the property to his wife
during their divorce because he "didn't want to
muddy the waters." According to Buford, Henley
"didn't do anything" other than hunt on the MSS
Property. In 2008, Henley transferred the MSS Property to
B.P. Buford, LLC.
From 2002 until 2014, Buford mined sand, gravel and dirt on
the MSS Property. During this period, he used C.J. Fisher
Drive to access the property. Buford testified that he
believed he had a prescriptive easement over the Fisher
Early in 2002, Buford testified that one of the Fisher Heirs
built a gate across C.J. Fisher Drive. He maintained that he
"snatched it down" with his truck and a chain.
Buford claimed that, fifteen minutes after he pulled the gate
down "Mr. Fisher showed up and he said, who tore the gate
down and I said I did. He said, I'm going to put it back
up. I said, well, I'm going to tear it back down."
At first, Buford maintained that the gate was on the Fisher
Property-not the MSS Property. He claimed it was somewhere
between the scales and Highway 27. On cross-examination, when
asked whether the gate was on the Fisher Property or the C.J.
Fisher Property, Buford responded, "I don't have any
idea. I assume it was between the two pieces of Fisher
property." After this incident, no one built another
James Harrell, one of Buford's former truck drivers,
testified concerning the gate incident. Harrell testified
that Buford did pull down the gate that was across C.J.
Fisher Drive about two weeks after Buford had begun
operations on the MSS Property. Harrell admitted that he was
Buford's friend and that this was the first time since
2002 that he had been asked to recollect the incident.
Harrell also testified that the gate that Buford pulled down
was the gate on his own property line.
In 2013, Pete Buford sued Fisher Heirs, seeking judicial
recognition of an easement over the Fisher Property. Buford
later dismissed the suit, but Ware testified that the
dismissal was after the Fisher Heirs met and withdrew
permission for the use of the portion of C.J. Fisher Drive
that crossed the Fisher Property to any other entities.
B.P. Buford, LLC, conveyed the MSS Property to MSS in 2014.
Under the deed of trust, MSS's obligation to pay Buford
$32 million did not begin until MSS began to sell sand and
gravel from the MSS Property.
The Fisher Heirs brought their complaint for declaratory
judgment against Buford, Buford Partners, LLC  and John Does
1-10 on August 1, 2014, in Warren County Chancery Court. The
Fisher Heirs amended their complaint on October 7, 2014, to
add MSS. They sought to have the chancery court declare the
easement over the C.J. Fisher Property and the Fisher
MSS responded with its answer and counterclaim against the
Fisher Heirs. MSS claimed an easement across the C.J. Fisher
Property and the Fisher Property by express grant or, in the
alternative, by prescription. The Fisher ...