Haik v. Gammill

122 So. 3d 771, 2013 WL 674841, 2013 Miss. App. LEXIS 62
CourtCourt of Appeals of Mississippi
DecidedFebruary 26, 2013
DocketNo. 2011-CA-00975-COA
StatusPublished
Cited by3 cases

This text of 122 So. 3d 771 (Haik v. Gammill) 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
Haik v. Gammill, 122 So. 3d 771, 2013 WL 674841, 2013 Miss. App. LEXIS 62 (Mich. Ct. App. 2013).

Opinion

CARLTON, J.,

for the Court:

¶ 1. This appeal stems from a complaint filed in the Adams County Chancery Court by Kenneth G. Haik and Diana W. Haik, alleging that James D. Gammill, Britton D. Gammill, John T. Ball, and Eileen Ball1 possessed no right to access their respective properties by use of an existing driveway (hereinafter “Service Road”) on the Haiks’ property. The Gammills and Balls filed counterclaims and amended counterclaims asking the chancellor to determine that the Gammills and Balls had an easement over the Service Road to access their respective properties.

¶ 2. The chancellor found the Gammills and Balls were entitled to an implied easement by necessity, providing a non-exclusive easement for all purposes of ingress and egress on the existing gravel Service Road. The record shows that the grantee of the estate conveyed this easement along the Service Road in 1967 when subdividing commonly owned lots that were part of her dominant estate. The chancellor found the entitlement to an implied easement by necessity existed after determining that the Haiks’ property, along with the Gammills’ and Balls’ properties, constituted subdivided parts of a previously commonly owned estate. The chancellor further determined that the Gammills and Balls possessed no access to their properties except by using the implied easement by necessity along the Service Road.

¶ 3. With respect to the cross-appeal, the chancellor found no abandonment of an express easement conveyed in 1968 by ad[774]*774jacent property owners for the building of a dedicated road to access South Union Street. The chancellor found no abandonment of this express easement even though no such road had even been built. In his judgment, the chancellor also ordered the Gammills and Balls to maintain the Service Road.

¶ 4. Finding substantial evidence in the record supporting the decision and judgment of the chancellor, we find no abuse of discretion and affirm. See Johnson v. Hinds Cnty., 524 So.2d 947, 956 (Miss.1988).

FACTS

¶ 5. The Haiks filed a complaint in the Adams County Chancery Court alleging that the Gammills and Balls possessed no right to access each of their respective properties by use of the Service Road located on the Haiks’ property. The Gam-mills and Balls responded by filing a counterclaim and amended counterclaim requesting the chancellor to determine that the Gammills and Balls possessed an easement over the Service Road, allowing them to access their respective properties.

¶ 6. None of the parties disputed that an express easement for ingress and egress existed over the Service Road, granted by the Haiks’ predecessors in title pursuant to the terms of a deed executed on January 5, 1968. However, the Haiks contended that the easement over the Service Road is appurtenant, by its express terms, only to a certain 2.3-acre lot owned by Pat Doherty and Bill Crews. The Haiks asserted that the easement failed to convey a right of ingress or egress to the properties owned by the Gammills and Balls. The Haiks argued that the Gammills and Balls should be required to access their properties over a separate easement (hereinafter referred to as the Dedicated Road easement) abutting their respective lots and also conveyed by the January 1968 deed.

¶ 7. The record reflects that Louise Met-calfe Williams, the prior owner of the property at issue, subdivided her property 2 in 1967 and conveyed a 2.3-acre tract of land to her nephew and his wife, William and Isabel Adams. The 2.3 acres of land did not abut a public road. The deed stated:

And for the same consideration, I do hereby give and grant unto the Grantees a right-of-way and easement through the “Ravenna” property, extending from the easterly end of Ravenna Road as shown on the map of survey hereto attached, and running alongside of and parallel to the existing gravel and macadam access and service road to the tract of land hereby conveyed, which right-of-way and easement is for the purpose of installing and maintaining gas, electricity, water, sewage and other utility services from existing service connections on Ravenna Road to the tract of land hereby conveyed.

Williams then built a house on a 3.1-acre lot where the Service Road is located (known as the “Ravenna house lot”).

¶ 8. The Gammills and Balls each subsequently received a separate and distinct easement for an adjacent property to access a public roadway, South Union Street. With respect to this alternate access to the Gammills’ and the Balls’ properties, the chancellor’s findings reflect that on January 5, 1968, both Williams and Roane Fleming Byrnes, the owner of the adjacent Ravenna property known as “Ravenna-side,” conveyed to Williams and Isabel Adams, and their heirs and assigns, a “perpetual, non-exclusive right[-]of[-]way and easement” across Ravenna and Raven-[775]*775naside from South Union Street. The right-of-way and easement conveyance also contained the following language:

Until such time as a roadway is built and completed on the right-of-way here-inabove described, for the same consideration herein expressed, the undersigned Mrs. Louise Metcalfe Williams does hereby give and grant unto [William and Isabel Adams], their heirs, successors, and assigns, a non-exclusive easement for all purposes of ingress and egress in, on, over and across the presently existing gravel and macadem access and service road extending from the east end of Ravenna Road as shown on the plat hereto attached to the 2.3[-]acre tract of the Grantees as shown on the plat hereto attached.

The chancellor stated that this conveyance “did not say who was to build the roadway or when the roadway was to be built.” The chancellor also noted that the minutes of the Natchez Planning Commission reflected that the property owners did not want to have the new street constructed and wanted to access their lots through the service road as previously conveyed to the Adamses.3

¶ 9. The record reflects that from 1971 to 1973, Williams further subdivided the Ravenna property by conveying three additional common lots to the Adamses. These three lots did not include, or reference, a conveyance of the right-of-way across the Dedicated Road easement conveyed by Williams and Byrnes (the property owner of the adjacent Ravennaside). Additionally, the 1971 to 1973 conveyances of additional common lots failed to include an express easement along the Service Road; instead, “all recorded rights[-]of[-]way, easement roadways, power lines and railroads appearing of record or observable on the ground” were expected from all three conveyances.

¶ 10. The Adamses later sought permission from the Natchez Planning Commission to divide one of the common lots into two separate lots. The Adamses then conveyed one of those lots to Donald and Lynn Ogden in 1981. The- Ogdens later conveyed the tract of land back to the Adamses.

¶ 11. After the Adamses passed away, their heirs conveyed all four tracts to the Gammills by a deed dated July 5, 1994. The deed conveyed the Service Road easement as well as the Dedicated Road easement. In 1998, the Gammills conveyed one of the tracts to the Balls, and this conveyance also included the Service Road easement and Dedicated Road easement. From 2002 to 2007, tracts of the property were conveyed to Billie F. Dean,4 Reuben Harper, Patrick Doherty, and Bill Crews Jr.

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Bluebook (online)
122 So. 3d 771, 2013 WL 674841, 2013 Miss. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haik-v-gammill-missctapp-2013.