Broadhead v. Terpening

• Citation: 611 So.2d 949
• Decision Date: 31 December 1992
• Docket Number: No. 89-CA-0704,89-CA-0704
• Parties: Leo BROADHEAD and Mary L. Robinson v. Albert G. and Geraldine TERPENING and Romye E. and Stella M. Stockton.
• Court: United States State Supreme Court of Mississippi

Page 949

611 So.2d 949

Leo BROADHEAD and Mary L. Robinson v. Albert G. and Geraldine TERPENING and Romye E. and Stella M. Stockton.

No. 89-CA-0704.

Supreme Court of Mississippi.

Dec. 31, 1992.

Henry Palmer, Palmer Wright & Williamson, Earl P. Jordan, Jr., Jordan & Jones, Meridian, for appellants.

John E. Howell, Meridian, for appellees.

En Banc.

BANKS, Justice, for the court:

Here we are presented with the questions of whether the chancery court correctly determined that appellees possessed an easement of way by necessity in a private road traveling across land owned by the appellants, and if so, whether the chancery court was a proper forum for establishing an easement of way across the land of another in light of the remedy at law provided by Section 65-7-201, Miss.Code Ann. (1972). Section 65-7-201 establishes a procedure whereby private rights-of-way through the lands of another may be obtained by petitioning the appropriate county board of supervisors. We hold that the chancery court correctly determined that the appellees possessed an easement by necessity in the subject road. In addition, we hold that the chancery court was an appropriate forum for establishing such an easement of way, because Sec. 65-7-201 does not provide an adequate alternative remedy at law. Therefore, we affirm the judgment of the chancery court.

I.

This case is before this Court on appeal from the Chancery Court of Clarke County, where on August 18, 1988, the appellees, plaintiffs below, Albert and Geraldine Terpening and Romye and Stella Stockton, filed a complaint against appellants, Leo Broadhead, Mary L. Robertson, Louella Mays, defendants below, and the heirs at law of Rosetta Bennett, alleging that plaintiffs were entitled to use an alleged public road across defendant's property. The complaint alleged that the road had been maintained by a Clarke County Supervisor and had been used by the public for more than ten years prior to the erection of the gate on the property by Broadhead, preventing ingress and egress.

The complaint also alleged a prescriptive easement and, alternatively, an easement of necessity. Plaintiffs demanded a judgment which would prohibit and enjoin defendants from blocking the right-of-way or, in the alternative, a finding that the court find that an easement of necessity existed over the lands and an assessment of the fair market value of the easement. Appellants answered denying that plaintiffs were entitled to relief and moved to dismiss the complaint because there existed an adequate remedy at law.

Terpening, thereafter, on November 7, 1988, caused a petition to be presented to the board of supervisors to establish his right to use the road. Three members of the board examined the property and refused to resolve the matter on the basis that the petitioners did not comply with the notice requirements of Sec. 65-7-57, Miss.Code Ann. (1972); the road in question did not appear to be a public road; and the fact that no other parties requested the laying out of a public road. Terpening did not pursue the effort before the board and filed no appeal from its last action, which was taken on November 10, 1988.

Defendants never presented their motion to dismiss before trial. At trial, the issue arose in connection with an objection to a question during plaintiffs' case. Counsel for defendants indicated that his contentions concerning an adequate remedy at law would be presented at the close of the plaintiffs' case as a part of a motion to dismiss, pursuant to Rule 41(b), Miss.R.Civ.P. The chancellor questioned this procedure and expressed an opinion that defendants may have waived this issue by failing to present it before trial. Defendants' motion to dismiss at the close of plaintiffs' case was overruled without further comment.

The chancellor held on April 3, 1989, following the trial on that day, that the issue here involved has been legislatively committed to the board of supervisors by virtue of Miss.Code Ann. Sec. 65-7-57 et seq. (Supp.1992). The court recognized that it was not designated by statute to hear such cases, grant easements and fix damages for such easements or, even to hear appeals from the board of supervisors, which go to the circuit court. The chancellor also concluded that the evidence failed to show that the portion of the road in question was a public road by prescription or otherwise.

Nevertheless, the court found that when the Ratcliffs sold their property, which was landlocked, the sale, under our law, carried with it an easement to get to the property so sold. It held that the easement enured to the benefit of the present and subsequent owners, as well as, the original grantees:

I don't think that the law will make sense for the Ratcliffs to sell property to one party and then nobody could get to the property provided there is a right of way there. There is no travel way, and no way to get to the property, then the grantors are charged with an easement that must be located in a readily accessible place to get to and from the grantees property. If there is a travelway already located, then the grantee must use it, even though it may not be the best way, even though it may not be the shortest way, even though it may not be the smoothest way, and there certainly is no guarantee that the county or anybody else will maintain it. The grantee can use it and the grantor cannot require him to go elsewhere. That's what it says in the case of Pleas v. Thomas, 22 So. 820.

Subsequent to the opinion, the appellants filed a motion for relief from judgment and motion to alter or amend judgment, alleging discovery of additional evidence, and complained of the lack of a legal description for an easement, and the failure of the appellees to plead for the relief granted in violation of Rule 8, Miss.R.Civ.P. The court then entered a supplementary opinion and judgment directing the parties to confer and stipulate the location of the decreed easement. That judgment further provided that should the parties be unable to agree by May 19, 1989, the provisional judgment embodied within the opinion would be deemed the judgment of the court. That provisional judgment appointed a surveyor to establish the boundaries of the easement within the parameters generally described by the court.

Broadhead and Robinson filed a timely appeal to this Court. Terpening and Stockton filed a timely cross-appeal.

II

Broadhead owns a parcel of land known as the Bluegrass Park. It is a ten-acre strip of land consisting of two-acre to five-acre plots, having combined dimensions of 165 feet east to west by 2623.5 feet north to south. Defendants, Bennett heirs and Mays, own similar plots to the west of Broadhead with the Bennetts' plot adjacent to Broadhead and the Mays' plot adjacent to Bennett. Defendant Robinson owns a one-acre plot in the center of the five-acre plot adjacent to Broadhead on the east. Plaintiffs own a similar ten-acre plot adjacent to and west of the Mays' plot. All of this property was at one time owned by the Ratcliffs. It was divided in 1979 as shown on the plat annexed to this opinion as an appendix. On that plat the Broadhead property is shown as parcels 12 and 19 and the plaintiffs' property as parcels 9 and 22.

Broadhead uses his land to conduct bluegrass music festivals. He purchased the property from Willie Ratcliff around November 3, 1986. To get to his property, Broadhead travels across Mary Robinson's property, along a traveled lane, which is the "road" in question. It is clear that, historically, the county maintained this road up to a point near the old Ratcliff house, but not beyond. That house was placed on the property of the Bluegrass Park. More specifically, the witnesses stated that the road ended at a large mulberry tree, which is just before the gate to the now Bluegrass Park. The Ratcliff house was where the gate is now. Beyond this point is the subject dispute.

Broadhead asserted that he had a right-of-way or easement across Robinson's property. The point of contention is a gate on Robinson's property. It was at Broadhead's direction that the gate was placed on that property by Terpening, who did work for Broadhead from time to time. Terpening testified that he placed the gate on the property for Broadhead and was given a key to the lock. Several months later, Terpening was on his property and was bringing something out, when he decided to go around by a brush pile, instead of unlocking the gate and travelling through it as usual. Broadhead later asked for the key back "since he [Terpening] is not going to use it anymore." Terpening asserts that now he does not have a way to get on his property. If the gate were not on the property, he could drive down the road to get to his property.

It is undisputed that until April 1979 all of the property in question was owned by a single family and was undivided. It is also undisputed that the "road" ends on this property. It does not traverse the property owned by the Ratcliffs to other property or another road. Whether deemed public or private, it has always ended somewhere on the Ratcliffs' property. The Ratcliff heirs, who were witnesses, testified unequivocally that the "road" ended at the mulberry tree and that any trail beyond that was used solely by the family and those coming upon the family lands with permission. Although one witness testified that there were houses past that point that were served by the road, he had no knowledge of who resided in such houses. No other witnesses, most of whom were more familiar with the property, agreed that there were other houses.

III.

a.

Broadhead contends here that the chancellor erroneously awarded relief not prayed for in the pleadings; failed to require plaintiffs to pursue their adequate remedy at law; and, rendered a decision unsupported by substantial evidence. It is clear that no claim of an easement by prescription or that the road in question was a public road is...