Johnson v. Hinds County, No. 55897

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtROBERTSON; ROY NOBLE LEE
Citation524 So.2d 947
PartiesBen L. JOHNSON and James P. Knight, Jr., et al. v. HINDS COUNTY, Mississippi.
Decision Date20 April 1988
Docket NumberNo. 55897

Page 947

524 So.2d 947
Ben L. JOHNSON and James P. Knight, Jr., et al.
v.
HINDS COUNTY, Mississippi.
No. 55897.
Supreme Court of Mississippi.
April 20, 1988.

Page 949

James P. Knight, Jr., Knight & Knight, Jackson, for appellant.

Natie P. Caraway, John D. Price, Wise, Carter, Child & Caraway, Jackson, for appellee.

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

ROBERTSON, Justice, for the Court:

I.

This case is about an experienced real estate developer who thumbed his nose at the county's subdivision ordinance. Lots have been formed and sold and houses built. When county planning authorities objected and took him to court, the developer raised a myriad of obstructionist defenses and has simply said, "You didn't catch me in time."

The trial court ordered the developer to move heaven and earth to bring the subdivision into compliance with the county ordinance. We affirm.

II.

A.

Ben L. Johnson had been a land developer in Hinds County, Mississippi, for some twenty-five years. On March 28, 1979, Johnson bought a piece of property in the southern part of the First Judicial District of Hinds County near Byram. He called this property Timberlake Place.

Between Timberlake and U.S. Highway 51 is the Scott property; driveways across the Scott property provide the only ingress

Page 950

and egress to and from Timberlake Place. The previous owners of Timberlake quitclaimed their interest in these driveways to Johnson when he purchased the property. Johnson maintained one driveway across the Scott property. In addition, there were two roads already in existence on the property when Johnson bought Timberlake. After buying the property, Johnson named these roads at the request of the post office and posted road signs identifying the roads.

Before purchasing Timberlake Place, Johnson had a civil engineer draw up a plat of the property, dividing it into lots. The subdivision was never submitted to the Board of Supervisors for approval. See Miss.Code Ann. Sec. 17-1-23(2) (1972). Notwithstanding, Johnson eventually sold all of the parcels as divided on the unofficial plat. Each instrument of conveyance contained restrictive covenants, placing a minimum size requirement on each home to be built and requiring that each lot be used for residential purposes only. A road and utility easement was included in each deed as well.

In addition, Johnson agreed to run water lines into the property and reshape and regravel the existing roads along with building another road. The water system Johnson installed was never approved by the Mississippi State Board of Health, although Johnson claims he was not aware of this until this lawsuit was initiated. More significantly, Timberlake Place in several respects did not conform to the Hinds County Subdivision Ordinance. Johnson openly acknowledged that he did not follow the ordinance because he felt there was no need to.

The dispute further concerns a second, separate parcel of real property owned by Johnson, known as Bolton Heights Subdivision. Johnson purchased this eighty acre tract on July 11, 1980. It lies in the Second Judicial District of Hinds County. This property is not owned solely by Johnson, but by Johnson Land Company, a partnership between Johnson and William L. Waller, Sr.

Prior to purchasing Bolton Heights, Johnson had a preliminary plat prepared, showing twenty-one lots, numbered 1-21 consecutively. Subsequently Johnson had a new plat drawn creating a subdivision which he named Bolton Heights Part I. This plat covered approximately thirty-three of the original eighty acres. Bolton Heights Part I contained Lots 1-11 and 18-21 from the original plat. Lots 12-17 were reserved, and Johnson testified that he had no intention of selling them as a subdivision. Bolton Heights Part I has been approved by the Hinds County Board of Supervisors. Lots 12-17 of Bolton Heights Part I are the properties in controversy in the instant case, in addition, of course, to Timberlake Place.

B.

On April 5, 1983, Hinds County filed two suits against Johnson, one each in the Chancery Courts for the First and Second Judicial Districts of Hinds County. The suit filed in the First District involved Timberlake Place, and the suit filed in the Second District involved Bolton Heights.

In regard to Timberlake Place, Hinds County initially sought a prohibitory injunction against Johnson. The complaint was later amended to demand a mandatory injunction requiring Johnson to perform certain actions on Timberlake Place in order to bring it into compliance with the Hinds County Subdivision Ordinance. See Miss.Code Ann. Sec. 17-1-19 (1972).

The complaint was further amended to join twenty-six additional defendants who were Timberlake lot owners. The County sought a declaratory judgment against these new Defendants. Rule 57, Miss.R.Civ.P. The County asked that the Court declare that each owner had bought his lot subject to the existing Subdivision Ordinance and that from this it follows that Johnson may go on each lot to the extent necessary to bring the land into compliance with the Subdivision Ordinance. Of these 27 defendants, 21 consented to declaratory relief. Lots owners James P. Knight, Jr., James T. Knight, William L. Waller and their respective spouses, each a defendant

Page 951

in this action, objected to the declaratory relief.

In regard to the Bolton Heights property, the County sought an injunction prohibiting Johnson from selling lots 12-17 until these lots were brought into compliance with the Subdivision Ordinance.

The two cases were consolidated for purposes of trial and decision. See Rule 42(a), Miss.R.Civ.P.

The consolidated cases came on for trial on January 26, 1984. In the end, the Chancery Court resolved practically all issues in favor of Hinds County. The Court held that Timberlake Place was subject to the Subdivision Ordinance and then found as a fact that Johnson

did develop a subdivision known as Timberlake Place in the First Judicial District of Hinds County, Mississippi, without complying in any manner with the Hinds County Ordinance or Resolution governing the subdivision of land.

The Court mandatorily enjoined Johnson that he "perform the acts and do the things necessary to bring Timberlake Place ... into compliance ... with the County Subdivision Ordinance."

With respect to the owners of lots lying contiguous to the roads, the Court directed that Johnson solicit their permission to improve the roads at his sole expense. In the case of landowners refusing such permission--the James P. Knights, the James T. Knights, and the Wallers--Johnson was directed to

use all the means available to him at law or in equity to obtain the necessary right-of-way in and across said property for the purposes of constructing the improvements required by said ordinance.

Beyond this and again with respect to Timberlake, the Court entered a declaratory judgment against James P. Knight, Jr., Annie Lou Knight, James T. Knight, Ann S. Knight, William L. Waller, Sr., and Carol O. Waller declaring that each of such parties

purchased their respective lots in Timberlake Place subject to the existing Hinds County Ordinance or Resolution provision regulation governing the subdivision of land

and that Johnson in law had the right

to go upon the roads and adjacent properties of these defendants and improve the roads in order to bring the roads into compliance with said ordinance

....

without compensation to any of such lot owners.

Turning to the Bolton Heights case, the Court first found that Johnson

had in other subdivisions chosen to ignore the provisions of the Hinds County Ordinance governing the subdivision of lands.

The Court then found that Johnson had caused a preliminary plat to be prepared for Bolton Heights and had filed protective covenants with respect thereto. The Court then permanently and prohibitorily enjoined Johnson from conveying any of the lands comprising Lots 12-17 as shown on the preliminary plat of Bolton Heights Subdivision without full compliance with the Subdivision Ordinance; provided that the injunction should expire of its own force upon acceptance of the Hinds County Board of Supervisors of a plat of Bolton Heights as an accepted subdivision.

Johnson has appealed both judgments. James P. Knight, Jr., and the other five Timberlake lot owners subject to--and objecting to--the declaratory judgment have given a separate notice of appeal.

III.

A point should be noted preliminarily. Ben L. Johnson died on February 17, 1985, after perfection of this appeal. The other Appellants filed in this Court on May 5, 1986, a suggestion of death and a motion to dismiss the appeal as moot. The Appellee, Hinds County, opposes the motion to dismiss, pointing to the rather obvious fact, that the imperative for compliance with the Subdivision Ordinance is as real today as when Johnson was alive. 1

Page 952

The nature of the problem before the Court is such that Johnson's personal representatives must be as accountable as was he, no more and no less. We hold that the appeal has been revived in the name of Johnson's estate.

Just as in Cox v. Martin, 75 Miss. 229, 238, 21 So. 611 (1897), where the Court held that contracts are generally enforceable by and against the personal estate of the deceased where the existence of the deceased is not essential to the completion of the contract, we hold that injunctions may be so enforced where there is nothing peculiarly personal in their nature. See also ERB v. Western Display Co., 155 Minn. 225, 193 N.W. 177 (Minn.1923) (upon defendant's death, substitution of executor of will proper in suit to enforce injunction against loud noises emanating from the defendant's land).

IV.

A second preliminary point should be noted. Timberlake Place and Bolton Heights are wholly subject to the Hinds County Subdivision Ordinance. That ordinance defines a "subdivision" as

the division of a tract or parcel of land into two or more lots, plat...

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47 practice notes
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1992
    ...evidence in the record to support the chancellor's findings of fact, those findings must be affirmed here. Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983). If a chancellor fails to make findings on issues of fact, this Court a......
  • Tillotson v. Anders, No. 89-IA-00013
    • United States
    • United States State Supreme Court of Mississippi
    • August 16, 1989
    ...it did Page 220 under the allegations of the complaint, which was all he was required to consider. Johnson and Knight v. Hinds County, 524 So.2d 947 (Miss.1988); American Fidelity Fire Ins. Co. v. Athens Stove Works, Inc., et al., 481 So.2d 292 (Miss.1985). Moreover, the chancellor gave a p......
  • Hill v. Thompson, No. 07-58509
    • United States
    • United States State Supreme Court of Mississippi
    • October 11, 1989
    ...c (1959) and may not be avoided because of past defaults. 4 Scott, The Law of Trusts, Sec. 392 (3d ed. 1967). Johnson v. Hinds County, 524 So.2d 947, 955 (Miss.1988) (failure of enforcement in the past does not render a statute These common law duties have been made more concrete with respe......
  • State ex rel. Moore v. Molpus, No. 90-CA-696
    • United States
    • United States State Supreme Court of Mississippi
    • April 3, 1991
    ...they assert a colorable interest in the subject matter of the litigation and as such have standing to sue. See Johnson v. Hinds County, 524 So.2d 947, 953-54 (Miss.1988); Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss.1987); Belhaven Improvement Association, Inc. v. City of Jackson, 50......
  • Request a trial to view additional results
47 cases
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1992
    ...evidence in the record to support the chancellor's findings of fact, those findings must be affirmed here. Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983). If a chancellor fails to make findings on issues of fact, this Court a......
  • Tillotson v. Anders, No. 89-IA-00013
    • United States
    • United States State Supreme Court of Mississippi
    • August 16, 1989
    ...it did Page 220 under the allegations of the complaint, which was all he was required to consider. Johnson and Knight v. Hinds County, 524 So.2d 947 (Miss.1988); American Fidelity Fire Ins. Co. v. Athens Stove Works, Inc., et al., 481 So.2d 292 (Miss.1985). Moreover, the chancellor gave a p......
  • Hill v. Thompson, No. 07-58509
    • United States
    • United States State Supreme Court of Mississippi
    • October 11, 1989
    ...c (1959) and may not be avoided because of past defaults. 4 Scott, The Law of Trusts, Sec. 392 (3d ed. 1967). Johnson v. Hinds County, 524 So.2d 947, 955 (Miss.1988) (failure of enforcement in the past does not render a statute These common law duties have been made more concrete with respe......
  • State ex rel. Moore v. Molpus, No. 90-CA-696
    • United States
    • United States State Supreme Court of Mississippi
    • April 3, 1991
    ...they assert a colorable interest in the subject matter of the litigation and as such have standing to sue. See Johnson v. Hinds County, 524 So.2d 947, 953-54 (Miss.1988); Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss.1987); Belhaven Improvement Association, Inc. v. City of Jackson, 50......
  • Request a trial to view additional results

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