Paw Paw Island Land Co., Inc. v. Issaquena and Warren Counties Land Co., LLC

• Decision Date: 03 February 2011
• Docket Number: No. 2008-CA-01632-SCT.,2008-CA-01632-SCT.
• Citation: 51 So.3d 916
• Parties: PAW PAW ISLAND LAND CO., INC., and Warren County, Mississippi v. ISSAQUENA AND WARREN COUNTIES LAND CO., LLC.
• Court: Mississippi Supreme Court

51 So.3d 916

PAW PAW ISLAND LAND CO., INC., and Warren County, Mississippi

v.ISSAQUENA AND WARREN COUNTIES LAND CO., LLC.

No. 2008-CA-01632-SCT.

Supreme Court of Mississippi.

Nov. 10, 2010.

Rehearing Denied Feb. 3, 2011.

Lynn P. Ladner, John L. Low, IV, William C. Smith, III, Jackson, R.E. Parker, Jr., Clifford C. Whitney, III, Kenneth B. Rector, Vicksburg, attorneys for appellants.

Lisa Anderson Reppeto, Mark D. Herbert, Jackson, attorneys for appellee.

Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.

RANDOLPH, Justice, for the Court:

¶ 1. This appeal involves a claim of a prescriptive easement over land providing access to Paw Paw Island. Paw Paw Island Land Company ("PPILC") now owns most of the island. It alleges that its predecessors in title first used a dirt trail, which later was upgraded to a road to access the island. The road traverses land now owned by Issaquena and Warren Counties Land Company ("IWCLC"). The island, located entirely in the State ofLouisiana, was formed in 1935 ¹ when the main channel of the Mississippi River was diverted through a large tract of land in Louisiana west of the Mississippi River. The large tract of land and island were owned by Jack Wyly, a Louisiana resident, and Alluvial Lands Company, Ltd., a Louisiana corporation. The diversion caused the land severed from the large tract to be land-locked and water-locked, depending on river stages. Land-based ingress and egress was then limited to access from Mississippi, over land then owned by the Anderson-Tully Corporation ("ATCO"), IWCLC's predecessor. Paw Paw Chute, the former river channel, separates the island from the Mississippi state border. A low-water bridge was built to span the chute. When river levels are high (approximately six months each year), there is no land access to the island. PPILC also claims a prescriptive easement over a parking area and boat launch located on IWCLC's land and allegedly used by PPILC's predecessors in title. When IWCLC sought to confirm the parking area, and to relocate the boat launch and a small segment of the road, PPILC filed this action.²

¶ 2. While the PPILC-IWCLC trial was ongoing, the Board of Supervisors of Warren County ("Board") demanded by letter that IWCLC remove gates to the road to allow public access to the road, claiming it was a "county road." IWCLC immediately sought declaratory relief in the same court. The cases were consolidated for all purposes. After a trial extending over parts of four years, the chancellor entered an eighty-nine-page Memorandum Opinion and Final Judgment, including findings of fact and conclusions of law, denying a prescriptive easement in favor of PPILC and determining that the disputed portion of the road was private, inter alia. PPILC and the Board appealed.

¶ 3. We find that the chancery court's exercise of jurisdiction over the Board was discretionary, and that the chancellor did not abuse that discretion. We further find that, although the chancellor erred in evaluating one of the elements of prescriptive easement, the final judgment comports with the law of our state. Thus, we affirm the final judgment.

FACTS AND PROCEDURAL HISTORY

I. Facts relevant to both cases

¶ 4. IWCLC owns land on both sides of the Mississippi River levee, the land over which the road is situated, and a small portion of Paw Paw Island. The Board of Mississippi Levee Commissioners ("levee board") owns the levee, and also leases some land to IWCLC. The road begins at Highway 465, also called Eagle Lake Road. The first segment (0.13 miles) runs west from the highway to a gate southwest of the levee. It is a public road without dispute. The road continues west and south (0.47 miles) over IWCLC land to the low-water bridge at Paw Paw Chute. IWCLC bought the property in 2002 from ATCO, a timber company, which had owned the property since 1928. ATCO leased hunting and fishing rights to Big Rack Hunting Club and Oak Ridge Hunting Club. PPILC now owns nearly all of the island, having bought it from another timber company, Crown Zellerbach ³("CZ") in July 1995. CZ leased hunting and fishing rights to Paw Paw Island Hunting Club (PPIHC) beginning in 1969. CZ terminated the lease on January 20, 1994. In 1994-95, CZ cut timber and hunted on the island, but PPIHC did not hunt on the island. Prior to CZ's purchase of the island in January 1969, it was owned by Wyly and Alluvial.

¶ 5. Before creation of the island, the land was part of the land mass of Louisiana and separated from ATCO's property by the main channel of the Mississippi River. When the trail, which later became a road, was first established is unknown. The record is silent as to any use of the property by Wyly and/or Alluvial before and after the island was created. One witness remembered the road was used by hunters, occasional fishermen, foresters, and game wardens as far back as 1953.

¶ 6. PPILC alleged in its complaint that it possessed a prescriptive easement created by its predecessors in title, beginning in 1934 and completed by 1944. Tim Evans, an ATCO administrator, testified that hunting had occurred on the island since 1934 and that hunters had used the road to get to the island since that time. He testified that PPIHC later built a boat ramp on ATCO's property. He knew of no permission sought from or granted by ATCO, contrary to the testimony of some hunting-club members. ( See infra Bankston testimony ¶ 10). Earnest Wright testified that he first hunted in the area in 1953 along with his father, a PPIHC member, and that there was a gate east of the levee at that time. Wright testified that PPIHC had a clubhouse on the island in 1953, but that no buildings existed on ATCO's property. He stated that PPIHC built and maintained the bridge. Wright recalled nine other members of the club who used the boat ramp to reach the island.

¶ 7. Bobby Herrington testified that he hunted on the island as a member of PPIHC, beginning in 1963. He recalled that his father was president of PPIHC in the mid-sixties when electrical service was provided to the island via power lines along the road. He recalled the club's efforts to improve the bridge. Robert Reeder, a former PPIHC member, testified that he hunted on the island beginning in 1963 along with his father and grandfather, both also PPIHC members. He recalled using the boat ramp when it was dirt, then gravel and later, concrete. He testified about improvements made to the bridge, road, and culverts. E.C. Burkhardt, an ATCO forester, testified that he visited the island in 1965 and that it was being used for hunting at that time and that PPIHC had a clubhouse there.

¶ 8. Although ATCO had hunting lessees, Oak Ridge and Big Rack hunting clubs, no clubhouse was built on ATCO property until 1968. That same year, the gate east of the levee was moved west of the levee, to a point where the current gate is located. Moving the gate was a joint project of Big Rack and PPIHC. John Lindigrin, a former member of PPIHC and now an officer and shareholder of PPILC, testified that moving the gate was a mutual decision. John Byram, a Big Rack member, testified that Big Rack moved the gate because the levee board required them to allow public access to the levee. The current levee-maintenance contract between the levee board and IWCLC prohibits any gates obstructing public access to the levee and the road atop the levee. David McDonald, a Big Rack member who is now a county supervisor, testified that he took part in the gate project and that it was done to prevent vandalism by trespassers. The gate was secured by a chain with multiple padlocks on it. Unlocking any one of the padlocksreleased the chain. Earnest Wright testified that ATCO, Big Rack, and PPIHC each had a lock on the gate. No testimony was adduced that Wyly and/or Alluvial had a lock on this gate or the prior gates.

¶ 9. CZ bought the island in 1969. CZ and PPIHC improved the road and bridge. Freddie Hatcher, a CZ road-maintenance foreman, testified that, when CZ bought the property, the road was "a little old narrow [dirt] trail" with gravel in some spots. He stated that CZ graveled and widened the road from the levee to the island, pulled ditches, sloped the banks, and improved the bridge. Hatcher said he worked on the road annually through 1994, spending six to eight weeks a year there during CZ's timber operations. Pat Weber, a CZ manager, testified that the bridge was a "very crude low water bridge." Lindigrin and others testified that CZ improved the bridge by installing a flatbed rail car. Carl Clay, who later did road and bridge maintenance work for PPILC, testified that he crossed the bridge with his road grader. Since then, at least ten mobile homes have been transported across the bridge.

¶ 10. CZ and PPIHC also improved the boat launch and parking area. Weber testified that the boat launch and parking area already had been in use when CZ bought the property. Bobby Bankston, a PPIHC board member, testified that he and his brother, also a PPIHC member, built the concrete boat ramp using club funds. Bankston stated that Weber, a CZ manager, approved the project, including the location of the ramp.

¶ 11. Evidence was offered that, during the time the two properties were owned by timber companies, usage of the lands was governed by the timber-industry custom of neighborly courtesy. Evans testified that both companies crossed the property of the other without any formal agreement and that each maintained the road as necessary to "move wood." Jeff Portwood, a CZ manager, testified that the companies and their hunting lessees used the same road, and that each of them had a lock on the gate. PPILC stipulated that ATCO and CZ had allowed each other to use the road. IWCLC also presented evidence that some PPIHC members in the 1970s and 1980s believed their use had been permissive.

¶ 12. In 1994, CZ terminated PPIHC's hunting lease. No hunting and fishing leases for any time period were introduced into evidence. PPIHC's...