Ganier v. Mansour, No. 1999-CA-00283-COA.

• Decision Date: 04 April 2000
• Docket Number: No. 1999-CA-00283-COA.
• Citation: 766 So.2d 3
• Parties: Chloe F. GANIER, individually, The Estate of Eugene B. Ganier, Eugene B. Ganier Testamentary Trusts and Lynda Lee Ganier Stock, Appellants, v. George MANSOUR, Jr., Appellee.
• Court: Mississippi Court of Appeals

766 So.2d 3

Chloe F. GANIER, individually, The Estate of Eugene B. Ganier, Eugene B. Ganier Testamentary Trusts and Lynda Lee Ganier Stock, Appellants, v. George MANSOUR, Jr., Appellee.

No. 1999-CA-00283-COA.

Court of Appeals of Mississippi.

April 4, 2000.

Rehearing Denied June 13, 2000.

Certiorari Denied August 31, 2000.

L. Carl Hagwood, Greenville, Kyle L. Holifield, Jackson, Attorneys for Appellants.

Martin A. Kilpatrick, Greenville, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.

MOORE, J., for the Court:

¶ 1. The Washington County Circuit Court reversed a decision of the Washington County Board of Supervisors to grant a particular easement to appellee George Mansour, Jr. over land owned by appellants Chloe F. Ganier, et al., and ordered an alternative easement over Ganier's land. Aggrieved by the more burdensome easement, Ganier cites the following issues on appeal

I. AS A MATTER OF LAW, SHOULD A PETITION TO ESTABLISH A PRIVATE RIGHT OF WAY UNDER MISS. CODE ANN. § 65-7-201 BE DENIED WHEN THE LANDLOCKED PETITIONER HAS NOT ATTEMPTED TO IMPROVE OR UTILIZE AN EXISTING REASONABLE IMPLIED RIGHT OF WAY TO HIS PROPERTY OVER THE REMAINING PROPERTY OF HIS GRANTOR?

II. AS A MATTER OF LAW, WHEN THE EVIDENCE PRESENTED TO THE BOARD OF SUPERVISORS ON A PETITION TO ESTABLISH A PRIVATE RIGHT OF WAY UNDER MISS. CODE ANN. § 65-7-201 IS IN CONFLICT AS TO THE EXISTENCE OF OTHER REASONABLE ROUTES OF ACCESS, WHEN MEMBERS OF THE BOARD HAVE ACTUALLY INSPECTED THE PROPERTY AND CHOSEN ONE OF THOSE OTHER REASONABLE ROUTES OVER THE ROUTE REQUESTED BY THE PETITIONER, MAY THE CIRCUIT COURT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE BOARD OF SUPERVISORS AND GRANT THE PETITIONER AN EASEMENT ON THE ROUTE REQUESTED RATHER THAN THE OTHER REASONABLE ROUTE CHOSEN BY THE BOARD OF SUPERVISORS?

III. AS A MATTER OF LAW, CAN THE CIRCUIT COURT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE BOARD OF SUPERVISORS WHERE THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THE DECISION OF THE BOARD OF SUPERVISORS TO GRANT A PRIVATE WAY ALONG AN ALTERNATIVE ROUTE FROM THE ONE REQUESTED BY THE PETITIONER?

Finding merit we reverse and remand to the Board for proceedings consistent with this opinion.

I. FACTS

¶ 2. In 1989, George Mansour, Jr. and others acquired an eighty acre tract of land ("Mansour tract") in Washington County, Mississippi, from South Rainbow Farm Corporation ("South Rainbow"). Soon thereafter, Mansour became the sole owner of the Mansour tract. South Rainbow retained a large block of land which abutted the northwest corner of the Mansour tract. Historically, South Rainbow accessed the Mansour tract from Oil Well Road, a road maintained by the county, and across South Rainbow land. The Mansour tract was not adequate for farming, but was excellent for duck hunting. Although Mansour knew the Mansour tract was land-locked, he made no effort to procure an easement for ingress and egress from South Rainbow when he purchased the property. South Rainbow sold the portion of land that abuts the Mansour tract at the northwest corner to Larry Eifling. Louise Meek Loughran owns the land which abuts the Mansour tract at the northeast corner. Land owned by Ganier completely surrounds the Mansour tract other than at the northwest and northeast corners. To access the Mansour tract, Mansour would have to traverse South Rainbow and Eifling land along the historical route, or Loughran or Ganier land.

¶ 3. In 1989, after Mansour purchased his tract, Ganier built Ganier Road. Ganier Road is a gravel road which bisects prime farmland owned by Ganier and farmed by co-owner Linda Ganier Stock and her husband George Stock. Ganier established the commercial hub of the farming operations on Ganier Road. Ganier runs a lot of heavy farming equipment over the road and, when necessary, blocks the road with large irrigation pipes to reach her cotton crops. Ganier's farm manager established his residence on Ganier Road, and several structures were built along the road including a building to house equipment, grain bins, a shop, and other buildings from which she conducted her farming operation. There is also a pecan grove along Ganier Road, which requires security to prevent theft during the pecan harvesting season.

¶ 4. From 1989 to 1993, Mansour did not traverse Ganier property to access the Mansour tract. In 1993, in settlement of Mansour's first petition for establishment of a right of way filed before the Washington County Board of Supervisors (the "Board"), Ganier gave Mansour a private license to use Gainer Road during November, December, January, and February of each year. The parties agreed that the private license was not to be made public or recorded. Shortly thereafter, Mansour applied for participation in a Wetland Reserve Program sponsored by the National Resource Conservation Service ("NRCS") of the United States Department of Agriculture.

¶ 5. The Wetland Reserve Program would be lucrative for Mansour if he could qualify. In return for year-round access to the Mansour tract, NRCS would pay Mansour $30,000. Mansour would retain the ownership and use of his property, and could continue duck-hunting on his property. To qualify for the program, Mansour had to procure and record an easement that would make the Mansour tract traversable by a normal passenger vehicle. Mansour explained his predicament to Mrs. Ganier Stock, and asked her to approve an easement over Ganier Road. Mrs. Stock, who was scheduled for cancer surgery the following day, tentatively assented and referred Mansour to her attorney. Mansour later discovered that the Ganier family would not voluntarily grant him an easement over Ganier Road.

¶ 6. Mansour again petitioned the Board to establish a private right of way over Ganier Road. Two Board members inspected the property before the hearing. The Board heard testimony about possible routes to the Mansour tract, including a route dubbed the "Pink Line" route which Ganier volunteered as an alternative to Ganier Road. An easement over the Pink Line route went around the perimeter of Ganier property and did not bisect Ganier farmland as did Ganier Road. The Pink Line route would have required Mansour to clear some trees, build a gravel road, and install one culvert over a drainage ditch. By a vote of three to one, the Board granted an easement over the Pink Line route. The Board ordered Ganier to supplement the record with a legal description of the property to be subject to the easement and awarded her compensation of $2,000 per acre of the land burdened by the easement. The Board did not assess costs of the proceedings or order compensation for damages to the surrounding land.

¶ 7. Aggrieved that he did not get an easement over Ganier Road, Mansour appealed the Board's decision to the Washington County Circuit Court. Without explaining its reasons or indicating that it understood and applied the appropriate standard of review, the circuit court reversed the Board's decision and granted Mansour an easement over Ganier Road.

II. LAW AND ANALYSIS

I. AS A MATTER OF LAW, SHOULD A PETITION TO ESTABLISH A PRIVATE RIGHT OF WAY UNDER MISS. CODE ANN. § 65-7-201 BE DENIED WHEN THE LANDLOCKED PETITIONER HAS NOT ATTEMPTED TO IMPROVE OR UTILIZE AN EXISTING REASONABLE IMPLIED RIGHT OF WAY TO HIS PROPERTY OVER THE REMAINING PROPERTY OF HIS GRANTOR?

¶ 8. Ganier has questioned the authority of the board of supervisors to provide any kind of private access to Mansour over his property since Mansour has a available easement of necessity over the tract out of which his parcel was carved. Were that issue to have merit, the proper relief to be granted in this appeal would be, not only to reverse the circuit court's order, but also to set aside the board of supervisor's order granting access over Ganier property along the Pink Line. However, Ganier appears to have abandoned that issue by failing to provide any argument in support of it and, instead, urges this Court to affirm the order of the board of supervisors, subject only to a remand for the determination of the proper amount of damages for the acquisition of the private way over the Pink Line. We, therefore, will not consider the merits of the first issue raised in this appeal.

¶ 9. The two remaining issues may be narrowed down to one:

II. DID THE CIRCUIT COURT OF WASHINGTON COUNTY ERR IN REVERSING THE BOARD'S GRANT OF AN EASEMENT OVER THE PINK LINE ROUTE?

¶ 10. Ganier argues that instead of acting in the capacity of an appellate court, the circuit court substituted its own judgment for that of the Board. Ganier claims that if the circuit court had reviewed the Board's decision under the appropriate standard of review, the court would have been obliged to affirm. Mansour argues that the Board's decision was arbitrary and capricious; therefore, the circuit court was correct in reversing the Board and in granting Mansour's requested easement. In advancing this argument, Mansour stated that an easement over Ganier Road was the only reasonable easement that could have been granted.

¶ 11. The Board's task was to review and decide whether the owner of a land-locked tract of land, without a legally established means of ingress and egress, was entitled to an easement over neighboring land. The Board had to accomplish this task while keeping in mind the competing interests of a family of farmers who own land surrounding the land-locked tract. Our function as a reviewing Court is not to judge how to balance the competing rights; rather, our duty is to determine whether the Board's decision should stand under the prevailing standard of review.

¶ 12. The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies. Barnes v. Board of Supervisors, 553 So.2d 508, 511 (Miss.1989). "The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial...