Simcox v. Hunt

874 So. 2d 1010, 2004 WL 1192490
CourtCourt of Appeals of Mississippi
DecidedJune 1, 2004
Docket2003-CA-00227-COA
StatusPublished
Cited by3 cases

This text of 874 So. 2d 1010 (Simcox v. Hunt) 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
Simcox v. Hunt, 874 So. 2d 1010, 2004 WL 1192490 (Mich. Ct. App. 2004).

Opinion

874 So.2d 1010 (2004)

Dianna SIMCOX, Appellant,
v.
Robert D. HUNT, Appellee.

No. 2003-CA-00227-COA.

Court of Appeals of Mississippi.

June 1, 2004.

*1012 Becky Mae Allen Farrell, attorney for appellant.

Harry M. Yoste, Gulfport, attorney for appellee.

EN BANC.

GRIFFIS, J., for the Court.

¶ 1. Robert and Diane Hunt commenced this action by filing a complaint against Dianna Simcox. The complaint asserted claims to quiet title, to establish a trespass through the construction of the brick structure, for a permanent injunction against future trespass, to establish an easement to allow Simcox access to her property, and for an unspecified amount of damages and attorney's fees for intentional trespass on their property. Simcox counterclaimed and asserted claims for adverse possession, trespass, slander of title, fraud and monetary damage.

¶ 2. The property in dispute was a fiftyfoot strip of land, which was adjacent to Simcox's western boundary, that was owned by the Hunts. The dispute arose after Simcox built a brick entrance structure that encroached on the disputed property. The Hunts claimed ownership and sought to remove Simcox from possession of the disputed property. Simcox counterclaimed that she was entitled to an easement over the property or, in the alternative, acquired the property through adverse possession. The chancellor granted the Hunt's claim to quiet title of the disputed property, denied Simcox's counterclaim for ownership, and granted Simcox an easement for ingress and egress over the Hunts' property. As to the claim of ownership, we affirm. As to the claim of an easement, we reverse, render and remand for the lower court to enter an order with a metes and bounds description granting Simcox an easement over the disputed property.

FACTS

¶ 3. On September 19, 1986, Simcox purchased a one acre tract of land from Montebella Development Corporation, a corporation solely owned by the Hunts. Simcox's property consisted of one acre out of a ninety-acre tract originally owned by Montebella. The remaining acreage was subsequently conveyed to the Hunts.

*1013 ¶ 4. In 1998, Simcox began construction of a brick structure at the entrance to her property. The structure was located on Simcox's western boundary line. This dispute arose when the Hunts questioned whether the brick structure encroached onto their property, i.e., the disputed strip of land.

¶ 5. The documentary evidence submitted at trial included the various warranty deeds that evidenced the conveyances from Montebella to Simcox and the Hunts, correspondence between Montebella, the Hunts and Simcox, several surveys prepared by Edward Jermyn (a registered land surveyor), photographs of the property, and other related documents.

¶ 6. The warranty deeds clearly indicate common ownership of the property by Montabella. The warranty deed conveying the property from Montabella to Simcox did not contain an easement or other means for access to the property. However, by letter dated July 31, 1986, Robert Hunt, as president of Montabella, provided Simcox with a letter that read:

Please let this letter serve as Montebella Development Corporation's notification of intention to allow Dianna [Simcox] access to her property (description attached) by way of an existing extension road from Gramard Lane (see attached illustration).
This easement and allowance shall be incorporated within her deed upon closing of sale of said property.
She shall have rights to ingress and egress of this easement at all times.

¶ 7. Attached to the letter was a copy of Jermyn's August 23, 1985 survey of the property. This survey platted and described the one acre parcel that was conveyed to Simcox. The survey also platted a fifty-foot "proposed road," the east side of which abutted the western boundary of Simcox's property. The survey included a reference to a twenty-foot wide "existing drive," which intersected Simcox's property at the northern end of her western boundary. The only "description" included in the survey was a metes and bounds description of the one acre parcel conveyed to Simcox.

¶ 8. No instrument granting an easement over the "existing drive" or the "proposed road" was ever recorded. The Hunts admitted that they, through Montabella, had proposed to build a paved road over the fifty-foot "proposed road."

¶ 9. At trial, the Hunts introduced another survey prepared by Jermyn. This second survey indicated that Jermyn surveyed the property on December 4, 1998, re-surveyed it on August 29, 2000, and revised the survey on August 14, 2002. The second survey made no reference to the "proposed road" and "existing drive," which had been included in the 1985 survey. Jermyn's testimony did not explain the reason for this omission. Instead, the second survey platted a "gravel drive," which ran from north to south parallel to the Simcox's western boundary. It also platted a turn from the "gravel drive" that intersected Simcox's property near the southern end of her western boundary. The Hunt's also introduced a document, prepared by Jermyn, that provided a metes and bounds description of the "gravel drive."

¶ 10. The discrepancy between Jermyn's two surveys is the genesis of this dispute. The Hunt's asked the court to disregard the 1985 survey, confirm their ownership by quieting title, and grant Simcox only an access easement based on the second survey. Simcox asked the court to rely on the 1985 survey to declare her the owner of the disputed property or, in the alternative, grant her an easement over the "proposed road."

*1014 ¶ 11. At trial, the Hunts agreed that Simcox was entitled to an easement for ingress and egress over an existing gravel road that was situated on the Hunts' property. However, the Hunts argued that Simcox was entitled only to an easement over the existing gravel road, and Simcox argued that she was entitled to ownership or, in the alternative, an easement over the portion of the fifty-foot "proposed road" from the existing gravel road to the western boundary of her property.

¶ 12. Relevant to this appeal, the chancellor's judgment included the following findings of fact and conclusions of law:

The Court is forced to find that neither of [Simcox's] theories have been sufficiently proven to show Ms. Simcox has an ownership interest in the disputed property. The [Hunts] do admit to her having a perpetual, non-exclusive easement for ingress and egress which will run with the land. The Hunts have also agreed to allow the Simcoxes a permissive use of the property upon which the brick walls encroach. The Hunts should be equitably and judicially estopped from withdrawing permissive use unless or until the encroachment interferes with the actual development and improvement of the proposed road, if ever. However, the use will remain permissive, and shall not ripen into an ownership interest.
It is therefore, ordered and adjudged that Dianna Simcox has failed to prove her Counterclaim of an ownership interest in the disputed property, and her Counterclaim is therefore denied and dismissed. The claim of the Hunts for quieting their title consistent with their survey and the deed recorded in the land records of Harrison County should be and hereby is granted.

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Cite This Page — Counsel Stack

Bluebook (online)
874 So. 2d 1010, 2004 WL 1192490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simcox-v-hunt-missctapp-2004.