Dethlefs v. Beau Maison Development Corp.

• Decision Date: 03 October 1984
• Docket Number: No. 55080,55080
• Citation: 458 So.2d 714
• Parties: Sylvia A.B. DETHLEFS and Opal Brandenburg v. BEAU MAISON DEVELOPMENT CORPORATION.
• Court: Mississippi Supreme Court

Page 714

458 So.2d 714

Sylvia A.B. DETHLEFS and Opal Brandenburg v. BEAU MAISON DEVELOPMENT CORPORATION.

No. 55080.

Supreme Court of Mississippi.

Oct. 3, 1984.

Sylvia A.B. Dethlefs, Opal Brandenburg, pro se.

No briefs for appellee.

Before WALKER, P.J., and ROBERTSON and SULLIVAN, JJ.

WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Harrison County wherein the motion of appellee, Beau Maison Development Corporation, for summary judgment was granted.

In December of 1982, the appellants, Sylvia Dethlefs and Opal Brandenburg, filed their declaration seeking $200,000.00 actual damages and $600,000.00 punitive damages resulting from damage to their drainage easement and property located in the City of Long Beach, Mississippi. Appellee's property lies directly east of and adjoins the appellants' property. ¹ The petition alleged the appellee, after notice from appellants of the existence of an underground drainage easement consisting of underground pipes which served to drain appellants' pond fed by a natural artesian well, proceeded to begin construction of a condominium complex which destroyed the effectiveness of the easement causing appellants' property to flood rendering it unusable and worthless.

By way of answer, the appellee denied the existence of the drainage easement and filed a motion for summary judgment pursuant to Rule 56 of the Mississippi Rules of Civil Procedure.

Affidavits filed in support of said motion alleged:

(1) No easement of any type or nature exists in the chain of title to appellee's property;

(2) No drainage ditch or pipe could be found on appellee's property after inspection; however, on the property to the west of appellants' land, there exists a concrete drain approximately 18 to 24 inches in diameter coming from the direction of their property to the west;

(3) The prior owners of appellee's land from December 1972 to October 1982 have no knowledge of any easement or underground pipes, and the natural drainage of appellants' property flows to the west.

Affidavits in support of appellants' motion to deny appellee's request for summary judgment alleged:

(1) The appellee was contacted by one of the appellants in an attempt to locate and verify the easement but she was unsuccessful in arranging a meeting.

(2) The pipe has been traced to a city drainage ditch on the west side of White Harbor Road;

(3) A concrete drain referred to by appellee does not connect appellants' property but is several hundred feet to the west of appellants' property;

(4) Robert Wells, former employee for 19 years of a nursery which had existed on appellants' property, had personal knowledge of the existence of the underground pipe system and also of three large catch-basin covers which were on appellee's property;

(5) The prior owner of appellants' property asserted the underground pipes did exist before she purchased the property in 1946 (6) The prior owner as well as Mr. Wells and an owner of nearby property asserted appellants' property did not flood prior to the construction done by Beau Maison;

(7) Russell Gould, an owner of property near the land in question, had personal knowledge of the drainage pipes existing prior to 1947; and

(8) Appellants produced various deeds transferring the property later acquired by Beau Maison in which said land was conveyed subject to any and all easements as well as the most recent deed which states: "This conveyance subject to all other restrictions, easements and reservations of record."

Following a hearing on appellants' motion February 23, 1983, Judge Vlahos granted the motion for summary judgment and dismissed with prejudice as to the appellants. The record does not show any opinion which was rendered but merely Judge Vlahos' order of dismissal.

The order of dismissal was granted pursuant to Rule 56 of the Mississippi Rules of Civil Procedure which states in part:

The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character,...