David W. Alford v. Cotton Row Hospitality, LLC

• Court: Court of Appeals of Mississippi
• Decided: August 22, 2023
• Docket: 2022-CA-00125-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00125-COA

DAVID W. ALFORD APPELLANT/ CROSS-APPELLEE

v.

COTTON ROW HOSPITALITY, LLC APPELLEE/ CROSS-APPELLANT

DATE OF JUDGMENT: 01/03/2022 TRIAL JUDGE: HON. CATHERINE FARRIS-CARTER COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: SHELDON G. ALSTON WARREN KENDRICK ROGERS JR. JACOB ARTHUR BRADLEY ATTORNEYS FOR APPELLEE: WILLIAM JACOB LONG IV CHRISTOPHER DANIEL MEYER NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED, VACATED, AND RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED, VACATED, AND RENDERED IN PART - 08/22/2023 MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. This adverse possession/prescriptive easement case involves a wall between two

properties in downtown Cleveland, Mississippi. David Alford (David) sued Cotton Row

Hospitality LLC (Cotton Row) in the Bolivar County Chancery Court to confirm title to the

wall by adverse possession and/or establish a prescriptive easement for its use. After a trial, the chancery court held, among other things, that David had valid claims of adverse

possession and to a prescriptive-easement claim to half of the wall. But because Cotton Row

owned the rest of the wall, the chancery court ordered David to pay Cotton Row for title to

that half of the wall, and David would thereafter own the entire wall, i.e., with free and clear

title. The chancery court also ordered David to either construct his own support system or

reimburse Cotton Row for the value of its investment in stabilizing the wall.

¶2. Although David appeals from the chancery court’s judgment, he does not dispute the

chancery court’s finding of his ownership to at least a portion of the wall by adverse

possession and a prescriptive easement for its use. But David contends, among other things,

that the chancery court erred by requiring him to pay Cotton Row for the remainder of the

wall and Cotton Row’s costs for constructing the support system (if he chose to accept the

system rather than building his own). Cotton Row cross-appeals, claiming that David was

barred from relief under the doctrine of unclean hands and that he had not proved the

elements of adverse possession or prescriptive easement. After reviewing the record, the

arguments of the parties, and the relevant caselaw, we affirm the chancery court’s judgment

in part and reverse, vacate, and render in part.

Facts

¶3. In the mid-1950s, Arnold and Jean Alford (the Alfords) rented a building in

downtown Cleveland, Mississippi, from H. O. Solomon to operate a furniture store. On

October 30, 1975, the Alfords purchased the property next door, south of the furniture store,

from Automotive Parts Company, a Mississippi corporation. This property contained a

2 building, which the Alfords used as a frame shop, and two approximately eleven-foot-wide

uncovered, non-public alleyways on each side. One alleyway separated the frame shop from

the furniture store building. The furniture store building was located closer to the street, and

the frame shop was set back a few feet.

1975 Enclosure of the Alleyway

¶4. In 1975, the Alfords enclosed the alleyway on the north side of the frame store that

ran between the frame shop and the furniture store. They built walls on the back and front

of the alleyway, attaching both to the walls of both buildings. They also extended the roof

over the area, attaching it to the exterior side of the furniture shop’s wall. This created 792

square feet of new interior space for the frame shop. The Alfords made a doorway from the

furniture store into the alleyway area so they could go back and forth between the two

buildings. They built shelves on both sides of the furniture shop wall—shelves for their use

in the now-extended frame shop and shelves on the inside of the furniture shop. There was

no proof in the record that Solomon, who owned the furniture store property, objected when

the Alfords created this extension to the frame shop’s building by using the exterior of the

wall of the furniture shop. Nor was there any proof that Solomon had permitted this use

either.

Transfer of Other Alleyway

¶5. On March 19, 1980, the Alfords conveyed the alleyway on the south end of the frame

shop property to the City of Cleveland. The city anticipated building on the property, and

in the deed, the Alfords agreed that the city could use the thirteen-inch masonry wall of the

3 frame shop to attach its new building. The deed specifically referred to this as a “party wall,”

and the city agreed to close in the existing windows and door on the wall and to move the

electrical outlets and light fixtures on the interior side of the wall that the Alfords would use.

¶6. The Alfords continued to lease and operate the furniture store until 1981 when they

sold the business. When the Alfords vacated the furniture building, they filled in the

doorway between the alleyway/storage area of the frame shop and the furniture store

building. At this point, the Alfords only owned the frame shop building, which included the

area that had been enclosed by attaching a roof to the furniture store.

Sale of the Furniture Shop Property to the Perrys

¶7. On January 23, 1985, Solomon’s widow and only heir sold the furniture store property

to Billy and Mary Perry, who opened a pawn shop. Billy Perry testified that when they

purchased the property, the Alfords had already enclosed the alleyway and had extended the

roof, which was attached to the pawn shop wall. The Perrys never objected to the roof

extension after they obtained title to the pawn shop. As he testified, “it was never discussed.”

¶8. But the Perrys still considered the entire pawn shop building to be theirs, including

the wall to which the Alfords had affixed the extended roof. The Perrys operated their

business in the entire building and maintained the building, including the interior side of the

wall. Perry testified that he had electricity wires along that wall, where he displayed his TVs.

The Perrys also painted the exterior portion of the wall that jutted out to the street beyond the

frame store and posted a sign identifying their pawn shop business. No one objected to the

Perrys’ use of the wall during the time that they owned the pawn shop from 1985 to 2017.

4 Moreover, the Perrys never sought or received permission from the Alfords to use the wall

either. The record reflects that the Perrys and the Alfords operated peacefully with the

buildings configured as they were.

¶9. In addition, it was clear to the public that the Alfords’ roof was attached to the

pawnshop building. John Valentine, a retired attorney who served as Cleveland’s city

attorney and a county and youth court judge, testified about this at trial. He said that

sometime in the 1970s, the Chamber of Commerce and the City worked on a joint project to

give the storefronts a facelift by requiring the owners to install awnings, canopies, and eaves.

Valentine said that at that time and thereafter, it was clear to anyone walking down the street

that the frame shop and pawn shop buildings were connected.

Transfer to David

¶10. After Jean and Arnold Alford passed away, on June 23, 2009, their children had the

building appraised by Lucy Capocaccia. In her appraisal, she noted:

In addition to the main building structure, there is a narrow addition to the building on its north side, which measures approximately 11' x 72'. This is actually where the alley used to run between this property and the property north of it and was purchased by the property owner and enclosed. It is considered to be unfinished storage area.

Thereafter, three of the four Alford children deeded their interests in the frame shop property

to their brother David, who had worked in the frame shop since 1993. By this conveyance,

David became the sole owner of the frame shop property. After he became owner, David put

another doorway into the frame shop’s interior wall of the enclosed alleyway, so there were

two entrances from the shop. He said he later made the alleyway area into a gallery with a

5 small stage.

Hotel Construction

¶11. In 2016, David learned that a group of investors had planned to build a hotel in the

area. David attended several Cleveland Heritage Commission meetings and confirmed that

Cotton Row was going to purchase the pawn shop property from the Perrys to construct the

hotel. David began emailing Cotton Row executives asking what was going to happen with

his alleyway roof when the pawnshop wall was taken down. He asked for compensation for

the loss of his roof when what he referred to as the “common wall” between the two

buildings would come down. David also contacted architects for the proposed hotel to

discuss his “loss of the 800 feet in my alley.” On February 12, 2017, Donald Alford (David’s

brother) wrote Cotton Row about the contemplated construction as well. Donald inquired

if the plans provided adequate separation between the buildings for fire safety. He also asked

how the wall would be stabilized before and after demolition.

¶12. On May 12, 2017, Cotton Row finalized its purchase of the pawn shop property from

the Perry family. Cotton Row’s title report and a survey of the property (completed by

Robert Eley on May 25, 2017) showed no issues with the chain of title or boundaries. Eley

found that no part of the pawnshop building encroached onto David’s property.

¶13. Demolition of the pawnshop began in October 2017. Those doing the work alerted

Clay Scruggs, one of Cotton Row’s developers, that one of the walls of the pawnshop had

the roof of the building next door attached to it. Scruggs stopped the demolition work and

arranged to meet with David. In anticipation, David prepared a list of options for handling

6 the demolition of the wall. One included establishing the property line and retaining the wall

with structural reinforcement. A second option involved demolishing the wall and building

a new wall for the frame shop building with windows, doorways, HVAC relocation, and

storefront rehabilitation. The third option was a partial demolition of the wall, leaving it

about six feet high (still with structural reinforcement) and pergolas over the alleyway area,

creating an outdoor gallery and event space. David expected Cotton Row to pay for the work

required in all these options.

¶14. David presented his three options in the meeting in November 2017 with Mike Harrell

of the Probity Contracting Group (the general contractor) and the Cotton Row developers,

Luke Chamblee and Clay Scruggs, along with other construction personnel. Scruggs said

that they looked at the frame shop space, which appeared to him to be a storage space.

Cotton Row’s representatives said they would consider David’s proposals, but Chamblee said

he was confused about why they should have to pay for improvements to David’s frame

shop.

¶15. Two days later Scruggs met with David at the frame shop. Scruggs told David that

he had discussed the proposals with their investors, and their decision was to “do no more

than help support the roof.” Scruggs said that the wall would still come down pursuant to

the plans and that David needed to detach his roof from their wall. David asked Scruggs to

leave, and there was no further discussion of any other alternative solutions to their problem.

David said he retained counsel that day to handle the matter.

¶16. Shortly after the meeting, Chamblee emailed David and asked to meet again to discuss

7 the matter and perhaps reach a compromise. David responded that he could not meet due to

his holiday business schedule and referred Chamblee to his attorneys. David said that the

following week, he received a letter from Cotton Row telling him that he had five days to

remove the wall. After that time, when David emailed Chamblee, David then referred to the

wall as “my wall,” and not a “party wall” or “common wall.”

¶17. Between December 2017 and February 2019, both parties took unilateral actions

concerning the property without seeking court intervention.1 Needing to adhere to a strict

construction timetable because of financial constraints, Cotton Row decided to leave the

pawn shop wall in place “until the wall issue was resolved.” Cotton Row proceeded to build

the hotel set back from the pawnshop wall, leaving the wall free-standing. To support the

wall, however, Cotton Row spent $40,000 to temporarily “shore up” the wall. Cotton Row

later spent an additional $20,000 installing structural steel beams encased in concrete

attached to the foundation of the hotel. Cotton Row contended that it took these actions to

protect the wall, the hotel, its employees, and eventually its guests.

¶18. In June 2018, when David learned that Cotton Row was not going to demolish the

wall, he installed a new roof over the original roof covering the alleyway area. David

testified that the old roof remained, and he added two inches of foam insulation that was

screwed into the old roof and then applied a membrane over that. But this new roof now

extended over the top of the pawn shop wall rather than simply being attached to one side.

¶19. David hired Terry Smith to survey the boundaries of the frame shop property in

1 The record contains no information of any further negotiations between the parties or with attorneys during this period.

8 August 2018. Smith reported that the wall was on the property line between the property

owned by David and the property owned by Cotton Row. But Smith returned to the property

just a few days before trial in 2020. At that time, he revised his findings and confirmed that

most of the wall in dispute was on Cotton Row’s property with only 1/4 inch at the ends

being on David’s property. Smith also testified that from his review of the definition of a

“party wall” in Black’s Law Dictionary, he felt the wall in contention was a party wall

because both the Alfords and the Perrys had used it. He admitted, however, that the Alfords

had no written agreement with the Perrys for a party wall like the Alfords had put in their

1980 deed to the city.

Court Proceedings

¶20. On March 1, 2019, David filed suit in the Bolivar County Chancery Court to confirm

his title to the pawn shop wall by adverse possession or establish a prescriptive easement for

its use. In the complaint, David sought an order giving him ownership of the entire

pawnshop wall to which he had affixed his roof and for a prescriptive easement to use five

feet of Cotton Row’s property to maintain the wall.

Motion Hearing and Trial

¶21. On August 14, 2020, a month before trial, Cotton Row filed a motion for summary

judgment, to which David responded. In his response, David argued not only that he had

ownership of the wall by adverse possession and/or an easement to it as he had pleaded, but

he also argued that the wall in question was a “party wall” because both he and the Perrys

had used the wall. Cotton Row countered that David had not pleaded a claim based on this

9 “party wall” theory. On the first day of the trial held on September 21-22, 2020, the chancery

court heard their arguments and denied Cotton Row’s summary judgment motion.

¶22. The chancery court then proceeded to hear testimony from the parties. At trial, the

following witnesses testified: Surveyor Smith, Attorney Valentine, Donald Alford,2 David,

Appraiser Capocaccia, Perry, Chamblee, Surveyor Robert Eley, and Clay Scruggs. Each

testified to the facts listed above.

July 12, 2021 Chancery Court Final Order and Opinion

¶23. After considering the testimony and proof presented by the parties, the chancery court

entered its final judgment (see supra ¶2) on July 12, 2021. After reciting the facts and

procedural history of the case, the chancery court posed and answered several questions. In

answering these questions, the chancery court found that no portion of the pawn shop

building ever rested on the frame shop property, so the Alfords had no title to any portion of

the wall by deed.3 But the court also found that the Alfords had established a valid adverse

possession claim “to a very limited portion” of the wall, namely only to the depth of the

2 Donald Alford, David’s brother and an architect, confirmed their father’s enclosure of the alleyway back in 1975. He also testified that when he learned of the hotel project, he wrote to Cotton Row in February 2017 about his construction concerns especially because the wall between the frame shop and the pawnshop acted as a firewall. By December 2017, Donald received the hotel construction plans and saw that the wall would be retained and supported. He wrote Cotton Row again in December to confirm his understanding of the plans. Donald also testified that it was possible for David himself to build a new wall on his own property to hold up his roof. 3 The chancery court noted the different testimony of the surveyors who testified and found that the wall had varying dimensions. The court found that “it is unreasoned to say that a fourth (1/4) of an inch at the end of the wall gave David some perceived ownership by deed.”

10 “bolts, latches and other connective materials” used to connect the original roof over the

alleyway. The chancery court held that the pawn shop wall was never a “party wall” because

the Alfords had never paid for an interest in half of the wall, and no proof was presented of

any agreement between the Alfords and the owners of the pawnshop property to use it as a

party wall.

¶24. Further, noting that the elements of a prescriptive easement were similar to those of

adverse possession, the court held that the Alfords also had a prescriptive easement to use

the wall but only to the depth that the Alfords inserted their construction materials. The

chancery court was concerned that David attempted to expand his claim to ownership prior

to filing suit by recently installing a roof over the top of the wall. Moreover, the court found

that in response to David’s actions, Cotton Row had to insert structural setbacks on its own

property to shore up the wall. The chancery court found that David’s actions interfered with

Cotton Row’s use of nearly five feet of its own property.

¶25. The chancery court noted that the wall was now used only by David, but because of

the deteriorated relationship between the parties, it was not feasible for him to go onto Cotton

Row’s property to maintain the wall’s exterior side. The chancery court sought to fashion

an equitable remedy for the wall’s maintenance given various factors, including the fact that

the property was located in a historic district, that the governing authorities had approved the

existence of the current wall, that the wall has always belonged to various owners of the

pawn shop building and the owners of the frame shop. The court found that it was

unreasonable to require that the wall be torn down, moved less than a foot, and rebuilt to

11 support David’s roof. Finally, the chancery court found that Cotton Row had taken the only

reasonable option given its deadlines, i.e., supporting the wall.

¶26. The chancery court then ordered David to remove the current support for the wall that

Cotton Row had constructed.4 David had a maximum of 100 days to do this unless the

parties agreed to extend the deadline. The court further ordered that after completion of the

change in structural support, David pay Cotton Row the fair market value of one-half of the

wall and that Cotton Row convey to David clear title to the wall upon payment. The

chancery court also ordered that David be liable for any harm caused to anyone after Cotton

Row transfers ownership of the property; that Cotton Row had the right to review the plans

for structural stabilization of the wall as planned by David; and that the parties were

responsible for their respective attorney’s fees and costs.

Motions to Alter, Amend, or Clarify the July 12, 2021 Order

¶27. Both parties filed motions to alter, amend, and/or clarify the chancery court’s final

judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure.5 In his motion,

4 This would require David to construct supports for the wall on his side if he determined they were needed. 5 Mississippi Rule of Civil Procedure 59(a) provides:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Mississippi; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.

On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings

12 David argued, among other things, that he should not have to remove Cotton Row’s support

system and construct new support.

¶28. On October 5, 2021, the chancery court heard arguments on the motions. Cotton Row

opposed changing the judgment’s provision that required David to remove the support system

and construct his own on his own property. Cotton Row pointed out that even if it conveyed

the wall to David, anyone injured because of the wall would hold Cotton Row liable as the

entity that constructed the support system. The issue of the extent of the foundation for the

wall was discussed, and so was whether this would affect the extent of real property that

would need to be included in the transfer deed to David for the entire wall and its support

structure. The chancery court gave the parties time to consult with engineers to determine

the exact nature of the support system in place and perhaps reach a compromise.

¶29. After the hearing, the parties filed supplements to their Rule 59 motions concerning

the extent of the support system. Cotton Row reported it had determined that “holes were

drilled into the ground between where the hotel now sits and the wall, steel beams were

attached to the wall and run into the holes, and then said holes were filled with concrete.”

However, Cotton Row could not determine if the support system overlapped with the

foundation of the hotel itself without digging down twelve feet to inspect the foundation.

Cotton Row further argued that the issue of ownership beyond the wall was first raised at the

October 5, 2021 hearing. If Cotton Row were required to sell a portion of its real property

beyond the wall, Cotton Row requested full reimbursement of all its costs ($58,000).

of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

13 ¶30. David’s post-hearing filing included an affidavit from the contractor Michael Harrell,

who built the hotel. In it, Harrell stated that the wall supports were free-standing and have

no connection to the hotel’s foundation. Harrell confirmed that holes were bored just north

of the wall, concrete was placed in the holes, and steel supports were attached to the pilings

and bolted to the wall. David attached pictures of this work. David also argued that Cotton

Row would have been liable to David for damages for interfering with his prescriptive

easement to the wall. Accordingly, David contended that Cotton Row was legally required

to do what it did and that David should not have to pay.

¶31. No compromise was reached. Cotton Row filed a motion to strike David’s post-trial

evidence (Harrell’s affidavit and photos).

January 3, 2022 Order

¶32. On January 3, 2022, the court issued an order that re-affirmed its July 2021 findings

that the Alfords only used one-half of the wall to support the roof of its frame shop extension

until David recently “took the unprecedented step” of running his roof line over the top of

the wall. The court found it was “highly convenient that [David] Alford needed to do major

roof line work on the frame shop after Cotton Row refused to meet any of his financial

demands” and his “use of the wall to support the roof of the frame shop did not require the

use of the entire wall prior to his hostile actions in 2019.”

¶33. The chancery court noted the extreme hostility between the parties and the need for

them to be “physically and legally severed from each other.” Thus, although a prescriptive-

easement holder may normally be given the right to enter onto the property of another to

14 enforce the prescriptive rights, in this case the chancery court found that “allowing even the

most minimum connections between the parties will cause untold community disruption and

contentious litigation.” The court recognized that it was difficult to require Cotton Row to

sell prime realty, yet the court affirmed that Cotton Row was required to convey David its

half of the wall upon David’s payment.6

¶34. Further, the chancellor had inspected the property and observed the steel-rod wall that

Cotton Row had built. The court held that when David acquires the wall, Cotton Row is

entitled to the full value of the land and the improvements. The chancery court granted

Cotton Row’s motion to strike post-trial evidence and found that for purposes of fashioning

a remedy, the court would consider the support to be connected to the foundation. The court

found that Cotton Row made a significant investment in the installation of the steel-rod wall

next to the wall. The court found that the investment benefitted both parties and that David

should not be rewarded just because he established a prescriptive easement. The court’s

order stated, “Thus, the [c]ourt herein would rule that if Alford wishes to acquire the steel

rod wall, Cotton Row is entitled to the full value of the land and improvements.”7 The

chancery court further required that the color and appearance of the wall must remain

6 The order provided that the parties would agree on an appraiser to value the wall and property being transferred. If they could not agree on an appraiser, the parties had thirty days to submit three names to the court, and the court would choose the appraiser. 7 The court also ordered that “should an agreement be reached between the parties regarding the ownership of the steel rod wall, Cotton Row would be entitled to the value of the land and all improvements.” Keeping in mind that the unaltered provisions of the July 12, 2021 order remained in effect, we understand the court to be holding that if David decides to accept the wall with the improvements rather than constructing his own, then the wall should be valued with the value of the support system included.

15 compatible with the current state of the wall and comply with city building codes. Further,

until the wall was conveyed to David, both parties remained liable for any harm caused by

the overhang from David’s roof. The court ordered David to maintain insurance on the wall.

Once Cotton Row conveyed the wall to David, the court ordered that, because the steel rod

wall that had been installed adequately provided structural support, there was no need for

David to access Cotton Row’s property for maintenance or inspection. The chancery court

also ordered that a surveyor be retained to “shoot” a straight line for the wall and write a

legal description. The parties would equally share that cost. The court reaffirmed all other

rulings in its July 12, 2021 judgment that were not altered by the January 2022 order.

Appeals

¶35. On January 27, 2022, David appealed both the July 12, 2021 final judgment and the

January 3, 2022 order. On appeal, David presents the following: (1) the chancery court did

not err in finding that the Alfords had adversely possessed and established a prescriptive

easement of the wall; (2) the chancery court erred in finding that David’s claim of adverse

possession was limited to one-half of the wall; (3) the chancery court erred in requiring

David to pay for property he adversely possessed; (4) the chancery court erred in requiring

David to pay Cotton Row to secure the wall; (5) the chancery court erred in imposing other

financial and legal burdens on David.

¶36. On February 4, 2022, Cotton Row cross-appealed, arguing that: (1) David had

“unclean hands” and should have been precluded from any equitable relief; (2) David’s

claim of prescriptive easement was not pleaded and should not have been considered by the

16 court; (3) David failed to prove all elements of adverse possession or prescriptive easement;

and (4) David’s failure to prove adverse possession or prescriptive easement precludes him

from entering Cotton Row’s property to maintain the wall.

¶37. We have restructured both parties’ arguments and address them below.

Standard of Review

¶38. The Mississippi Supreme Court noted in a recent adverse possession case that on

appeal the chancery court’s factual rulings are reviewed under an abuse of discretion

standard. Crotwell v. T & W Homes, 318 So. 3d 1117, 1121 (¶11) (Miss. 2021). “Questions

of law are reviewed de novo,” and “[t]he findings of a chancellor will not be disturbed on

review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong

legal standard.” Id. Despite the deference given, “if the chancery court’s findings were

manifestly wrong or the court applied an erroneous legal standard this Court will not hesitate

to reverse.” Tilley v. Tilley, 610 So. 2d 348, 351 (Miss. 1992).

Discussion

I. Whether David is precluded from equitable relief under the unclean hands doctrine.

¶39. Before filing suit, and once David knew there was a dispute concerning the wall,

David replaced the roof extension over the alleyway and changed how it attached to the

pawnshop wall. Cotton Row contends that this unilateral action precluded David from

receiving any relief from the courts under the “unclean hands doctrine.” The chancery court

made no specific ruling on this issue. However, the court did note in its January 3, 2022,

order:

17 [David] Alford only utilized one half of the Wall to support the roof of his Frame Shop until he took the unprecedented step of running his roof line to the top of the Wall and down the opposing side of the Wall after the Pawn Shop was sold to Cotton Row in May 2017. The court finds it highly convenient that [David] Alford suddenly needed to do major roofline work on the Frame Shop after Cotton Row refused to meet any of his financial assistance requests.

Despite stating this, the chancery court granted David relief, which implies that the court

rejected Cotton Row’s unclean-hands argument.

¶40. The application of the unclean hands doctrine as an equitable bar is limited. Anderson

v. Jackson, 338 So. 3d 629, 649 (¶53) (Miss. Ct. App. 2022). The Mississippi Supreme

Court has stated that the unclean hands doctrine means that “no person as a complaining

party can have the aid of a court of equity when his conduct with respect to the transaction

in question has been characterized by wilful inequity.” In re Est. of Richardson, 903 So. 2d

51, 55 (¶15) (Miss. 2005) (quoting O’Neill v. O’Neill, 551 So.2d 228, 233 (Miss. 1989)).

Keeping in mind that “[t]he chancellor sits as the finder of fact, and the chancellor’s findings

of fact will not be disturbed unless there is manifest error,” id. at 56 (¶18), we find no error

with the chancery court’s ruling on this issue. In this case, although David unilaterally

extended his roof, Cotton Row also unilaterally decided not to seek judicial intervention but

rather to keep the wall and reinforce it despite the considerable expense. Neither party

gained a legal advantage by their pre-trial maneuvers because the proof of the key legal

issues—adverse possession and prescriptive easement—reaches back prior to David and

Cotton Row’s recent actions. Accordingly, we find the chancery court did not err in hearing

the case rather than precluding either party from relief under the unclean hands doctrine.

II. Whether the chancery court was precluded from considering

18 David’s prescriptive easement claim because of inadequate pleading.

¶41. Cotton Row also contends that David was barred from receiving any relief under his

prescriptive easement claim because he allegedly did not plead it as a cause of action. We

disagree because David begins his complaint by stating that he is filing his action “to confirm

title to certain real property and to a prescriptive easement.” (Emphasis added). Further, in

paragraphs 16-17, David specifically pleaded the elements that create a prescriptive easement

and stated:

Plaintiff and his ancestors have utilized a small strip of Defendant’s property for over forty-five (45) years to access and maintain the exterior of Plaintiff’s wall and roof. Plaintiff’s and his ancestors’ use of the easement satisfies all the conditions for a prescriptive easement under Mississippi law.

In his “prayer for relief,” David specifically requested an order confirming his “title in a

prescriptive easement.” Although he requested an easement over five feet of Cotton Row’s

property for the wall’s maintenance, Cotton Row was certainly put on notice that the issue

of the existence and extent of a prescriptive easement was included in the case. “Mississippi

is a ‘notice pleading’ state.” Nelson v. Nelson, 271 So. 3d 613, 617-18 (¶13) (Miss. Ct. App.

2018) (quoting Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶35) (Miss. 2011)).

“Under Rule 8, a complaint need only contain ‘a short and plain statement of the claim

showing that the pleader is entitled to relief,’ and ‘a demand’ for judgment.” Id. (citing

M.R.C.P. 8). Accordingly, the chancery court did not err in considering David’s prescriptive

easement claim.

III. Whether the chancery court erred in finding that David had a viable adverse possession or prescriptive easement claim to the

19 wall.

¶42. The chancery court found that David had presented sufficient proof to establish all

elements of adverse possession to half of the pawnshop wall, as well as a prescriptive

easement to the use of it. Both parties appealed different portions of this ruling. Cotton Row

contends that David had failed to prove that his use was exclusive, continuous, and hostile.

David argues that the chancery court erred in finding that the wall was not a party wall and

that he had only adversely possessed half, not all, of the wall.

Elements of Adverse Possession and Prescriptive Easement

¶43. Mississippi Code Annotated section 15-1-13(1) (Rev. 2019) provides that a party may

claim property after ten years of actual adverse possession.8 To establish a claim of adverse

possession, David must show that his or his predecessors’ possession of the wall 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.”

Anderson, 338 So. 3d at 641 (¶25) (citing Frazier v. Frazier, 31 So. 3d 1218, 1220 (¶6)

(Miss. Ct. App. 2009)). A party who claims adverse possession must show by clear and

8 Section 15-1-13(1) provides:

1) Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1- 7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.

20 convincing evidence that each element has been met. Orcutt v. Chambliss, 243 So. 3d 757,

762 (¶15) (Miss. Ct. App. 2018) (citing Ellison v. Meek, 820 So. 2d 730, 734 (¶13) (Miss.

Ct. App. 2002)).

¶44. “[T]he standard and burden of proof to establish a prescriptive easement is the same

as a claim of adverse possession of land.” Franco v. Ferrill, 342 So. 3d 1176, 1191 (¶43)

(Miss. Ct. App. 2022). To establish a prescriptive easement, the claimant must show by clear

and convincing evidence that his “use” of the property was (1) open, notorious, and visible;

(2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and

uninterrupted for ten years. Id. (citing London & Stetelman Inc. v. Tackett, 308 So. 3d 445,

451 (¶17) (Miss. Ct. App. 2020)).

¶45. Although the general standard for establishing a prescriptive easement and adverse

possession is the same, different property interests result. Tackett, 308 So. 3d at 452 (¶18).

“A successful claim of adverse possession results in the claimant receiving ownership of the

property while a successful claim for a prescriptive easement results in the claimant receiving

an easement to use the property.” Id. (emphasis added) (citing Knight v. Covington County,

27 So. 3d 1163, 1170 (¶28) (Miss. Ct. App. 2009)).

¶46. There is also a difference between the exclusivity requirement that must be proved in

adverse possession and the exclusivity of use that must be shown to establish a prescriptive

easement. In cases of adverse possession, “[e]xclusive possession means that the possessor

evinces an intention to possess and hold land to the exclusion of, and in opposition to, the

claims of all others, and the claimant’s conduct must afford an unequivocal indication that

21 he is exercising the dominion of a sole owner.” Revette v. Ferguson, 271 So. 3d 702, 711

(¶25) (Miss. Ct. App. 2018) (emphasis added) (citing Roberts v. Young’s Creek Inv. Inc., 118

So. 3d 665, 671 (¶15) (Miss. Ct. App. 2013)). “Exclusivity, within the meaning of the

statute, means that the adverse possessor’s use of the property was consistent with an

exclusive claim to the right to use the property.” Apperson v. White, 950 So. 2d 1113, 1119

(¶15) (Miss. Ct. App. 2007).

Exclusivity in Adverse Possession

¶47. To illustrate, in an adverse possession case, Lynn v. Soterra Inc., 802 So. 2d 162

(Miss. Ct. App. 2001), we affirmed the chancery court’s finding that Soterra and Buford had

proven exclusive use of a disputed tract of land by their actions indicating a claim to sole

ownership, even though they had given others permission to use it. Id. at 168 (¶20).

Addressing the exclusive possession element of adverse possession, we stated that “the

quality and quantity of possessory acts . . . may vary[,] . . . [but] [t]he question in the end is

whether the possessory acts relied upon by the would be adverse possessor are sufficient to

fly his flag over the lands and to put the record title holder upon notice that the lands are held

under an adverse claim of ownership.” Id. at 167 (¶17). We pointed out:

Buford and Soterra did have exclusive use in this sense, as someone with perfect title does not endanger it by giving permission to others to enjoy the property as well. The other users are not hostile to the owner, since they are using with implied or explicit permission. The key factor on exclusivity is that Buford exercised the rights consistent with the authority to exclude. There was evidence that others would call Buford and ask his permission to use the road.

Id. at 168 (¶17). Thus, the adverse possessors actually proved their intent to be the sole

owners by showing that others recognized their claim and sought permission from them to

22 use the property. Id. We held that such use did not undermine the exclusive possession of

the adverse possessors. Id.

¶48. Similarly, in Moran v. Sims, 873 So. 2d 1067, 1070 (¶13) (Miss. Ct. App. 2004),

although we began examining the elements of a prescriptive easement, we found that Sims

had established adverse possession of a driveway. In that case, Moran’s property surrounded

Sims’ on three sides, and Sims’ access to the state highway was on a driveway across

Moran’s property. Id. at 1068 (¶2). Testimony at trial established that Sims and his

predecessors had used the driveway for over fifty years, id. at 1069 (¶3), and that Sims had

purchased gravel for the driveway as well. Id. at (¶9). Although a school bus driver testified

that he had driven the bus down the driveway to pick up children in 1956 and 1957, id. at

(¶6), we stated that “‘[e]xclusive’ use does not mean that no one else used the driveway.

Exclusivity here means that the use was consistent with an exclusive claim to the right to

use.” Id. at 1070 (¶10). We noted that the driveway was used by the Sims family and those

whom they permitted to do so and that their home was the only one on the driveway. Id. We

found sufficient proof to establish exclusive use, id., and concluded that “the elements of

adverse possession were sufficiently proven.” Id. at (¶13).

Exclusivity in Prescriptive Easement

¶49. In contrast, the Mississippi Supreme Court found that the element of exclusivity in

establishing a prescriptive easement was different from the exclusivity required in an adverse

possession case in Keener Properties L.L.C. v. Wilson, 912 So. 2d 954 (Miss. 2005). There

Wilson claimed a prescriptive easement of ingress and egress along a road that crossed the

23 Keener property. Id. at 955 (¶2). Keener claimed that Wilson had not proven the exclusive

use element needed to establish a prescriptive easement arguing the Lynn definition of

exclusivity. Id. at 956 (¶5). But the Supreme Court limited the application of the Lynn case,

stating:

Keener’s use of the Lynn case to establish the requirements of a prescriptive easement is acceptable, but the use of the case in order to define the term “exclusive” is not viable because of the subtle distinctions which exist when using the term in relation to adverse possession and a prescriptive easement.

Id. at 957 (¶8) (emphasis added). Citing Board of Trustees of University of Mississippi v.

Gotten, 119 Miss. 246, 80 So. 522 (1919), and Jenkins v. McQuaid, 153 Miss. 185, 120 So.

814 (1928), the Supreme Court noted that the fact that a roadway or alleyway had been open

to the public at large did not affect the prescriptive easement claim by either Gotten or

Jenkins. Keener, 912 So. 2d at 957 (¶9). The Supreme Court quoted Jenkins, stating:

An individual may acquire an easement of way by adverse use[] though at the same time the public uses the way. It is therefore not necessary for the use of the alley by Jenkins to have been exclusive of all other persons; others, also, may have used it as a means of ingress and egress to their property. If Jenkins, under a claim of right, used the alley constantly for the statutory period, improving and keeping it in condition for his use, as testified by him (which testimony is not disputed), then his right thereto became perfect and irrevocable after such statutory period of time, and is as efficacious in vesting in him the enjoyment of such right as though it had been formally conveyed in writing.

Id. (quoting Jenkins, 120 So. at 816).9 Thus, use of property by others does not preclude the

establishment of a prescriptive easement.

9 It is noted, however, that the ten years’ use of an easement establishes only a right to that use. It does not vest title to the property as does a finding of adverse possession pursuant to Mississippi Code Annotated section 15-1-13.

24 Joint Use

¶50. Although joint use does not defeat a prescriptive easement claim, Paw-Paw Island

Land Co Inc. v. Issaquena and Warren Counties Land Co., 51 So. 3d 916, 926 (¶41) (Miss.

2010), we have held that joint use is insufficient to establish adverse possession. Riverland

Plantation P’ship v. Klingler, 942 So. 2d 294, 298 (¶14) (Miss. Ct. App. 2006). In

Riverland, Klinger, d/b/a Kingspoint Farms, owned the property adjoining Riverland

Plantation that both parties used for hunting camps and was accessible only by a four-

wheeler. Id. at (¶2). When a dispute arose over approximately twenty-nine acres along the

property boundary, Kingspoint filed suit to quiet title and Riverland counterclaimed that it

had acquired ownership by adverse possession. Id. at 296 (¶4). The chancery court found

that Riverland had failed to prove adverse possession, id. at 297 (¶10), and we affirmed,

finding that Riverland had failed to prove exclusivity by clear and convincing evidence. Id.

at 298 (¶14). We pointed out that both parties used the disputed property, specifically

Kingspoint had placed deer stands on the property. Id. We cited Gadd v. Stone, 459 So. 2d

773, 774 (Miss.1984), which dealt with a boundary dispute concerning a barbed wire fence,

for the proposition that jointly using property did not establish adverse possession.

Riverland, 942 So. 2d at 298 (¶14).

¶51. We have recently cited Riverland in Winters v. Billings, 281 So. 3d 75, 82-83 (¶22)

(Miss. Ct. App. 2019), where we affirmed a chancery court’s finding of no adverse

possession because there was no exclusive use shown when both parties had used the

disputed property. In that case, the Billingses had a survey done in 1984 and erected a picket

25 fence and later a chain-link fence ten feet north of their southern boundary line. Id. at 79

(¶2). The Winterses purchased the neighboring land and maintained the fence and

surrounding area, and used the property just south of it for barbecue events, softball and

volleyball. Id. at (¶3). Billings testified that he talked to one of the Winterses about the

property line and gave him permission to use the land; the man denied this discussion of

permission occurred. Id. When a survey showed that the fence which had been destroyed

was really ten feet north of the Billingses’ property line as the Billings originally contended,

they sued to adjudicate their ownership. Id. at 79-80 (¶6). The Winterses alleged ownership

of the property by adverse possession. Id. at 80 (¶7). The chancery court denied the

Winterses’ claim, id. at (¶8), and on appeal, we affirmed. Id. at 83 (¶23). Besides agreeing

that the Winterses had failed to prove some of the other elements of adverse possession, we

noted that both accessed and used the property. Id. at 82 (¶22). We pointed out that the

Winterses had erected nothing to exclude the Billingses from the land and that the Billingses

had, among other things, kept their side of the fence cut. Id. Finding that the Winterses had

not shown exclusive use by clear and convincing evidence, we affirmed the chancellor’s

judgment. Id.

Application of Precedent to this Case

¶52. In this case, David did not prove by clear and convincing evidence the exclusive use

needed to establish adverse possession of the wall. He and his parents indisputably jointly

used the wall, first with Solomon as the owner of the furniture store building and then with

the Perrys when they purchased it to create the pawnshop. David and his parents never

26 “permitted” the Perrys to use the wall, nor did they act in such a manner to indicate that they

were claiming sole ownership of it in its entirety. Additionally, because the wall was jointly

used, David did not establish adverse possession of even half of it because the Perrys were

using the entire wall to support their pawnshop. David’s and his parents’ use was not

indicative of an intention to assert sole ownership of the wall, and we hold the chancery court

erred in finding that David had proved adverse possession of the wall or even a part of the

wall.

¶53. However, we affirm the chancery court’s finding that David had proved his right to

a prescriptive easement for the use of the wall because the exclusivity requirement of a

prescriptive easement does not require a showing of use to the exclusion of all others. David

and his parents used the wall, in whole or in part, to support the roof of the alleyway for the

ten years required to establish a prescriptive easement.10 Although the use was joint with the

Perrys, it still was use that satisfied the exclusivity requirements as noted in Kenner and

Jenkins.

¶54. Because he holds a prescriptive easement for the use of the wall, David enjoys certain

protections and rights. In easement cases, the easement holder (the dominant estate) and the

owner of the land subject to the easement (the servient tenement) must not interfere with each

other’s use. Kennedy v. Anderson, 881 So. 2d 340, 346 (¶25) (Miss. Ct. App. 2004). For

example, in Kennedy, we held that the owner of the dominant estate (the easement holder of

a road) is entitled to work on the easement at his own expense so as to keep it reasonably

10 See supra note 8; Tackett, 308 So. 3d at 452 (¶18).

27 usable as a road. Id. (citing Lindsey v. Shaw, 210 Miss. 333, 340, 49 So. 2d 580, 584

(1950)). Moreover, the servient landowner cannot damage the easement over his property.

Muirhead v. Cogan, 158 So. 3d 1259, 1264 (¶22) (Miss. Ct. App. 2015). In Muirhead,

siblings divided land they had inherited from their parents. Id. at 1260 (¶3). They reserved

a twenty-foot-wide easement over the parcel given to Muirhead. Id. Other heirs later

abandoned the easement after Muirhead built a new road and culvert, which washed away

the gravel on the easement. Id. at 1261 (¶6). At some point, Muirhead dug a large v-shaped

ditch across the easement, preventing its use by Cogan, the remaining heir who was

dependent on the easement to get to her land. Id. Cogan hired a contractor to fill in the

ditch, but shortly thereafter, she found a trench dug in the center of the easement where water

settled, causing severe erosion. Id. at (¶7). In the lawsuit and appeal that followed, we

deferred to a chancery court’s finding that Muirhead had destroyed a gravel road easement

and that Muirhead was liable for compensatory damages for the easement’s destruction. Id.

at 1265 (¶23). In the case before us, because David has established a prescriptive easement

to the use of the wall, Cotton Row as the servient landowner cannot destroy the wall, or it

would be liable to David for damages if it does.11

IV. Whether the chancery court erred in finding that the pawnshop wall was not a party wall.

¶55. To the chancery court, David contended that the pawnshop wall became a “party wall”

because his parents and the Perrys jointly used it. The chancery court rejected this argument

11 Again, David’s rights flow from his prescriptive easement, not from any title ownership interest in the wall because he did not establish adverse possession pursuant to Section 15-1-13.

28 because the pawnshop property owners (first, the Alfords and Solomon, then the Alfords and

the Perrys, and finally David and the Perrys) had no written or oral agreement to use the wall

as a party wall. We agree with the chancery court.

¶56. In Mississippi, the creation of a party wall is addressed in Mississippi Code Annotated

section 89-15-3 (Rev. 2021), which provides:

If the owner of any lot shall build a substantial and durable brick or stone wall on the line which divides his lot from another, and the owner or lessee of that other lot should desire to erect an adjoining building and connect the same with the building already erected, so as to make the wall of the former building serve as the wall of his own, he may do so by paying to the owner of the first wall half the value thereof, or half the value of so much of the former wall as he may use as a wall to his own house; but he shall not be at liberty to use the former wall in any way which may prove dangerous or detrimental to the owner, except he may close lights therein.

Key elements then for the creation of a party wall include: (1) the wall be built on the

property line, (2) the party desiring to connect to the wall of an adjoining building pay the

owner of the wall half of the value, and (3) the parties formally agree to make the wall a party

wall. The agreement itself flows from and confirms the mutual ownership rights of the

parties. The statute further provides that the agreement between the two property owners is

binding regardless if it is written.12

¶57. Entering into an agreement to establish a party wall affords the co-owners mutual

protections and imposes mutual responsibilities.

12 See Mississippi Code Annotated section 89-15-1 (Rev. 2021):

Any agreement for erecting walls which parties may make who own adjoining lots and desire to build party walls, shall be binding, whether in writing or not; and in case of the failure of either party to comply with his contract, the other may have an action for damages.

29 [Owners of a party wall] are burdened by certain obligations to each other, which they cannot arbitrarily ignore; that whether they own the wall as tenants in common, or each owns one half in fee simple and has an easement in the other half, this ownership or easement cannot be destroyed or brought to an end by one proprietor removing the party wall without the other’s consent, unless the condition of the wall justifies it. These principles are consonant with common sense and justice.

Hoffman v. Kuhn, 57 Miss. 746, 748-49 (1880).

¶58. An example of an agreement to establish a party wall is found in Lexington Lodge, No.

24, F. & A.M. v. Beall, 94 Miss. 521, 49 So. 833, 833-834 (1909). In that case, the Lodge

owned the south half of lots 60 and 61 in the city of Lexington and Samuel Hoskins owned

the north half. Id. at 833. After his death, Hoskins’s administrator confirmed in a deed that

during his lifetime, Hoskins conveyed a six-foot strip of land on the edge of his property to

the Lodge “upon the condition that Hoskins should have and enjoy the right or privilege of

connecting with the then contemplated Masonic Hall . . . .” Id. The Mississippi Supreme

Court held that “the evidence leaves no doubt that the mutual intention was that the wall

should be used as a party wall.” Id.

¶59. In this case, the Alfords were clearly aware of the need for an express agreement with

a neighboring landowner to create a party wall because they included such language in the

deed conveying the other alleyway to the City of Cleveland in 1980. However, David

presented no proof of any oral or written agreement between his parents and Solomon or the

Perrys for their joint use of the pawn shop wall. Moreover, the wall was not built on the

boundary line but was erected solely on the furniture store/pawnshop property, and the

Alfords paid nothing for its use. Therefore, the wall did not meet the requirements of the

30 statute to create a party wall.

¶60. Recognizing this deficiency, David now argues that his prescriptive use of the wall

made it a party wall and cites Denson v. George, 642 So. 2d 909 (Miss. 1994), as authority.

First, we note that David did not plead that he had rights to the wall because it was a party

wall in his complaint; he did not raise this claim until he responded to Cotton Row’s motion

for summary judgment. Even then, he only argued that his joint use of the wall made it a

party wall. He did not argue his alternative theory that his prescriptive use of the wall made

it a party wall to the chancery court—not in his summary judgment response or in his Rule

59 motion. An issue not raised to the trial court may not be raised on appeal. Harrison v.

Howard, 356 So. 3d 1232, 1246 (¶45) (Miss. Ct. App. 2023) (quoting Austin v. State, 971

So. 2d 1286, 1288 (¶8) (Miss. Ct. App. 2008)). “Before an issue may be assigned and argued

in this Court, it must first be presented to the trial court.” Id. (quoting Williams v. Dep’t of

Hum. Servs., 116 So. 3d 176, 181 (¶12) (Miss. Ct. App. 2013)). Accordingly, David is

procedurally barred from now arguing that his prescriptive use of the pawnshop wall made

the wall a party wall.

¶61. Notwithstanding the procedural bar, we find there is no Mississippi precedent to

support David’s argument. The case he cites, Denson, reached no decision on whether

prescriptive use creates a party wall. The Denson case involved two buildings that appeared

to share a wall between them that extended above the roofline. Denson, 642 So. 2d at 914.

However, the testimony of a contractor revealed that the two buildings in fact had two

separate walls (one for each building) and they did not share a wall. Id. Because of this

31 physical fact, even though Denson testified that the prior owners had agreed to the joint use

the alleged party wall, the Mississippi Supreme Court concluded that no party wall existed

between the two buildings. Id. In the alternative, Denson then argued that his and his

neighbor’s roofs were attached to the wall that extended above the roofline. Id. at 915.

Denson contended that his roof depended on that wall for support and that the wall then

became a party wall by prescription. Id. The Supreme Court reviewed the statute on the

creation of a party wall, Mississippi Code Annotated section 89-15-3, and held that it

required the construction of a single wall that services both parties. Id. Because the facts

showed that no single wall was built, the statute was not satisfied. Id. The Court noted that

it was possible for the chancellor to conclude that Denson had acquired a prescriptive

easement to attach his roof to the wall “even though the wall was not a party wall.” Id. But

the Supreme Court declined to address the issue of whether a prescriptive use had been

established because the issue had not been appealed. Id. Accordingly, Denson did not hold

that a prescriptive use could create a party wall.

¶62. Although creators of a party wall also have easements of use to the other party’s half,

see Binder v. Weinberg, 94 Miss. 817, 48 So. 1013, 1016-17 (1909),13 establishing an

easement by prescription of use of a wall does not bestow on the easement holder ownership

of the wall. Delancey v. Mallette, 912 So. 2d 483, 488 (¶16) (Miss. Ct. App. 2005) (“[T]he

‘claim of ownership’ element in an action for prescriptive easement is not a claim to take title

13 In Binder, the Mississippi Supreme Court noted that the creation of a party wall (i.e., by an express agreement of the parties to share in the use of a wall built on the common boundary line of the property of each), also created mutual easements of use as a result of their agreement. Id. at 1017.

32 to a strip of land over which an easement runs, but rather it is a claim to own the easement

itself.”). Therefore, although David established a prescriptive easement to use the wall, he

did not establish ownership of (i.e., title to) the wall.14 Although a prescriptive easement

grants the holder many of the protections and responsibilities, including the right to use the

wall, as held by owners of a party wall, the easement does not transform the wall into a

legally established party wall. Accordingly, we find no error in the chancery court’s rejection

of David’s party wall argument.

V. Whether the chancery court erred in requiring Cotton Row to convey David its interest in the wall.

¶63. Because we hold that David did not establish ownership of the wall by adverse

possession, the ownership of the wall continued to be held by the Perrys and now Cotton

Row. Although David holds a prescriptive easement to the wall’s use, there is no legal basis

to require Cotton Row to divest itself of the wall, and we reverse and vacate the part of the

14 David cites other jurisdictions as if they have held that prescriptive easements have created party walls. However, these cases merely deal with situations similar to the case here; namely, when there is no agreement to create a party wall, can a party still establish a prescriptive easement for its use. For example, in Waterman S.S.Corp. v. McGill Institute, 149 So. 2d 773, 779 (Ala. 1961), the Court discussed only whether the use of a building’s wall by an adjoining landowner to build a garage created a prescriptive easement, not whether that use made it a “party wall.” Another case David cites, Sobien v. Mullin, 783 A. 2d 795, 798 (¶8) (Pa. Super. Ct. 2001), also turned on whether Sobien had established a prescriptive easement to use a wall:

Under the undisputed facts here presented, the wall in question was wholly upon Mullin’s property and thus not a true party wall as contemplated by statute. Nor was there a scintilla of evidence of any express grant or intention to treat it as a party wall by the builder. Thus, the Sobiens’ right to use Mullin’s wall was wholly dependent upon the finding of a prescriptive easement.

33 chancery court’s judgment ordering the survey, valuation, and conveyance of the wall.

VI. Whether the chancery court erred in requiring David to pay Cotton Row for securing the wall.

¶64. In both its judgment and order, the chancery court noted the amount of money that

Cotton Row had spent to reinforce the wall. In the July 12, 2021 final judgment, the court

ordered David to remove the support system Cotton Row had installed, indicating David

could build his own system on his property. In his post-judgment motion, David informed

the court that the system Cotton Row had constructed was adequate and did not need to be

removed. After considering the parties’ post-judgment motions, the chancery court gave

David an alternative option in its order revising the final judgment. If he chose to accept the

support system, then he could pay Cotton Row for the land on which it was built, as well as

the value of the system. On appeal, David contends that the chancery court erred in this

ruling and argues that because he had established a prescriptive easement to use the wall,

Cotton Row was prohibited from interfering with that use. We agree.

¶65. As noted above, in easement cases, the owner of the land subject to the easement must

not interfere with the easement holder’s use. Kennedy, 881 So. 2d at 346 (¶25). In that case,

we held that the owner of the dominant estate (the easement holder of a road) was entitled

to work on the easement at his own expense so as to keep it reasonably usable as a road. Id.

(citing Lindsey, 210 Miss. at 340, 49 So. 2d at 584). In Lindsey, the Supreme Court held that

a gate across a private way did not have to be removed, but nailing it shut or keeping it

locked was an unreasonable interference. Moreover, tung trees along the easement roadway

had grown so big to make the easement almost completely obstructed. Id. The Supreme

34 Court ordered the landowner to remove the tree obstructions and, thereafter, it ordered the

easement holder to make any other repairs on the roadway. Id. at 584. In Muirhead, 158 So.

3d at 1265 (¶24), we found sufficient evidence to warrant the payment of damages by the

servient landowner who destroyed a gravel roadway easement.

¶66. Because we affirm that David has established a prescriptive easement to the use of

Cotton Row’s wall, Cotton Row must not interfere with that use or risk liability for damages.

Accordingly, when Cotton Row destroyed three walls of the pawn shop and determined the

need to reinforce the wall that remained, Cotton Row was merely fulfilling its obligation not

to damage or destroy David’s use of the wall.15 Thus, we reverse the part of the chancery

court’s judgment requiring David to pay Cotton Row for its costs in supporting the wall.

However, as the holder of a prescriptive easement to use the wall, David has the

responsibility to maintain and repair the wall in the future. Fratesi v. City of Indianola, 972

So. 2d 38, 43 (¶14) (Miss. Ct. App. 2008) (citing Fourth Davis Island Land Co. v. Parker,

469 So. 2d 516, 523 (Miss. 1985) (“[T]he dominant owner of an easement has the burden of

maintenance and repair, and to this end has an implied secondary easement to enter the

servient property to perform the necessary maintenance and repair.”)). Therefore, under

Fratesi, David has the right to protect his easement and the responsibility to maintain it.

Accordingly, he is entitled to accessibility to Cotton Row’s side of the wall if needed for

future maintenance.

Conclusion

15 We note that Cotton Row did not counterclaim for the reimbursement of these expenses.

35 ¶67. We affirm the chancery court’s finding that David was not barred from relief by the

doctrine of unclean hands and that David was not procedurally barred from relief on his

claim for a prescriptive easement for the use of the wall. We further affirm the chancery

court’s rejection of David’s claim that the wall was a party wall and affirm the court’s ruling

that David had established a prescriptive easement for the use of the wall. But we reverse

the chancery court’s ruling that David had established an ownership interest in the wall by

adverse possession.

¶68. We hold that David has no ownership interest in the wall, which is located on Cotton

Row’s property and was included in Cotton Row’s deed. Cotton Row has free and clear title

to the entire wall. Therefore, there is no equitable need for Cotton Row to be ordered to sell

it to David. Accordingly, we reverse and vacate the part of the chancery court’s ruling

concerning the survey, valuation, and transfer of title to the wall by Cotton Row to David.

¶69. Again, we hold that David has proved that he has a prescriptive easement for the use

of the wall. David has a duty to maintain his easement, but he may not unreasonably

interfere with Cotton Row’s property rights. Because David holds a prescriptive easement

for the wall’s use, Cotton Row may not demolish the wall or otherwise interfere with David’s

easement. When Cotton Row tore down the other three pawnshop walls, Cotton Row was

obligated to support the remaining wall if it determined the wall needed reinforcement.

Accordingly, we reverse the part of the chancery court’s ruling requiring David to reimburse

Cotton Row for its expenses in supporting the wall.

36 ¶70. Because there will be no removal of the structural supports constructed by Cotton

Row, the provisions of the chancery court’s judgment concerning David’s liability for any

harm caused by the wall’s removal and David’s obligation to maintain insurance to cover any

such harm are unnecessary and vacated.

¶71. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED, VACATED, AND RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED, VACATED, AND RENDERED IN PART.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.