Modling v. Bailey Homes and Ins., 55526

• Decision Date: 04 June 1986
• Docket Number: No. 55526,55526
• Citation: 490 So.2d 887
• Parties: Louie W. MODLING, et al. v. BAILEY HOMES AND INSURANCE, et al.
• Court: Mississippi Supreme Court

Page 887

490 So.2d 887

Louie W. MODLING, et al. v. BAILEY HOMES AND INSURANCE, et al.

No. 55526.

Supreme Court of Mississippi.

June 4, 1986.

Floyd J. Logan, Hopkins, Logan, Vaughn & Anderson, Gulfport, for appellants.

Stanford E. Morse, Jr., White & Morse, Joseph R. Meadows, Graves, Riley, Meadows & Walker, Gulfport, for appellees.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

DAN M. LEE, Justice, for the Court:

On January 4, 1983, Mr. and Mrs. Louie Modling, and other property owners, filed a complaint in the Chancery Court of Harrison County, Mississippi for an injunction to set aside a conveyance of land from the City of Gulfport to Bailey Homes, Inc. Bailey Homes, in response to this complaint, later filed a petition to vacate the plat of the land in question. Motions for summary judgment were filed by both parties.

On February 2, 1984, the court rendered summary judgment in favor of Bailey Homes. The plat referring to the land in question was vacated. Modling and two others have appealed, and make these assignments of error:

1. The court erred in failing to grant summary judgment in favor of appellants in that there was no genuine issue of material fact that appellee Bailey's title to the subject is void for the following reasons: (a) the conveyance is an illegal attempt to convey city property dedicated to a public use, i.e., drainage purposes; and (b) the conveyance does not conform to mandatory requirements of the ordinances of the City of Gulfport and the laws of the State of Mississippi.

2. In the alternative, the court erred in granting summary judgment in favor of the appellees in that there exists a genuine issue of material fact whether the conveyance to appellee Bailey by the city is void for the foregoing reasons.

The land which is the subject of this lawsuit is part of what was originally known as Bayou View Subdivision in Gulfport, Mississippi. The plat for this subdivision was filed on May 28, 1954. This piece of land, which is adjacent to Brickyard Bayou, and is behind the homes on Poplar Circle, is marked "Reserved by City for Drainage Control."

In 1959, the City of Gulfport became desirous of acquiring land in another area for use as a park or recreational area. To that end, the city conveyed the piece of land ajoining Brickyard Bayou to Bailey Homes in exchange for another piece of land in another part of the city, for use as a park. A resolution approving that action was not entered into the minutes of the City of Gulfport until February 2, 1960, when a resolution was adopted approving the exchange, and that resolution was entered into the minutes. In 1980, another resolution was passed by the city concerning this property, and entered into the minute book. This resolution attempted to correct the city's inadvertent failure to retain a 50 foot easement on the land which was immediately adjacent to the Bayou. Additionally, the resolution contains the following language:

Whereas, the Mayor and Board of Commissioners further finds and does so determine that the property exchanged with Bailey Homes and Insurance of Gulfport, Inc. was and is surplus and the city has no further need for the land for drainage control with the exception of the easement as herein described.

At approximately the same time, Bailey Homes granted to the City of Gulfport a perpetual easement for drainage control over the property.

As stated earlier, the property in question extends from the back lot lines of the residences on Poplar Circle to the edge of Brickyard Bayou. The plaintiffs in this suit all live on Poplar Circle, as, apparently, so does Sherwood Bailey, who is a director and officer of Bailey Homes. It appears from the record that from the time of the conveyance to Bailey Homes in 1960 until about 1983, the property remained in an undeveloped state. Residents of the area used the property for hiking and picnicking, and other recreational uses. Additionally, Louie Modling, who had a boat dock on Brickyard Bayou, used the property for access to that dock. Two of the plaintiffs Ben Simmons and J.W. King, submitted affidavits stating that they purchased their property in reliance upon the reservation by the city of the property for flood control. Additionally, Simmons alleged that he designed his house so that it would face the undeveloped area.

On May 26, 1981, the city approved Bailey's plan to build a new subdivision on that property--which was to be called Brickyard Bayou Subdivision. The plaintiffs in this case, who were the adjoining property owners, objected to this new subdivision, on the grounds that it would violate the restrictive covenants which they felt applied to the entire area. In January, 1983, the plaintiffs filed the instant suit, asking the court to set aside the conveyance of land to Bailey Homes, and also to enjoin Bailey from developing the subdivision in question. As a basis for the suit, the plaintiffs alleged that the conveyance was void because proper approval was not obtained before the sale. Additionally, the plaintiffs attacked the proposed subdivision on the basis that there was no notice to the adjoining landowners, that the property was reserved for drainage purposes, that it depreciated the plaintiffs property values, that it constituted a flood hazard and a drainage problem, that it was a nuisance in construction and landscaping, and that, because of the subdivision, Modling would lose his easement to the boat slip.

Bailey answered by granting Modling an easement over its property to the boat dock. Subsequently, Bailey filed a petition to vacate the plat of the subdivision, granted Gulfport a 50 foot drainage easement along Brickyard Bayou for drainage purposes, and again granted Modling a dock easement. The City of Gulfport passed a resolution agreeing to the partial vacation of the plat, on July 19, 1983.

In April, 1983, Bailey began construction of the roads through its proposed subdivision. At about that time, heavy rains hit the area, and there was flooding. One of the plaintiffs, J.W. King, took pictures of the flooding, which he alleged was caused by the development of the area. Bailey submitted affidavits from Sherwood Bailey and two engineers which stated that the flooding was due to unprecedented rainfall, and would have occurred with or without the beginning of development. They further alleged that the proposed development included plans for drainage, and that any flooding would be due to unnaturally heavy rainfall, or flooding due to hurricanes.

Both of the parties moved for summary judgment. At a hearing on the motions, the court heard testimony from Milton Evans, who was the Mayor of Gulfport at the time of the original conveyance. Evans testified that he was primarily responsible for platting the subdivision. He stated that the reason for reserving part of the area for drainage was to be able to classify it later. He said that there were several areas that were marked "Reserved for Drainage," and that the intent of the city was not to dedicate the area to a public use, but to reserve it for later determination. He alleged that the city believed at the time that it was reserving an interest in the property, and would be able to sell it at a later date. The city reserved an area along the bayou because the bayou should be...