Dethlefs v. Beau Maison Development Corp.

• Decision Date: 15 July 1987
• Docket Number: No. 56877,56877
• Citation: 511 So.2d 112
• Parties: Sylvia A.B. DETHLEFS and Opal Brandenburg v. BEAU MAISON DEVELOPMENT CORPORATION and Federal Savings and Loan Insurance Corporation, Receiver for Firstsouth Federal Savings and Loan Association 1 .
• Court: Mississippi Supreme Court

Page 112

511 So.2d 112

Sylvia A.B. DETHLEFS and Opal Brandenburg v. BEAU MAISON DEVELOPMENT CORPORATION and Federal Savings and Loan Insurance Corporation, Receiver for Firstsouth Federal Savings and Loan Association ¹.

No. 56877.

Supreme Court of Mississippi.

July 15, 1987.

Sylvia A.B. Dethlefs, pro se.

Opal Brandenburg, pro se.

Stanford E. Morse, Jr., White & Morse, Gulfport, for appellee.

Before HAWKINS, P.J., and ROBERTSON and ANDERSON, JJ.

HAWKINS, Presiding Justice, for the court:

Sylvia Dethlefs and her mother Opal Brandenburg appeal from a chancery court decree of the 1st Judicial District of Harrison County ruling that they had no easement rights in an underground conduit that drained their land. The chancellor also awarded defendant Firstsouth Federal Savings and Loan Association damages on its slander of title counterclaim. Finding Dethlefs had a justiciable claim, we reverse the imposition of damages; and we affirm the chancellor's ruling that no easement existed.

FACTS

This lawsuit involves two lots in Long Beach. Highway 90 runs east and west along the Gulf Coast. White Harbor Road, which once was under water, is a built-up road running north off Highway 90.

Just west of White Harbor Road is a lot approximately 1,000 feet long north and south and 300 feet wide east and west. Adjacent to and just west of this lot is a lot approximately 2,200 feet long north and south and 75 wide east and west. Both these lots have the Gulf as their south border, subject, however, to the right-of-way for Highway 90. The record shows that at least as far back as 1946, when a Mrs. Mary Lary (later Mary Lary Walters) acquired the west lot, there was an artesian well on the property. This well drained into a small artificial pool, approximately three feet deep. The pool, in turn, when it overflowed, drained into a culvert in the west lot through the east lot out into a ditch on the west side of White Harbor Road, which in turn drained into a culvert running under the road and into the Gulf sound. There were at least two masonry catch basins, or clean-out plugs at the land surface over the culvert. At least one was located on the east lot, and the other on the west lot. When Mrs. Lary purchased the west lot, she operated a nursery using the water well and pool. There was no municipal or central water supply system servicing this area at the time, and neighbors used the well for their supply of drinking water. There was also an artesian well on the east lot which had not been used for a number of years.

There was a restaurant located on the east lot until the early 1950s, when the Pine Lodge Tourist Court was also constructed on it.

For an eleven-year period, ending in 1966, Arthur Henderson, Jr., was an employee of the Pine Lodge Court, and recalled that there was a drain from the well on the west lot under the east lot, and he had cleared two catch basins on the Pine Lodge property a number of times. They had metal grills over them, and were visible, although not noticeable.

For a nineteen-year period, beginning in 1957, Robert Wells was an employee at the Lary Nursery. He knew the well drained from the pond through the underground culvert running across the Pine Lodge lot. There were two or three catch basins on the Pine Lodge lot with metal covers. Occasionally he would go over onto the east lot and clean them out. There was also a clean-out plug on the Lary property which he periodically cleaned. Hurricane Camille in September, 1969, destroyed the Pine Lodge Court, after which the lot was left untended. The nursery business continued, however, and Wells saw that the drain continued to function. Wells left the nursery employment in 1975.

Neither Wells nor Henderson had any idea about who originally installed the pipe, or about what agreement was made between the parties who installed the pipe. In the entire period when Wells and Henderson were employed, the pool never overflowed, always draining through the culvert into the White Harbor Road ditch.

The Lary Nursery property was purchased by Dethlefs and her mother Brandenburg in June, 1979. Mrs. Lary (Walters), the seller, showed Dethlefs the clean-out drain. Because of the bushes and overgrowth on the Pine Lodge property, the two women did not look for the clean-out basins, but Dethlefs was taken by Lary to the location of the opening of the drain on White Harbor Road, and shown how the water drained through the culvert, into the ditch and then further east under the road into the sound. Even though she had not cleaned out any surface basin on the Pine Lodge property since Camille, Mrs. Lary had not had drainage problems.

Initially Dethlefs and Brandenburg had no drainage problems either. In February, 1982, Dethlefs noticed a "sold" sign on the Pine Lodge property, following which she went to the realty broker to inform her of the drainage easement she considered she had in order that the broker in turn could notify the buyer of the property of this fact, or claim. The broker, however, refused to identify the purchaser.

The property was purchased by Dennis D. Stepanik and Sharion W. Shumock, two of a group of real estate developers who proposed to build and sell condominiums on the east lot. The group employed Robert L. Taylor, a Gulfport attorney, who prepared articles of incorporation of Beau Maison Development Corporation, and on October 30, 1982, the property was conveyed to the corporation.

Beau Maison employed B & L Construction Company of Long Beach to clear off the lot. Dethlefs learned from Charles Bryant of that company the identity of Shumock. She also learned that Taylor was the attorney for the corporation. On November 12, 1982, Dethlefs wrote a letter to the construction company giving it permission to clean the property line between the lots, and also stating that she expected the underground drain would not be disturbed.

There was a public groundbreaking ceremony in November for the development, at which time Dethlefs accosted Taylor, and told him about her "easement," and also pointed out its location. According to her, Taylor told her the buyers were not responsible for any easement, and for her to close off her well and drain the pond. Taylor did tell her no easements showed of record, but his testimony varied from Dethlefs'. According to Taylor, he told Dethlefs that day that he would contact the contractor to review the property. Later, Taylor went to the Pine Lodge property with Shumock and a "Mr. Alford," the project engineer. Taylor testified they could find no sign of a drain, and Alford told them he found no physical sign of one, and that the natural drainage of the land was to the west. Taylor also testified Shumock told him later that he had promised Dethlefs his company would try to install a pipeline to drain her property.

On December 4, 1982, Dethlefs noticed the pool overflowing and on December 10, 1982, representing herself and Brandenburg, filed a motion for a temporary restraining order in the chancery court of the First Judicial District of Harrison County against Beau Maison. Dethlefs holds a realty broker's license, but is not an attorney. She alleged that a drainage easement consisting of underground pipes had existed for more than 36 years, and was a necessary function to drain the pond. She further alleged that if the defendant was not restrained from interfering with the drain, it would cause irreparable harm to their property. On the same day, again representing herself and Brandenburg, she filed a complaint in the circuit court of the First Judicial District of Harrison County against Beau Maison for $200,000 actual and $600,000 punitive damages for interfering with her drainage easement.

On December 16, 1982, the chancery court denied the motion for a temporary restraining order, and no appeal was taken. On February 3, 1983, the circuit judge entered a summary judgment for the corporation from which Dethlefs appealed to this Court. We reversed the summary judgment because there were undetermined factual issues. See: Dethlefs v. Beau Maison Development Corp., 458 So.2d 714 (Miss.1984). It should be noted here that in all proceedings in the trial courts and in this Court Dethlefs has represented herself, and under a general power of attorney, represented her mother Brandenburg.

In November Beau Maison executed a note and deed of trust to Firstsouth Federal Savings and Loan Association of Pine Bluff, Arkansas, for $5,400,000 to finance development of the property, and Firstsouth made an advance of $727,650. Beau Maison subsequently defaulted and went bankrupt. Firstsouth foreclosed in chancery, and at a commissioner's sale on April 16, 1984, Dethlefs appeared and objected.

On July 9, 1984, Dethlefs filed a complaint in the chancery court of the First Judicial District of Harrison County making essentially the same factual allegations as to her claim to an easement as in her motion for a temporary restraining order. She also alleged that subsequent acts by the defendant Beau Maison stopping the drain had caused overflowing of her property, which had never happened before. She prayed that Beau Maison be required to repair or replace their "drainage easement" and asked for other equitable relief.

On the same date Dethlefs filed a motion to add Firstsouth Federal Savings and Loan Association of Pine Bluff, Arkansas, as a party defendant. The motion alleged that the property had been sold to Firstsouth at a commissioner's sale on April 16, 1984. The motion also alleged that Dethlefs had on January 18, 1983, filed a lis pendens notice in reference to the circuit court action (then on appeal to this Court), and that on July 9, 1984, a lis pendens notice had been filed in reference to the current chancery court action. On July 18, 1984, the chancellor entered an order authorizing the joinder of Firstsouth as a party defendant.

On March 26, 1985, Dethlefs filed an amended complaint charging that all...