GAW v. Seldon
2012 Miss. App. LEXIS 173
| Miss. Ct. App. | 2012Background
- Gaw owns a forty-foot easement over Davie's property; Davie bought the property in 2006, not living there, but his son John resides there.
- In 2009, John erected brick columns at the property entrance that encroached nine-and-a-half feet on Gaw's easement.
- Gaw reported wastewater on his property; Health Department determined it originated from septic tanks on Davie's and a neighboring property and required repairs.
- Gaw filed a chancery court complaint on December 22, 2009 seeking removal of the columns and alleging nuisance and trespass due to wastewater.
- Davie counterclaimed that Gaw interfered with Davie's repair of the easement; the chancery court denied all claims and allowed the columns to remain pending showing of interference.
- Following surveys, installation of a new septic system by Davie was completed in December 2009; the court later reversed on nuisance and awarded nominal damages; Davie did not cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the brick columns encroaching on the easement justify damages | Gaw contends encroachment by nine-and-a-half feet infringes his easement. | Seldons argue encroachment does not prevent reasonable use of the easement. | Columns may remain; no interference shown. |
| Whether wastewater from Davie's septic tank constitutes a nuisance or trespass | Gaw asserts ongoing nuisance/trespass from leaking sewage. | Seldons claim replacement and weather eliminated nuisance; no trespass proven. | Nuisance proven; nominal damages awarded; trespass not necessary due to lack of damages and double-recovery rule. |
| Admission of evidence not produced in discovery | Davie failed discovery; evidence should be excluded. | Discovery violations should be compelled first; exclusion is discretionary and extreme. | No abuse of discretion; admission not reversible error due to lack of compelled motion. |
Key Cases Cited
- Kennedy v. Anderson, 881 So. 2d 340 (Miss. Ct. App. 2004) (use of private right of way must avoid interfering with the other’s use)
- Feld v. Young Men's Hebrew Ass'n, 208 Miss. 451, 44 So. 2d 538 (Miss. 1950) (ownership retains dominion subject to right of way)
- Biglane v. Under the Hill Corp., 949 So. 2d 9 (Miss. 2007) (definition of private nuisance)
- Leaf River Forest Prod., Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995) (test for private nuisance and use of land)
- Love Petroleum Co. v. Jones, 205 So. 2d 274 (Miss. 1967) (nominal damages available when no actual damages shown)
- Whitten v. Cox, 799 So. 2d 1 (Miss. 2000) (nominal damages may be awarded without remand when only nominal relief remains)
- Daniel v. McNeel, 74 So. 2d 753 (Miss. 1954) (nominal damages authority for nominal relief)
- City of Jackson v. Estate of Stewart ex rel. Womack, 908 So. 2d 703 (Miss. 2005) (no double recovery for same harms)
- Caracci v. Int'l Paper Co., 699 So. 2d 546 (Miss. 1997) (discovery sanctions require motion to compel; discretion in admitting evidence)