Biddix v. McConnell

• Decision Date: 15 September 2005
• Docket Number: No. 2004-CA-00150-SCT.,2004-CA-00150-SCT.
• Citation: 911 So.2d 468
• Parties: Martha L. BIDDIX, Executrix of the Estate of James R. Biddix, and Gregory L. Williams v. Mr. and Mrs. Cyrus McCONNELL, Jr. and Mr. and Mrs. Clifton L. Noel.
• Court: Mississippi Supreme Court

911 So.2d 468

Martha L. BIDDIX, Executrix of the Estate of James R. Biddix, and Gregory L. Williams v. Mr. and Mrs. Cyrus McCONNELL, Jr. and Mr. and Mrs. Clifton L. Noel.

No. 2004-CA-00150-SCT.

Supreme Court of Mississippi.

September 15, 2005.

COPYRIGHT MATERIAL OMITTED

Henry P. Pate, Eddie C. Williams, Pascagoula, attorneys for appellants.

John Major Kinard, Pascagoula, Kevin M. Melchi, attorneys for appellees.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. In this real estate easement dispute between the operators of a golf course and adjacent homeowners, the operators appeal from a chancery court judgment compelling them to remove a concrete golf cart path and out-of-bounds markers placed on the homeowners' property. Because the chancellor correctly found that the easement granted by the subdivision's protective covenants did not authorize the path or the markers and that the operators failed to prove a prescriptive easement, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Mr. and Mrs. Cyrus McConnell and Mr. and Mrs. Clifton Noel make up two neighboring households, each owning and residing on land abutting the St. Andrews Golf Course via the backyards, or the residences' west sides. The neighborhood in question is called "St. Andrews" and is located in Ocean Springs, Mississippi. Cyrus McConnell testified that their family had lived in their home, located in St. Andrews, for twenty-nine years. Susan Noel testified that their family had lived there for eleven years. Pursuant to the subdivision's protective covenants, the golf course retains an easement of twenty-five feet onto the McConnells' and the Noels' land from the course on the west. This easement is to be used for utilities and access to those utilities under the plain language of the covenant. The McConnells and the Noels have both planted and maintained shrubbery, as natural barriers, on the "home side" of the easement in order to help keep traffic from the golf course out of their respective yards. These barriers would have been placed closer to the golf course, but that would have interfered with the right of the golf course operators, James R. Biddix and Gregory L. Williams, to enter that land for utility purposes. Also, Biddix and Williams could have rightfully removed any landscaping, fencing, etc. that was erected within the easement or on the golf course side of the easement should the need arise to improve or maintain utilities in that area.

¶ 3. In 1998, Biddix and Williams installed a concrete golf cart path across the land of the McConnells and the Noels and the easement in question, and the McConnells and the Noels claim this was done in violation of the plain language of the covenant. Prior to the concrete path, a path of cinder, shells, gravel, and dirt existed, and its location has fluctuated through the years, not remaining static. Prior to the concrete path, there was no defined path through the Noels' yard, and subsequent to the construction of the concrete path, the McConnells suffered significant drainage problems. Additionally, Biddix and Williams have continually placed out-of-bound markers and painted out-of-bounds lines in the yards of the McConnells and the Noels. Again, the placement of these markers has fluctuated greatly over the years, as there is no set location for these markers. When these markers were placed in the yards of the McConnells and the Noels, they were promptly removed by them in protest and with the full knowledge of the golf course. The complaints over these markers began in the 1980's and continued until approximately 1997, prior to the construction of the concrete path.

¶ 4. Similarly, after the construction of the concrete path, Biddix and Williams began painting out-of-bounds lines, as mentioned previously. Prior to the construction of the cart path, there were no painted lines in the yard of the Noels. After the construction of the cart path, Biddix and Williams began painting out-of-bounds lines on the property of the McConnells and the Noels. These lines were openly rejected by the McConnells and the Noels, and McConnell painted over them with green paint. Then, Biddix and Williams would come out and paint over the green paint with white paint, knowing that McConnell objected to the lines being there. Nothing in the record suggests that these out-of-bound markers or lines were ever placed in the exact location after being removed by the McConnells and the Noels.

¶ 5. On January 20, 1999, the McConnells and the Noels filed their complaint in the Chancery Court of Jackson County, Mississippi, alleging that Biddix and Williams, the golf course operators, placed a "permanent, paved golf cart path over and across" their land and that they also placed out-of-bounds markers and other designators without their consent. The McConnells and the Noels sought injunctive relief, monetary damages, attorney's fees, and equitable relief. On June 9, 1999, Biddix and Williams filed their answer and also asserted a counterclaim, sounding in adverse possession and prescriptive easement. On December 6, 2001, James R. Biddix died, so on January 2, 2002, the court entered an order for substitution of parties. The court substituted his widow and executrix of his estate, Martha L. Biddix, as successor defendant to James R. Biddix, and the court also acknowledged Martha L. Biddix, in her personal capacity, as defendant.

¶ 6. Before the trial on the merits, the chancellor viewed the property at issue. Following a trial, on August 8, 2003, the chancellor entered a judgment granting a permanent injunction, ordering the defendants to remove the offending golf cart pathway and "any out of bounds makers" within "sixty (60) days following the deadline for any appeal of this action." The chancellor also denied any award of monetary damages and ordered that the property of the plaintiffs "shall not be left in a state of disrepair by the Defendants and all debris existing therefrom shall be removed." Accordingly, Biddix and Williams timely filed a notice of appeal, and this appeal ensues.

ANALYSIS

I. Did the Chancellor Err by Determining That the Cart Path Was Not a Proper Use of the Easements?

¶ 7. "The initial question of whether a contract is ambiguous is a matter of law." Rotenberry v. Hooker, 864 So.2d 266, 269 (Miss.2003). We review question of law de novo. G.B. "Boots" Smith Constr. Corp. v. Cobb, 860 So.2d 774, 776-77 (Miss.2003). However, if the contract is found to be ambiguous, the subsequent interpretation is a finding of fact. Rotenberry v. Hooker, 864 So.2d at 269. This Court's "review of a chancellor's findings of fact is the manifest error/substantial evidence rule." Miss. State Tax Comm'n v. Med. Devices, Inc., 624 So.2d 987, 989 (Miss.1993).

¶ 8. Biddix and Williams aver that the easement in question is unambiguous and permits the golf cart path and out-of-bounds area. The recorded plat of the St. Andrews Subdivision shows a twenty-five (25) foot rear easement retained by the subdivision owners, Biddix and Williams. At issue in this case is one of the protective covenants which pertain to this easement. The language of the Amendment to Protective Covenant No. 16 provides:

[t]he undersigned expressly reserves for itself, its successors, and assigns, a 5 foot easement along the front and rear line (except all line contiguous to golf fairways along with the undersigned reserves hereby a 25' easement) and a 5' easement along the sidelines of each and every lot for the installation of utilities or other uses by it deemed to be necessary for the service of the property in any walls, fences, paving, planting, or other improvements placed thereon by the owner of the property on which the easement lies shall be removed, if required, by the undersigned or its assigns, without compensation to the owner of such lot. This reservation includes the right to re-enter upon any easement for the purpose of locating, erecting, maintaining and constructing any drain, culvert, sanitary or storm sewer, water main, electric and telephone lines, and other utilities; the undersigned specifically reserving the right to assign any and all easements hereby reserved.

Biddix and Williams assert that "[n]ecessary for the service of the property" in the protective covenants clearly means the golf course. They state that if the covenants were not referring to the golf course, "then there was no need to differentiate between lot lines abutting the golf course versus all other lot lines in the same sentence." Biddix and Williams claim that "[a]ny other interpretation unreasonably strains logic and credulity."

¶ 9. The McConnells and the Noels contend that the easement is only for installing or servicing utilities, and since the golf cart path is not needed for these purposes, it should be removed. At trial, Cyrus McConnell testified that there are utility easements lying within the twenty-five foot easement in the rear of his lot. He stated that "[t]here is a television cable easement, in the easement. There is a telephone line in the easement, and I think there is some power lines in the easement." He also stated that there were underground utilities as well. He also testified that up until the concrete golf path was installed, there were never any painted lines on his shrubbery or property. Susan Noel testified that prior to the installation of the golf cart path, there were no painted lines on the ground inside her property line that purported to be designate an out-of-bounds marker. McConnell stated that "[t]hey [the golf course owners] have painted this line here two or three times . . . they would come back and I would take green paint and paint out their line and maybe a month later they would come back and paint it again. And then I would get green paint and I would paint over their line again. . . ."

¶ 10. Regarding the out-of-bound markers, McConnell testified that "over the years, they have attempted to put...