Swan v. Hill

855 So. 2d 459, 2003 WL 21650143
CourtCourt of Appeals of Mississippi
DecidedJuly 15, 2003
Docket2002-CA-00621-COA
StatusPublished
Cited by7 cases

This text of 855 So. 2d 459 (Swan v. Hill) 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
Swan v. Hill, 855 So. 2d 459, 2003 WL 21650143 (Mich. Ct. App. 2003).

Opinion

855 So.2d 459 (2003)

Earl Harvel SWAN, Jr. d/b/a Big Buck's B-B-Q Smokehouse, Inc., Appellant,
v.
Jack HILL d/b/a Kar Kleen, Appellee.

No. 2002-CA-00621-COA.

Court of Appeals of Mississippi.

July 15, 2003.

*461 Everette Verhine, Vicksburg, for appellant.

Kenneth M. Harper, Vicksburg, Wes W. Peters, Jackson, for appellee.

EN BANC.

CHANDLER, J., for the court.

¶ 1. The County Court of Warren County granted an easement to Jack Hill over land owned by Earl Harvel Swan, Jr. Swan appealed to the Chancery Court which affirmed the granting of an easement by the County Court. Aggrieved by the judgment, Swan appeals asserting the following issues:

I. WHETHER THE TRIAL COURT LACKED JURISDICTION IN AWARDING HILL AN INJUNCTION.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING HILL AN EASEMENT BY NECESSITY.

II. WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.

IV. WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE AND UNDULY BURDENSOME EASEMENT.

¶ 2. Finding that the trial court erred, we reverse and render.

PROCEDURAL HISTORY

¶ 3. On March 29, 2000, Hill filed a complaint with the County Court of Warren County requesting an easement across Swan's property. He also asked the court to grant him a temporary restraining order or preliminary injunction against Swan. On April 10, 2000, the county court ordered Swan to refrain from altering the use of Hill's land that impeded or conflicted with the prior historical use of the land.

¶ 4. At trial, on March 28 and 29, 2001, the court granted Hill an easement by necessity and the jury awarded $6,000 in compensatory damages and $4,000 in punitive damages. The chancery court affirmed the lower court's decision on appeal, and now Swan appeals to this Court.

FACTS

¶ 5. Swan, owner of "Big Buck's BBQ Smokehouse," and Hill, owner of "Kar Kleen" carwash, are neighboring landowners in Warren County. Swan's restaurant is located on the corner of Clay and Hope Street, facing Clay Street. Clay Street is a major thoroughfare off Interstate 20 entering downtown Vicksburg. Hope Street is a side street which accesses Hill's carwash, an apartment complex, and a few private homes.

¶ 6. Swan's property is located between Clay Street and Hill's carwash. Hill's property does not border Clay Street at any point but does border Hope Street. A bowling alley, Red Carpet Lanes, is located to the side of the carwash and the restaurant. The area in dispute consists of approximately 25 by 62 feet behind the restaurant.

¶ 7. All three businesses were developed and owned by Dr. and Mrs. M.E. Hinman over thirty years ago. The Hinmans later sold the three properties separately. Prior to buying the carwash in 1985, Hill managed the property for approximately *462 ten years. The Hinmans sold the bowling alley to John Magruder in 1993 and the restaurant to Lawrence Nosser in 1994. In December of 1999, Nosser sold his interest in the restaurant to Swan.

¶ 8. Hill, Magruder and Nosser testified that the parking lot which connects the restaurant, carwash, and bowling alley has been open and free of any obstruction for the past thirty years. They stated that Hill's customers access the carwash by either driving through the parking lot of the restaurant and the bowling alley or through the Hope Street entrance. A sign located on Clay Street for over ten years directs the public to the carwash behind the restaurant. Swan acknowledged that he was aware Hill's customers were accessing the carwash through the restaurant's parking lot.

¶ 9. After Swan bought the restaurant, he began to refurbish and remodel the premises. The renovations included moving a dumpster to the corner of the property and building a fence that was approximately eight feet tall and extended to the bowling alley's property line. These new changes instigated disputes over the property between Swan and Hill.

¶ 10. Swan stated that he moved the dumpster to keep it away from his newly built smoker because he saw it as a possible health hazard. He also said he built the fence in order to protect the restaurant from potential liability due to all the cars traveling across his property.

¶ 11. In 1988, Hill built an automatic carwash ten to twelve feet from Swan's property line. A customer must enter the automatic carwash on the side facing the restaurant. Hill testified that Swan placed the dumpster and the fence in front of the automatic carwash impeding his customers' ability to maneuver into the carwash. He also stated that the fence blocked visibility of the carwash from Clay Street. The fence was constructed approximately five days prior to the court's temporary restraining order.

¶ 12. Swan testified that the fence did not completely block access to the carwash. He stated that Hill's customers could access the carwash through Hope Street and through Clay Street by traveling over the right side of the bowling alley's property. Hill testified that it was virtually impossible to maneuver through the bowling alley's property because it was only twenty feet wide and the bowling alley's employees generally parked along that side.

¶ 13. Magruder and Nosser testified that Hill had over the years helped maintain the parking lot that connected all properties by filling in potholes. In July of 2000 Hill filled in potholes located on his property and Swan's property. He testified that after completion, Swan recreated the potholes by shoveling out the asphalt and placing it on the doorstep of Hill's office. Swan admitted that he did this act and stated that it was out of "pure meanness."

I. DID THE COUNTY COURT LACK JURISDICTION TO ENTER AN INJUNCTION AGAINST SWAN?

¶ 14. The county court "shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed ... the sum of $75,000." Miss.Code Ann. § 9-9-21(1) (Rev.2002). However, Miss.Code Ann. § 9-9-23 (Rev.2002) states:

The county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge. He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, *463 and other remedial writs in all cases pending in, or within the jurisdiction of, his court ... But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except hereinabove specified as being within his jurisdiction unless a judge authorized to do so refers it to the county court.

Therefore, the two statutes seem to contradict one another.

¶ 15. In Welch v. Bryant 157 Miss. 559, 563, 128 So. 734, 736 (1930), the court held that the county court lacked power to issue an injunction to prohibit someone's further employment. The court held that this was an issue of civil rights and not appropriate for the county court. Id. However, a more recent case, citing Miss.Code Ann. § 9-9-21

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Cite This Page — Counsel Stack

Bluebook (online)
855 So. 2d 459, 2003 WL 21650143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swan-v-hill-missctapp-2003.