Delancey v. Mallette

912 So. 2d 483, 2005 WL 1530255
CourtCourt of Appeals of Mississippi
DecidedJune 28, 2005
Docket2003-CA-00357-COA
StatusPublished
Cited by12 cases

This text of 912 So. 2d 483 (Delancey v. Mallette) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delancey v. Mallette, 912 So. 2d 483, 2005 WL 1530255 (Mich. Ct. App. 2005).

Opinion

912 So.2d 483 (2005)

Honer Troy DELANCEY and Irene R. Delancey, Appellants
v.
Conrad M. MALLETTE, Appellee.

No. 2003-CA-00357-COA.

Court of Appeals of Mississippi.

June 28, 2005.
Rehearing Denied October 11, 2005.

*485 Billy Parlin, attorney for appellants.

G. Charles Bordis, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Conrad Mallette owns a forty acre tract of land adjacent to property held by Troy and Irene Delancey. He uses this land for farming purposes, making it necessary for heavy equipment to enter his land. Troy and Irene's land is located at the end of a public road. Mallette's property can be accessed by way of a fourteen foot opening. In order to get to the fourteen foot opening, it is necessary to cross an area of Mallette's property that is located in a wetland area.

¶ 2. Mallette's property can also be accessed through a strip of land on Troy and *486 Irene's property. For more than forty years, Mallette has been using a strip of land on Troy and Irene's property. Troy and Irene knew of Mallette's use of their property, and they testified that Mallette had used the strip of land as if it were his own. The Delanceys allowed Mallette to use their property until Irene's husband died. In the year 2001, Troy constructed a gate in an effort to prevent Mallette from using the property. Mallette filed a complaint seeking an injunction against the obstruction of his access to the land and also seeking an easement. The Delanceys counterclaimed and claimed that Mallette's use of his property directly behind their home constituted a nuisance.

¶ 3. The Jackson County Chancery Court granted an implied easement to Mallette, finding that the strip of land on Troy and Irene's property was the only practical means through which heavy equipment could enter Mallette's land, and also finding that the use of Troy and Irene's land was necessary in order for Mallette to continue his farming operations. Troy and Irene appeal, raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN GRANTING MALLETTE AN EASEMENT

II. WHETHER THE CHANCELLOR ERRED IN GRANTING RELIEF NOT SOUGHT IN THE PLEADINGS

III. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN FAILING TO RULE THAT THE MOVING OF A FENCE WHICH ALLOWED CATTLE WITHIN EIGHTEEN INCHES FROM THE DELANCEY HOUSE CREATED A NUISANCE

¶ 4. Finding that Mallette failed to prove all the elements necessary to establish that he was entitled to an implied easement, we reverse and render the chancellor's grant of an implied easement. However, we find that the chancellor prematurely denied Mallette's claim for a prescriptive easement, and we reverse and remand on this issue. We affirm as to issues two and three.

FACTS

¶ 5. Irene Delancey and Conrad Mallette have been neighbors for more than forty years. Mallette owns a forty acre tract immediately north of the real estate owned by the Delanceys. Mallette took title to this land in 1956 and has been the fee simple owner of that tract since that time. Irene has been at her residence since 1951 and took title to her land in 1972. Troy is Irene's son and obtained an interest in Irene's property in 2000 after Tom Delancey, Irene's husband and Troy's father, died. At that time, Irene deeded her land to Troy, subject to a life estate held by Irene.

¶ 6. Troy and Irene's real estate is adjacent to Delancey Road, which is maintained by Jackson County, Mississippi. Delancey Road comes to a dead end at Troy and Irene's property, which stands between the end of Delancey Road and Mallette's property.

¶ 7. Mallette uses his tract of land for the purposes of farming cattle, growing crops, and growing timber. His farming operations necessitate the use of heavy equipment in order to maintain his property as a field and pasture. Mallette traversed a strip of land on Troy and Irene's property that is approximately twenty-five feet wide and two hundred fifty feet long in order to access Delancey Road. He has used this strip of land continuously since 1957. Since 1972, Mallette has used George County Co-Op Supply to plant, fertilize, and treat Mallette's land. The *487 trucks used by George County Co-Op Supply weigh 14,000 pounds without any load. They have used Troy and Irene's land for ingress and egress continuously since 1972 and have never sought permission from the Delanceys to access this land.

¶ 8. Mallette owns another parcel of real estate to the northeast of his forty acre parcel. The two parcels are catty-cornered to one another and share a common boundary. The only access from one parcel to the other is a fourteen foot opening. In order to get to the fourteen foot opening, it is necessary to cross an area of Mallette's property that is located in a wetland area. Mallette introduced into evidence a letter from Walter E. Walker, County Agent for Jackson County. He stated that the opening is inaccessible when the weather is adverse. His letter stated that "cattle production, row-crop farming, winter forest production and other related operations that are successful to one's farm/land requires year round access to areas where cattle or crops are being produced. This road will not provide that access during times when access is needed most." A representative from George County Co-Op testified that his agency would not traverse the wetland area with heavy equipment.

¶ 9. Mallette owns a third parcel of real estate located to the south and west of Troy and Irene's property, which the chancellor considered as a second alternative access to Mallette's forty acre tract. Access from this parcel to his forty acre tract is by way of a four foot passageway owned by Mary Delancey.[1] Mary Delancey has verbally agreed to allow Mallette to use this four foot strip of land, which Mallette uses to allow his cattle to cross from one feeding area to another. This strip of land allows Mallette to transfer one cow at a time between his respective properties. The chancellor viewed this second alternative access, which is between two fence lines. She held that the four foot passageway was too narrow for heavy equipment to traverse.

¶ 10. The Delanceys have seen Mallette make use of their strip of land. Irene testified that Mallette has used her strip of land for as long as she has been neighbors with Mallette. Troy, who was thirty eight years old at the time of the trial, testified that Mallette has been using the strip of land for as long as he can remember. Irene never tried to stop Mallette from using the land because her husband allowed Mallette to make use of the land. Troy never tried to stop Mallette from using the land because he had no ownership interest in the land until the year 2000.

¶ 11. In 2001, Troy constructed a gate to prevent Mallette from using the strip of land needed to gain access to his property. Mallette sought an injunction against this obstruction and also sought an easement. Irene and Troy filed a counterclaim, alleging that the cattle on Mallette's property caused a nuisance, or alternatively, that they were entitled to part of Mallette's land by adverse possession. The chancery court granted Mallette an implied easement over the strip of land on Troy and Irene's property, enjoined Irene and Troy from obstructing Mallette's use of the parcel, dismissed Troy and Irene's claim of nuisance, dismissed Troy and Irene's claim for adverse possession, and enjoined the parties from harassing one another.

ANALYSIS

I.

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Bluebook (online)
912 So. 2d 483, 2005 WL 1530255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delancey-v-mallette-missctapp-2005.