Favre v. Jourdan River Estates

• Decision Date: 09 October 2014
• Docket Number: No. 2013–CA–01177–SCT.,2013–CA–01177–SCT.
• Citation: 148 So.3d 361
• Court: Mississippi Supreme Court
• Parties: Scott M. FAVRE ; Jefferson Parker; Cindy Favre; Constance Parker ; and Hancock County, Mississippi v. JOURDAN RIVER ESTATES and Jourdan River Yacht Club, LLC.

148 So.3d 361

Scott M. FAVRE ; Jefferson Parker; Cindy Favre; Constance Parker ; and Hancock County, Mississippi

v.JOURDAN RIVER ESTATES and Jourdan River Yacht Club, LLC.

No. 2013–CA–01177–SCT.

Supreme Court of Mississippi.

Oct. 9, 2014.

Robert B. Wiygul, Ocean Springs, Patrick W. Kirby, Heather Lynn Ladner, Ronald J. Artigues, Jr., Gary McKay Yarborough, Jr., Gulfport, attorneys for appellants.

George W. Healy, IV, Gulfport, Reed S. Bennett, attorneys for appellees.

EN BANC.

Opinion

COLEMAN, Justice, for the Court:

¶ 1. The instant matter is before the Court on appeal filed by Scott Favre, Cindy Favre, Constance Parker, Jefferson Parker, and Hancock County, Mississippi, against Jourdan River Estates, LLC. In its Final Judgment, the Chancery Court of Hancock County determined that Jourdan River Estates held a private 947–foot right-of-way starting about 400 feet north of the Heitzmann gate leading up to their tract, and it shared a public 340–foot right-of-way with the Favres, the Parkers, and Hancock County. The trial court also entered an injunction against the Favres and Parkers forbidding them from erecting any gates which would impede Jourdan River Estates and from further harassment. Finding the trial court's judgment to be well reasoned, the Court affirms its decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. The instant case follows a complex factual and procedural history, which revolves around the rights of the various parties as to Nicola Road, a road that allows the various property owners access to Highway 603. Plaintiffs Jourdan River Estates, LLC, and Jourdan River Resort and Yacht Club, LLC (together, “JRE”) are the owners of a 269–acre tract of land in a rural area in Hancock County, Mississippi. Nicola Road, the subject of the current dispute, leads from Highway 603 to the JRE tract, also known as the Mentel parcel, passing by and providing access to three parcels. One parcel, owned by Cindy Favre, lies to the west of Nicola Road and is referred to as either the Heitzmann parcel (after its previous owner) or the Favre parcel. Another parcel, to the northeast, is owned by Jeff and Connie Parker and generally is referred to as the Parker North parcel. A third parcel, also owned by the Parkers, lies just to the south of the Parker North parcel, and is appropriately called the Parker South parcel. All of the parcels except Parker South were conveyed from Cinque Bambini, an ancestor in title, sometime in 1986. The following graphic accurately shows the various parcels:

In 2007, JRE proposed the construction of 1,000 condominium units and a 130–slip marina on its land along the Jourdan River. The county later approved a lesser plan of 472 condominiums. However, two owners of the adjacent tracts, Scott and Cindy Favre on the west and Jefferson and Constance Parker on the east, were strongly opposed to the construction. Together, the landowners filed a lawsuit to halt the development, but the suit was unsuccessful. See Favre v. Hancock County Bd. of Supervisors, 52 So.3d 463 (Miss.Ct.App.2011). Over the course of the first lawsuit, the dispute between JRE and the landowners escalated, resulting in JRE's request in the instant case for declaratory judgment about which portions of Nicola Road are public as well as the easement rights as to the road. JRE also requested an injunction against the landowners, requiring them to forever remove the gate blocking access to Nicola Road.

¶ 3. The instant debate over who has the rights to the various portions of Nicola Road first originates from the 1986 and 1989 conveyances from Cinque Bambini to the ancestors-in-title of the JRE tract, the Favre parcel, and the Parker North parcel. In order to provide each newly created tract with access to the highway, Cinque Bambini created an easement that begins at the northern end of Nicola Road and runs about 1,200 feet north to the JRE tract. JRE claims that approximately the first 340 feet of the easement is a “joint right-of-way” shared by JRE, the Favres, and the Parkers, but the last 947 feet is an “exclusive right-of-way” for the sole use of JRE. The two Nicola Road rights-of-way are described in the deeds and in subsequent surveys as sixty-foot-wide rights-of-way. JRE notes that Cinque Bambini never conveyed the servient estate (i.e., the right-of-way) in any of the deeds creating the parcels; therefore, none of the current owners owns the 340–foot right-of-way.

¶ 4. The dispute is further complicated by the existence (or lack thereof) of two gates on Nicola Road: the Darwood Point gate (or the “new gate”) and the Heitzmann gate (or “telephone pole gate”). Numerous witnesses testified as to both gates and often contradicted one another. Harry Kelleher stated that there was a gate at the location of the current Darwood Point gate in the early 1960s, and it was generally kept locked. Several witnesses stated that, historically, there had been a gate near or in the same spot as the current Darwood Point gate; however, the witnesses disagreed on whether the gate was locked, merely closed, or left open. The trial court noted that several of the witnesses have clear bias against JRE because they do not want the area developed commercially.

¶ 5. The trial court, however, found that the Darwood Point gate, at its present location, was not in existence prior to 2007. Ronald Mentel, who previously owned the JRE tract, stated in his deposition that the first time he saw the “new gate” was after Hurricane Katrina, which took place in 2005. Jefferson Parker admitted that the Darwood Point gate was knocked down by Hurricane Katrina and not restored until 2007, but he also testified that the gate was there from at least 1998 until 2005. No witnesses contest that from 2005 to 2007, there was no Darwood Point gate. Parker gave Favre permission to erect the new gate, which he did in September 2007.

¶ 6. Between the Darwood Point gate and the Heitzmann gate is an area roughly forty-four feet wide and twenty-three feet long described as the “bottleneck.” The bottleneck creates additional problems as Cinque Bambini described the right-of-way as sixty feet wide when it was created for the JRE track, but the bottleneck is roughly fifteen feet less. The Favres and Parkers argue that the descriptions in their deeds are clear and unequivocal and that the deeds provide boundaries for the “margin of the right of way” in the bottleneck. JRE attempted to stipulate that the right-of-way in the bottleneck was 43.87 feet wide; however, the stipulation was never entered, for reasons that are unclear to JRE. When the issue was submitted to the trial court, the trial court concluded that the right-of-way was sixty feet wide, but, prior to entry of judgment, the court suggested the parties attempt to agree on the metes-and-bounds description for the right-of-way in the bottleneck.

¶ 7. The Heitzmann gate is the second gate, north of the Darwood Point gate, and it falls within the 340–foot right-of-way. Kenneth Allison's uncontradicted testimony is that his father-in-law constructed the Heitzmann gate sometime after Allison purchased the Heitzmann parcel in 1994 (the parcel was later bought by the Favres). The trial court found that the Heitzmann gate was a hindrance to the development of JRE's land and development of the easement right-of-way. It further found that, while both landowners had the right to use the right-of-way for ingress, egress, and utilities, an adjacent landowner did not have the right to erect a gate.

¶ 8. Putting aside the question of easements, the parties also dispute the status of Nicola Road as to being a public or private road. In March 2007, before the current Darwood Point gate was rebuilt by Scott Favre, Hancock County paved Nicola Road, stopping at the Heitzmann gate. Thus, the county paved roughly the first sixty-eight feet of the 340–foot right-of-way lying between the Darwood Point gate and the Heitzmann gate. Huey Stockstill, who paved the road for the county, testified that he simply followed the normal practice of beginning and ending where the county instructs him, which, here, was up to the Heitzmann gate. Scott Favre independently decided to utilize Stockstill's paving service and paid him to pave his driveway. There exists no disagreement among the parties that Nicola Road is a public road from Highway 603 to the Darwood Point gate. Rather, the disagreement is the status of the road between the Darwood Point gate and the Heitzmann gate and after the Heitzmann gate up to the private, 947–foot easement belonging to JRE. The area in dispute is referred to as the 340–foot right-of-way.

¶ 9. The trial court found that Nicola Road historically had been used as a public right-of-way through the 340–foot right-of-way, beyond the Heitzmann gate, and up to the southern boundary of JRE's 947–foot easement. The court in large part based its finding on the survey of the land performed by Gene Paul Stenum. Stenum's firm had long been the surveyor of choice dating back to the original conveyance from Cinque Bambini to the ancestors-in-title of the JRE, Favre, and Parker North tracts. The trial court also found that the intent of the parties to the original conveyance contemplated a full-sized public road, as the plain language provided that the easement allowed for ingress, egress, and utilities, which is evidence that a public road was intended. Additionally, the trial court noted that the easement provided for a sixty-foot-wide road, which is the actual width of a full-sized road.

¶ 10. The trial court also found that Scott Favre is estopped from contending that the portion of the road paved by the county near his driveway is not public. Favre interprets the language as the court stating that his paying Stockstill to pave his driveway was direct evidence that the road past the Heitzmann gate was public. However, JRE interprets the language as the court stating that Favre was aware of and consented to the county paving the sixty-eight-foot...