Mississippi Power Co. v. Fairchild

791 So. 2d 262, 2001 Miss. App. LEXIS 66, 2001 WL 151862
CourtCourt of Appeals of Mississippi
DecidedFebruary 20, 2001
Docket1998-CC-01759-COA
StatusPublished
Cited by7 cases

This text of 791 So. 2d 262 (Mississippi Power Co. v. Fairchild) 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
Mississippi Power Co. v. Fairchild, 791 So. 2d 262, 2001 Miss. App. LEXIS 66, 2001 WL 151862 (Mich. Ct. App. 2001).

Opinion

791 So.2d 262 (2001)

MISSISSIPPI POWER COMPANY, Appellant
v.
Coy FAIRCHILD, Appellee.

No. 1998-CC-01759-COA.

Court of Appeals of Mississippi.

February 20, 2001.
Rehearing Denied May 15, 2001.
Certiorari Denied July 26, 2001.

*263 Paul Richard Lambert, G. Martin Warren Jr., Gulfport, for Appellant.

David Shoemake, Collins, for Appellee.

Before McMILLIN, C.J., PAYNE and LEE, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. Mississippi Power Company (MPC) filed a petition before the Covington County Board of Supervisors (Board) asking that the Board grant MPC a private way across the property of Coy Fairchild. A hearing was held and the Board denied MPC's request. MPC filed a Bill of Exceptions and supplement thereto in the Circuit Court of Covington County. After a hearing on the matter, the circuit court affirmed the decision of the Board of Supervisors, and MPC perfected this appeal. We find that the lower court erred in its determination, and we reverse and remand for further proceedings.

FACTS

¶ 2. MPC owns certain landlocked real property in Covington County, Mississippi. See appendix A for plat showing division of property and roadways 1, 2 and 3. This property is bordered on the west and south by property belonging to Coy Fairchild. MPC's property is bordered on the north and east by Herbert Pickering's property. MPC's property is divided into three major sections due to the course of the Okatoma Creek which crosses the entire width of the property. The northwest portion contains 5.85 acres, the northeast/southeast portion contains 10.46 acres, and the southwest portion contains 16.68 acres. The southwest portion is the property involved in this lawsuit.

¶ 3. MPC contends that the only reasonable access to the larger portion of its property is through Fairchild's property. If MPC acquires access to the northeast/southeast portion through Pickering's property, MPC would have to build a private bridge across the creek for vehicular access to the larger portion. MPC claims that access across Pickering's property would be 1,361.89 feet through an overgrown trail [1], and that construction of a bridge would create environmental concerns and cost in excess of $250,000. Access through Fairchild's property, which is the method used for over fifty years, is only 879.26 feet along the south portion of an existing old dirt road [2a] and old woods road [3] previously used for logging.

¶ 4. The existing old dirt road [2a] continues northeasterly [2b] to the Okatoma Creek and was a public road when MPC acquired the property in 1930. Mr. Warren, attorney for MPC, stated to the Board that the old dirt road [2] ran to a bridge on MPC property. The bridge crossing the creek washed out sometime after 1930 and was never rebuilt, so the road [2] ceased to be used by the public. When asked by the circuit court judge, Warren stated that they have found no order entered by the Board of Supervisors closing the dirt road to public use.

¶ 5. MPC claims that it continually accessed its property by the dirt road [2a] and the old woods road [3] across Fairchild's *264 property from 1930 until the early 1990's when Fairchild installed a gate where the dirt road intersects a public gravel road. MPC has a key to the gate and still uses the dirt road and woods road to access its property, with Fairchild's permission. MPC stated that it has attempted to purchase the private way from Fairchild on numerous occasions. MPC has had appraisals done and stated it is willing to pay Fairchild the fair market value as required by statute. See Miss.Code Ann. § 65-7-201. Fairchild claims he has offered to buy the property from MPC, but that is immaterial to the issue at hand.

¶ 6. An employee of MPC, Chip Speaker, testified that the dirt road [2b] continues northeasterly to Okatoma Creek where an old bridge used to be until it washed out sometime around 1930, but that MPC wants to own as a private way the route that turns off the old dirt road [2a] onto the woods road [3] across the Fairchild property. Upon questioning by Board members, Speaker said that the route turning onto the woods road [3] is the one MPC has always used to get to the land. A board member queried: "you had a route at one time, and you are trying to reestablish a route?" MPC's attorney indicated that although MPC has continuously used the route [2a and 3] they never had anything in writing from Fairchild allowing them access across his property. Therefore, they requested the Board of Supervisors to designate that route as a private way upon MPC's fulfilling the terms of the statute which gave the Board of Supervisors that authority.

¶ 7. It appears from the record and briefs that the old dirt road [2a and b], which continues northeasterly to Okatoma Creek, is still being used by a canoe rental business to access the Okatoma Creek, but now with Fairchild's permission, as it was being used for such purposes before the gate was installed. The MPC witness, Donald Walker, who prepared the accessibility analysis, stated in his deposition that he recommended MPC access its property from either of the two easements surveyed (both on Fairchild's property), one being from the dirt road [2a and b] that extends to the southeast corner of MPC's property, which would require MPC to traverse Mooney Branch, and the other from currently used route along the old dirt road [2a] and old woods road [3]. Walker also testified that access from the north through Pickering's property would require a bridge to be built across Okatoma Creek. Aside from the expense, Walker stated that there are environmental concerns to be addressed and that the property is in a flood plain area. The Circuit Court of Covington County found that MPC failed to show that the necessity is real and not merely a matter of convenience. The Board did not state which, if any, of the three roads would meet the statutory requirement of necessity, as opposed to convenience, but one is left with the impression that the Board of Supervisors found that neither of the roads across Fairchild's property would satisfy the "necessity" requirement.

STANDARD OF REVIEW

¶ 8. The standard for reviewing decisions of a Board of Supervisors is as follows:

The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies. Barnes v. Board of Sup'rs, DeSoto County, 553 So.2d 508, 511 (Miss.1989). "The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional *265 or statutory rights of the aggrieved party." Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996).

Ganier v. Mansour, 766 So.2d 3 (¶ 12) (Miss.Ct.App.2000).

The Board's task was to review and decide whether the owner of a landlocked tract of land, without a legally established means of ingress and egress, was entitled to an easement over neighboring land. The Board had to accomplish this task while keeping in mind the competing interests of [persons] who own land surrounding the land-locked tract.

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Cite This Page — Counsel Stack

Bluebook (online)
791 So. 2d 262, 2001 Miss. App. LEXIS 66, 2001 WL 151862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-power-co-v-fairchild-missctapp-2001.