Heidkamper v. Odom

880 So. 2d 362, 2004 WL 1832856
CourtCourt of Appeals of Mississippi
DecidedAugust 17, 2004
Docket2003-CA-00882-COA
StatusPublished
Cited by4 cases

This text of 880 So. 2d 362 (Heidkamper v. Odom) 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
Heidkamper v. Odom, 880 So. 2d 362, 2004 WL 1832856 (Mich. Ct. App. 2004).

Opinion

880 So.2d 362 (2004)

Herman E. HEIDKAMPER, Appellant
v.
W.W. ODOM, DeAnna Odom and Charlotte LeBlanc, Appellees.

No. 2003-CA-00882-COA.

Court of Appeals of Mississippi.

August 17, 2004.

*363 Lee B. Agnew, Kate S. Eidt, Jackson, attorneys for appellant.

W.W. Odom, DeAnna Odom and Charlotte LeBlanc, appellees, pro se.

EN BANC.

KING, C.J., for the Court.

¶ 1. Charlotte LeBlanc, W.W. Odom and DeAnna Odom sought an injunction to enjoin Herman Heidkamper from further flooding their land with overflow from his pond. The Chancery Court of Hinds County enjoined Heidkamper from further damaging the Odoms' property, and ordered him to install additional drainage pipes, make repairs, and pay damages to LeBlanc in the amount of $4,000, and $2,000 jointly to the Odoms and LeBlanc for attorney's fees. Aggrieved by this decision, Heidkamper appeals, and asserts the following quoted issues:

I. The Chancellor erred in his issuance of injunctive relief by failing to counterbalance his broad discretion with his duty to apply great caution, care and deliberation.

II. The Chancellor erred in his issuance of injunctive relief in so far as the record contained conflicting testimony pertaining to the character and effects of the Appellant's pond.

III. The Chancellor's issuance of injunctive relief at the trial level was improper due to the absence of imminent, irreparable harm.

IV. The Chancellor erred by issuing a mandatory injunction without the evidence reaching the required burden of proof.

*364 V. The Chancellor's failure to balance the equities between the parties resulted in an unfounded depravation of the use and enjoyment of Appellant's pond.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. W.W. and DeAnna Odom have lived for twenty-one years on a two-plus acre lot in Raymond where they maintain dairy cows. LeBlanc has lived on a similar sized lot, to the north of the Odoms, for about eight years. Herman Heidkamper purchased the lot situated between the Odom and LeBlanc properties. Sometime in the year 2001, Heidkamper built a 0.3 acre pond on his property. LeBlanc and the Odoms had no problem with the pond until Heidkamper built a dam on the side of the pond adjacent to the Odom property. Subsequently, moderate amounts of rain began to cause the pond to overflow onto the property of the Odoms, and caused water to back up on LeBlanc's property. In an attempt to correct the overflow problem, Heidkamper installed a drainage pipe from the pond to the front of his property, and also built a retaining wall toward the road from the pond on the Odom/Heidkamper property line.

¶ 3. On November 14, 2001, Charlotte LeBlanc and the Odoms filed a complaint in the Chancery Court of Hinds County for injunctive relief and damages, alleging that their properties were damaged from the overflow of Heidkamper's pond.

¶ 4. The Odoms alleged that water overflowed and flooded the small barn used for sheltering their dairy cows, and damaged their fence by washing out its stable foundation. The Odoms also alleged that the retaining wall Heidkamper built encroached two inches onto their property.

¶ 5. LeBlanc alleged that the back-up of water onto her property washed out cavities in the landscape, and rendered a portion of her pasture a useless bog. She also claimed that Heidkamper damaged her fence with his vehicle, killed vines which she had cultivated along their common property line, and that the flooding ruined a sump pump of hers which had to be reinstalled in concrete.

¶ 6. In his answer, Heidkamper alleged that the saturated condition of the Odom and LeBlanc properties was due to the natural topography of the land, as it existed prior to the construction of his pond.

¶ 7. On September 17, 2002, a hearing was held. On November 18, 2002, the chancellor issued a ruling, which (1) permanently enjoined Heidkamper from further flooding the Odom and LeBlanc properties and from intentionally destroying any plants belonging to LeBlanc, (2) ordered him to lower the level of his pond by two feet, (3) to install two additional drain pipes, and (4) to repair the fences of both the Odoms and LeBlanc. The chancellor also ordered Heidkamper to pay $4,000 in damages to LeBlanc for the purposes of repairing the cavities on her property caused by the backup of water from the overflow of Heidkamper's pond, and to pay $2,000 jointly to the Odoms and LeBlanc for attorney's fees. The chancellor held that the muddy floor in the Odoms' shed was not caused by Heidkamper's pond, and found it unreasonable to require Heidkamper to remove the retaining wall for no more than a two inch encroachment onto the Odom property.

ISSUES AND ANALYSIS

I.

The Chancellor erred in his issuance of injunctive relief.

¶ 8. "When reviewing decisions rendered by our chancery courts we must remember *365 that our "[c]hancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard." Lupo v. State Dept. of Transp., 771 So.2d 358, 360-61(¶ 8) (Miss.2000) (citations omitted).

¶ 9. Heidkamper contends that the chancellor erred in granting injunctive relief due to conflicting testimony, the absence of imminent, irreparable harm, and the lack of necessary proof to meet the burden required to issue a mandatory injunction. Heidkamper also argues that the issuance of an injunction resulted in unfounded depravation of the use and enjoyment of his pond, and that the chancellor failed to counterbalance his broad discretion with his duty to apply great care, caution, and deliberation.

¶ 10. The testimony of Deanna Odom, and LeBlanc sharply conflicted with the testimony of Heidkamper's expert witness, Ross Ulmer of the USDA Soil and Conservation Service. Ulmer testified that all three tracts of land had a long history of wetland saturation, that Heidkamper's pond actually benefitted the adjacent tracts because it served as a depository for the upstream flow of water, and the existing moisture in the land was the result of the natural slope combined with a soil type that allows for little moisture absorption. LeBlanc and Deanna testified that the land was not saturated with moisture until Heidkamper built his pond, and damages from the overflow were not the result of natural conditions of the land and soil. The Odoms and LeBlanc presented no expert testimony. Although this testimony is sharply contradictory, the chancellor is afforded broad discretion when deciding which testimony to believe. In Carter v. Carter, this Court held:

The resolution of disputed questions of fact is a matter entrusted to the sound discretion of the chancellor. On appeal, we are limited to searching for an abuse of that discretion; otherwise, our duty is to affirm the chancellor. Our job is not to reweigh the evidence to see if, confronted with the same conflicting evidence, we might decide the case differently. Rather, if we determine that there is substantial evidence in the record to support the findings of the chancellor, we ought properly to affirm. The chancellor, by his presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses.

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Cite This Page — Counsel Stack

Bluebook (online)
880 So. 2d 362, 2004 WL 1832856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heidkamper-v-odom-missctapp-2004.