Miss. Sand Solutions, LLC v. Otis

• Decision Date: 17 May 2018
• Docket Number: NO. 2017–CA–00013–SCT,2017–CA–00013–SCT
• Citation: 248 So.3d 813
• Parties: MISSISSIPPI SAND SOLUTIONS, LLC v. Bessie OTIS, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Greg Cooper, Shirley Fisher Gray, Horace Darryl Fisher, Derrick Fisher, Ray W. Fisher, Sr., Larry Fisher, Michael C. Fisher, Sr., Cornelius Fisher, Sr., Diane Fisher Williams, Sharon Fisher Hill, Sheila Fisher Keys, Bridgett Winters, Ledoria Fisher Baldwin, Johnny L. Wright, James Fisher, Jr., Jimmy L. Wright, Membsey Fisher, Deceased, and Maggie Fisher, Deceased
• Court: Mississippi Supreme Court

248 So.3d 813

MISSISSIPPI SAND SOLUTIONS, LLC
v.
Bessie OTIS, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Greg Cooper, Shirley Fisher Gray, Horace Darryl Fisher, Derrick Fisher, Ray W. Fisher, Sr., Larry Fisher, Michael C. Fisher, Sr., Cornelius Fisher, Sr., Diane Fisher Williams, Sharon Fisher Hill, Sheila Fisher Keys, Bridgett Winters, Ledoria Fisher Baldwin, Johnny L. Wright, James Fisher, Jr., Jimmy L. Wright, Membsey Fisher, Deceased, and Maggie Fisher, Deceased

NO. 2017–CA–00013–SCT

Supreme Court of Mississippi.

May 17, 2018
Rehearing Denied August 9, 2018

ATTORNEY FOR APPELLANT: KENNETH B. RECTOR

ATTORNEY FOR APPELLEES: KEVIN E. GAY

BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

248 So.3d 815

¶ 1. Mississippi Sand Solutions, LLC ("MSS") appeals the Warren County Chancery Court's decree that MSS does not have an easement of any type across property owned by a group of heirs, the "Fisher Property." MSS's predecessors used the alleged easement across the Fisher Property to access another parcel of land from which they mined gravel and sand throughout the years. The Fisher heirs, who owned the Fisher Property, claimed that this access was by permission, evidenced by lease agreements with MSS's predecessors. As a result, the Fisher heirs filed a declaratory action against MSS, seeking to have the alleged easement declared invalid. After a trial, the chancellor ruled that MSS did not have an easement across the Fisher Property. MSS now appeals. Given the standard of review and the sufficient evidence in the record, we affirm the chancellor's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. The parcel of land subject to this suit is a 99–acre tract in Warren County, Mississippi. Membsey and Maggie Fisher purchased the Fisher Property in 1935. To the east, the Fisher Property is bordered by a tract of land that is owned by C.J. Fisher (the "C.J. Fisher Property"). To the west, the Fisher Property is bordered by a parcel of land that was purchased by MSS in 2014 (the "MSS Property").

¶ 3. C.J. Fisher Drive is a private road that runs westerly from Mississippi Highway 27 across the C.J. Fisher Property. The road continues from the C.J. Fisher Property across the Fisher Property and into the MSS Property. The use of the portion of C.J. Fisher Drive that crosses the Fisher Property is the subject of the easement dispute on appeal. Unless otherwise noted, our reference to C.J. Fisher Drive is that portion of the road which crosses the Fisher Property.

¶ 4. The Fisher heirs were the heirs of Membsey and Maggie Fisher. The seven initial Fisher heirs were C.J. Fisher, Maggie Lee Otis, Frank J. Fisher, Mabel Peterson, Horace M. Fisher, Membsy Fisher and James M. Fisher. Membsey predeceased Maggie, and Maggie passed away in 1962. Upon Maggie's death, Peterson was appointed as the administratrix of the Fisher Estate. The Fisher heirs also include Robbie Jean Holmes Ware and Dennis Roy Holmes—the children of Peterson—as well as the other six initial heirs' children who were joined in this action (collectively, the "Fisher Heirs").

¶ 5. Throughout the years, W.J. Runyon used C.J. Fisher Drive to access the MSS Property (before it was owned by MSS) and the Fisher Property to mine gravel from both properties. Ware testified that Peterson handled all of the leases concerning the Fisher Property. She maintained that she saw "papers" and a lease agreement that provided that Runyon could remove sand and gravel from the Fisher Property. The chancellor, in the final amended decree, noted the existence of two separate mineral leases (one before November 1967 and one in 1968) between

248 So.3d 816

various Fisher Heirs and Runyon.¹ Ware also testified that the Fisher Estate received income from the leases from Runyon throughout the years. Janice Turner, one of C.J. Fisher's daughters, testified that her father also received compensation from Runyon.²

¶ 6. At trial, Runyon's son-in-law John Frazier also testified that Runyon used C.J. Fisher Drive to transport gravel from the pits on the MSS Property across the Fisher Property. To weigh the gravel trucks, Runyon installed scales on C.J. Fisher Drive on the Fisher Property. Near the scales, Runyon had a small office with fuel pumps to fuel the trucks. During busy times, one of Runyon's employees was stationed there.

¶ 7. Frazier agreed that Runyon did have a lease on the Fisher Property that allowed Runyon to mine sand and gravel.³ According to Frazier, the only entities to use the road from 1972 to 2002 were Runyon and the Fisher Heirs. To Frazier's knowledge, the Fisher Heirs never objected to Runyon's use of the road.

¶ 8. Pete Buford claimed to have purchased the MSS Property in 2002. He admitted, though, that the property was placed in the name of his "business partner" R.O. Henley, who was Buford's nephew. The 2002 deed reflects that Runyon's widow transferred the MSS Property to Henley.⁴ While Buford claimed that he "was paying the notes" and that he paid the purchase price for the MSS Property, he admitted that there was no legal document to show his claimed ownership interest in the MSS Property until 2008. Buford also admitted that he did not disclose his claimed interest in the property to his wife during their divorce because he "didn't want to muddy the waters."⁵ According to Buford, Henley "didn't do anything" other than hunt on the MSS Property. In 2008, Henley transferred the MSS Property to B.P. Buford, LLC.

¶ 9. From 2002 until 2014, Buford mined sand, gravel and dirt on the MSS Property. During this period, he used C.J. Fisher Drive to access the property. Buford testified that he believed he had a prescriptive easement over the Fisher Property.

248 So.3d 817

¶ 10. Early in 2002, Buford testified that one of the Fisher Heirs built a gate across C.J. Fisher Drive. He maintained that he "snatched it down" with his truck and a chain. Buford claimed that, fifteen minutes after he pulled the gate down "Mr. Fisher⁶ showed up and he said, who tore the gate down and I said I did. He said, I'm going to put it back up. I said, well, I'm going to tear it back down." At first, Buford maintained that the gate was on the Fisher Property—not the MSS Property. He claimed it was somewhere between the scales and Highway 27. On cross-examination, when asked whether the gate was on the Fisher Property or the C.J. Fisher Property, Buford responded, "I don't have any idea. I assume it was between the two pieces of Fisher property." After this incident, no one built another gate.

¶ 11. James Harrell, one of Buford's former truck drivers, testified concerning the gate incident. Harrell testified that Buford did pull down the gate that was across C.J. Fisher Drive about two weeks after Buford had begun operations on the MSS Property. Harrell admitted that he was Buford's friend and that this was the first time since 2002 that he had been asked to recollect the incident. Harrell also testified that the gate that Buford pulled down was the gate on his own property line.

¶ 12. In 2013, Pete Buford sued Fisher Heirs, seeking judicial recognition of an easement over the Fisher Property. Buford later dismissed the suit, but Ware testified that the dismissal was after the Fisher Heirs met and withdrew permission for the use of the portion of C.J. Fisher Drive that crossed the Fisher Property to any other entities.

¶ 13. B.P. Buford, LLC, conveyed the MSS Property to MSS in 2014. Under the deed of trust, MSS's obligation to pay Buford $32 million did not begin until MSS began to sell sand and gravel from the MSS Property.

¶ 14. The Fisher Heirs brought their complaint for declaratory judgment against Buford, Buford Partners, LLC⁷ and John Does 1–10 on August 1, 2014, in Warren County Chancery Court. The Fisher Heirs amended their complaint on October 7, 2014, to add MSS. They sought to have the chancery court declare the easement over the C.J. Fisher Property and the Fisher Property invalid.

¶ 15. MSS responded with its answer and counterclaim against the Fisher Heirs. MSS claimed an easement across the C.J. Fisher Property and the Fisher Property by express grant or, in the alternative, by prescription. The Fisher Heirs answered the counterclaim and requested that it be dismissed.

¶ 16. The suit went to trial on August 1, 2016. At trial, MSS stipulated that it did not have an express easement over the Fisher Property. After trial, the chancellor entered a final decree.⁸ Upon reconsideration, the chancellor issued an amended final decree. The original decree and the amended final decree, which is discussed below, both found that MSS did not have

248 So.3d 818

any type of easement across the Fisher Property.

¶ 17. MSS now appeals from the chancellor's determination that it does not have an easement by prescription or necessity. In its brief, MSS raises ten issues. For clarity, we re-frame the issues on appeal as follows:

I. Did the chancellor abuse her discretion in finding that MSS did not have a prescriptive easement across the Fisher Property?

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