Dunaway v. Busbin

• Decision Date: 26 November 1986
• Docket Number: No. 56109,56109
• Parties: M. Mikal DUNAWAY, a/k/a Richard Shelton Brown, Patricia Diane Dunaway, Tylertown Bank, Branch of First National Bank of Jackson, Service Finance Corporation of Columbia, Danny Smith, Danny R. Boyd and Angela L. Rushing Boyd v. Marilyn R. BUSBIN and Oliver C. Rushing.
• Court: Mississippi Supreme Court

Page 1218

498 So.2d 1218

M. Mikal DUNAWAY, a/k/a Richard Shelton Brown, Patricia Diane Dunaway, Tylertown Bank, Branch of First National Bank of Jackson, Service Finance Corporation of Columbia, Danny Smith, Danny R. Boyd and Angela L. Rushing Boyd v. Marilyn R. BUSBIN and Oliver C. Rushing.

No. 56109.

Supreme Court of Mississippi.

Nov. 26, 1986.

M. Mikal Dunaway, pro se.

Joseph M. Stinson, Tylertown, for appellee.

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

ROBERTSON, Justice, for the Court:

I.

This civil contempt proceeding between two adjoining homeowners has arisen from the fact that the parties to the west constructed an eight foot fence and obstructed the access of their neighbors to the east to an 18 foot right-of-way the former having previously been enjoined to leave open and clear for driveway, street and other similar purposes. Beneath the sound and fury emanating from the record and briefs of counsel, the core question before us on appeal is whether the evidence supports a finding that the enjoined parties knowingly violated the previous injunction. We hold that the Chancery Court's adjudication of contempt is supported by substantial evidence and affirm.

II.

M. Mikal Dunaway and Patricia Diane Dunaway, husband and wife, own a tract of land in Tylertown, Mississippi, the southern boundary of which is Holmes Street. Marilyn R. Busbin owns an adjacent tract upon which she lives with her husband, Pete Busbin. The western boundary of the Busbin property is along a line which forms the eastern boundary of the Dunaway property. The Dunaways' residence faces in an easterly direction toward the Busbin property. The Busbin residence faces west toward the Dunaway property.

The deed under which the Dunaways hold title reserves a right-of-way between parallel lines across the eastermost eighteen feet of the Dunaway property. This north-south right-of-way is 100 feet in length. The Dunaways obstructed this right-of-way in consequence of which Marilyn R. Busbin and her predecessor in title brought suit. On August 7, 1984, the Chancery Court of Walthall County, Mississippi, entered its final judgment holding that the Dunaway property was burdened with the eighteen foot right-of-way along its easternmost side, that the right-of-way was dedicated to driveway, street and access uses, and that Busbin had a legal interest in and right to use the right-of-way for those purposes. The Court further adjudged that the Dunaways

have wrongfully obstructed the right-of-way, and that they should be, and are hereby, enjoined to forthwith remove all obstructions therefrom and to keep and leave the same open and clear for its intended use.

The Dunaways filed no motion for a new trial or appeal with respect to the August 7, 1984, judgment, and the same has now become final.

Shortly after entry of the judgment, the Dunaways built the fence which is the subject matter of the instant contempt proceeding. It appears that Mikal Dunaway studied the previous judgment carefully and consulted counsel regarding its meaning. Thereafter he constructed a wooden plank fence some six to eight feet in height along the northern 88 feet of Busbin's western boundary and the Dunaways' eastern boundary. The fence was entirely upon the Dunaways' property, but so is the right-of-way. The fence obstructed access to the right-of-way from the east as is reflected on the exhibit made an Appendix to this opinion. Specifically, this fence prevented the Busbins from direct east-to-west access from their property onto the eighteen foot right-of-way. The Dunaways built a wooden gate at the southern end of the fence. The gate could be opened without inordinate difficulty. The southernmost twelve feet of the right-of-way in issue remained available to the Busbins for their unobstructed use. Their access to the northern 88 feet of the right-of-way could be obtained only by going through the gate to the south or going around the fence to the north leaving their own property and entering the northern end of the right-of-way.

On August 20, 1984, ¹ Busbin filed a motion with the Chancery Court seeking an order holding the Dunaways in contempt for violation of the August 7, 1984, final judgment. The matter came on for hearing before the Chancery Court on September 6, 1984, and on that date the Chancery Court found that, with knowledge of the contents and terms of the prior judgment, the Dunaways

obstructed the right-of-way and the Plaintiffs' [Busbin, et al] access thereto by constructing a wooden fence upon and along the north 88 feet on the east side thereof and wooden gates across the same.

The Chancery Court further found that the Dunaways'

construction of the fence and gates ... was wilful and contumacious and in violation of the terms of the aforesaid final order,....

The Dunaways were accordingly adjudged in contempt. The sanction imposed by the Chancery Court was modest. The Dunaways were merely ordered to remove all fences and gates from the aforesaid right-of-way within ten days.

III.

What--and all--this Court has before it this day is an appeal of the September 6, 1984, judgment that the Dunaways are in civil contempt for the construction of the fence and gates and the obstruction thereby caused to Busbins' access to the right-of-way. Much of the argument tendered by the Dunaways, however, goes to the nature of Busbins' rights in the right-of-way. These matters were before the Chancery Court originally and were resolved and adjudicated on August 7, 1984. The Dunaways took no appeal from that order and it has become final. Much of the argument tendered in the brief of the Dunaways is the sort of argument which would have been quite proper on an appeal from the August 7, 1984, final judgment. That argument is quite out of place in the present context where we are concerned solely with whether the Dunaways are guilty of contempt for violation of the final judgment of August 7, 1984.

The objective standards by reference to which the Dunaways' conduct must here be judged no doubt emanate from our positive law regarding the relative rights of parties interested in a right-of-way. Those rights have been reduced to judgment in the form of an injunction, the operative language of which is quoted in Section II above and is our sole referent in the present context.

By analogy, we find in our reports several applications of the "unreasonable interference" standard in the context of pre-injunction right-of-way litigation. See Gano v. Strickland, 211 Miss. 511, 517, 52 So.2d 11, 12-13 (1951) (fence built on common right-of-way held unreasonable interference); Feld v. Young Men's Hebrew Association of Vicksburg, 208 Miss. 451, 459, 44 So.2d 538, 540 (1950) (dominant estate owner's particular use of private right-of-way held unreasonable interference); Clay v. Hava, 126 Miss. 823, 831, 89 So. 665, 666 (1921) (gate constructed on right-of-way held unreasonable interference with adjoining landowner's rights); Board of Trustees of University of Mississippi v. Gotten, 119 Miss. 246, 255-56, 80 So. 522, 523 (1919) (servient owner's placement of gate across of right-of-way held not unreasonable interference).

In addition, Berry v. Harvill, 215 So.2d 873 (Miss.1968), provides guidance. Berry originally brought suit against the Harvills seeking to enjoin them from building a fence enclosing the eastern half of an abandoned highway which was contiguous to the western border of their property. The Harvills filed a cross-bill seeking to prohibit Berry from entering their property without consent. The chancellor ruled for the Harvills on all...