King v. Gale, 2013–CA–00271–COA.

• Decision Date: 16 June 2015
• Docket Number: No. 2013–CA–00271–COA.,2013–CA–00271–COA.
• Citation: 166 So.3d 589
• Parties: Ervin KING, Appellant v. Sam GALE and Jerusalem Baptist Church, Appellees.
• Court: Mississippi Court of Appeals

166 So.3d 589

Ervin KING, Appellant

v.Sam GALE and Jerusalem Baptist Church, Appellees.

No. 2013–CA–00271–COA.

Court of Appeals of Mississippi.

June 16, 2015.

Robert M. Logan Jr., Newton, attorney for appellant.

George Howard Spinks, attorney for appellee.

EN BANC.

Opinion

MAXWELL, J., for the Court:

¶ 1. Ervin King appeals the denial of his claims for either a prescriptive easement or easement by necessity across Sam Gale's and Jerusalem Baptist Church's properties. The evidentiary burden required to establish a prescriptive easement is high—clear and convincing evidence. And the chancellor found King failed to clearly establish the most basic principle for a prescriptive easement—use that is non-permissive. The chancellor also found King did not prove that an easement by necessity across Gale's property was, in fact, necessary. And as to the church property, King could not meet the preliminary requirement for an easement-by-necessity claim—that his and the church's land was once commonly owned.

¶ 2. After review, we find the chancellor applied the law correctly and based his decision on substantial record evidence. So we affirm.

Facts and Procedural History

I. King's Property

¶ 3. King has owned a landlocked piece of property in Kemper County since 1974. Though King lives out of state, he visits the Mississippi property three to four times a year.

¶ 4. According to King, to get to his property, most often he would turn off Highway 39 onto Jerusalem Church Road and head south. Jerusalem Church Road runs past Jerusalem Baptist Church, which has a private drive and parking lot. Just south of the church parking lot is Sam Gale's property. And south of Gale's property lies King's. Gale's property is fenced. But sometimes, with Gale's permission, King would open Gale's gates and drive across Gale's property to get to his. Most times, however, King would park in the church parking lot, hop the fence, and then walk across Gale's property.

¶ 5. At other times, King would not go through Gale's property at all. Instead, he would enter his property through land belonging to another neighbor, George Follet. For example, when King harvested timber in 1985, he used Follett's property to remove the timber.

¶ 6. In 2004, King and Gale had a falling out. So King stopped going across Gale's property and ever since has crossed Follett's.

II. King's Lawsuit

¶ 7. In 2006, King sued Gale. King asked the Kemper County Chancery Court to establish a boundary line between his and Gale's properties. He also asked for an easement by necessity or prescriptive easement across Gale's land. Later, King amended his complaint, adding Jerusalem Baptist Church as a defendant. King's amended complaint sought an easement across the church's property too.

¶ 8. Trial began in January 2012. At the close of King's evidence, Gale and Jerusalem Baptist Church filed a motion to dismiss. See M.R.C.P. 41(b) (permitting the defendant, in a case tried without a jury, to file a motion to dismiss “on the ground that upon the facts and the law the plaintiff has shown no right to relief”). The chancellor partially granted the motion.

¶ 9. The chancellor dismissed King's claim to establish a boundary line, because he “didn't think the evidence was compelling enough.” See Buelow v. Glidewell, 757 So.2d 216, 220 (¶ 12) (Miss.2000) (directing that a Rule 41(b) motion “should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff's burden of proof”). While King presented an expert surveyor, the chancellor refused to admit some of the documents the expert relied on—namely, a twenty-year-old preliminary sketch prepared by the surveyor's predecessor and a plat the surveyor created from his predecessor's sketch.

¶ 10. The chancellor also dismissed King's claim for an easement by necessity across both Gale's and Jerusalem Baptist Church's properties. The chancellor found King had presented no proof of necessity against Gale. King also offered no proof his land used to be part of a common tract with the church property—an essential first step to establishing an easement by necessity.

¶ 11. Still, the chancellor overruled the motion to dismiss the prescriptive-easement claim. Because he could not say King failed to establish this claim, the chancellor ordered trial to continue on this remaining issue.

¶ 12. In his order partially granting dismissal under Rule 41(b), the chancellor used the phrase “without prejudice.” But because of the confusion that phrase created, the chancellor later entered an order clarifying that, since his dismissal was based on an evaluation of the merits of King's evidence, the boundary-line claim and easement-by-necessity claims had been actually dismissed with prejudice. According to the chancellor, the phrase “without prejudice” merely had been used “to convey to the parties that the ruling did not prejudice the rights of each defendant to proceed with the presentation of their respective case on the only remaining issue before the court.” See M.R.C.P. 41(b) (expressly stating that a defendant does not “waiv[e] his right to offer evidence in the event the motion is not granted”).

¶ 13. Trial continued in November 2012. At the close, the chancellor denied King's claim for a prescriptive easement across Gale's and the church's property, finding King failed to prove by clear and convincing evidence all six required elements of a prescriptive easement. In particular, King had failed to show his use of Gale's property had been hostile, as King himself testified he had asked for Gale's permission.

¶ 14. With the November 2012 order dismissing the remaining claims, both this order and the earlier Rule 41(b) order became final and appealable. And following the denial of his motion for a new trial or alteration of the judgment, King timely appealed.

¶ 15. On appeal, we employ a limited standard of review. We will not disturb the chancellor's findings unless the chancellor was manifestly wrong or clearly erroneous or the chancellor applied the wrong legal standard. McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000).

Discussion

I. Surveyor's Sketch and Plat

¶ 16. King's first argues the chancellor erred by excluding the preliminary sketch and plat offered by his expert witness, licensed surveyor Henry D. Purvis III. Gale and Jerusalem Baptist Church objected to the sketch because it had been drawn twenty years ago by another surveyor, a man Purvis had apprenticed under. And they objected to Purvis's plat because Purvis had based the plat on the sketch, not his own survey.

¶ 17. King claims these objections had more to do with the weight of this evidence, not its admissibility. He asserts the sketch and plat were business records and, thus, should have been admitted under the business-records exception to the hearsay rule. See M.R.E. 803(6). We agree with King that there was no hearsay issue with the sketch and plat. See Dillon v. Greenbriar Digging Serv., Ltd., 919 So.2d 172, 175–76 (¶¶ 8–10) (Miss.Ct.App.2005) (affirming the admission of an inspection report, which had been prepared by a different inspector than the one offering it into evidence, because it met the requirements of the business-record exception). And any evidentiary problems had more to do with the weight and credibility, not the admissibility, of this evidence.

¶ 18. That said, the chancellor clearly found the sketch and plat were insufficient to establish a boundary line between the two properties. Both the admissibility and—in a bench trial like this one—evidentiary weight of the sketch and plat fell within the sound discretion of the chancellor. Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995) (broad discretion vested to trial judge regarding evidentiary questions); Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994) (deferential standard of review for chancellor, who sits as the finder of fact). On appeal, our role is not to substitute our judgment for the chancellor's but instead to ask whether he abused his discretion. See Murphy, 631 So.2d at 815. Further, “for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., 654 So.2d at 1131.

¶ 19. Had a trial judge excluded this evidence, preventing a jury from weighing it, such exclusion might be reversible. But here the chancellor was the fact-finder. And even had he admitted the sketch and plat, it is clear he found this evidence lacked sufficient weight to meet King's burden to establish the boundary line. So we cannot say that his refusal to admit this evidence was reversible error.

II. Prescriptive–Easement Claim

¶ 20. King next argues he was entitled to a prescriptive easement across both Gale's and Jerusalem Baptist Church's properties.¹ We are mindful that the evidentiary burden to establish a prescriptive easement is high. King had to show by clear and convincing evidence he used the church's private drive and a path across Gale's property to get to his. See Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss.1992). He also had to prove his use was (1) under claim of ownership, (2) actual or hostile, (3) open, notorious, and visible, (4) continuous and uninterrupted for a period of ten years, (5) exclusive, and (6) peaceful. Id. at 1152–53 (citations omitted).

¶ 21. As to Gale, the chancellor found no clear and convincing evidence of even a road across Gale's property—let alone clear and convincing evidence King had been using this road openly, notoriously, visibly, adversely, under a claim of ownership, exclusively, peacefully, and uninterruptedly for at least ten years. In Rawls v. Blakeney, 831 So.2d 1205, 1209–10 (¶ 15) (Miss.Ct.App.2002), this court affirmed the grant of prescriptive easement, in part, because the plaintiff had met the under-a-claim-of-ownership requirement by...