163 So. 3d 957
Miss. Ct. App.2014Background
- Swenson owns over 120 acres in Pearl River County; dispute centers on access to a 28-acre parcel via a private road crossing the Brouillettes' property.
- The private road crosses the Brouillettes’ driveway and requires passing through gates, with a lock dispute arising.
- Brouillettes installed a gate and lock; Swenson allegedly cut the lock and later used a combination lock.
- A tree-trimming dispute arose when Brouillettes had trees trimmed to address damage to their roof, leading Swenson to claim trespass.
- Trial court found no prescriptive easement (permissive use), no easement by necessity (alternative access), and no appurtenant easement; no damages proven; Swenson appeals; appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appurtenant easement properly pled and tried? | Swenson claimed an appurtenant easement. | Brouillettes argued no pleading or consent to raise it. | Not properly raised or tried; rejected. |
| Prescriptive easement proven? | Swenson asserts prescriptive rights. | Brouillettes contend Swenson had permissive use. | No prescriptive easement; permission shown. |
| Easement by necessity established? | Swenson seeks a way-of-necessity. | There are alternative access routes. | No necessitiy; other access exists. |
Key Cases Cited
- Pitts v. Foster, 743 So. 2d 1066 (Miss. Ct. App. 1999) (easement runs with the land; implied terrain rights)
- Broadhead v. Terpening, 611 So. 2d 949 (Miss. 1992) (appurtenant easement principle; runs with land)
- Evanna Plantation Inc. v. Thomas, 999 So. 2d 442 (Miss. Ct. App. 2009) (prescriptive easement burden; elements require hostility, open use, etc.)
- Harkness v. Butterworth Hunting Club Inc., 58 So. 3d 703 (Miss. Ct. App. 2011) (easement by necessity standards; strict necessity for way-of-necessity)
- McNabb v. L.T. Land & Gravel LLC, 77 So. 3d 1140 (Miss. Ct. App. 2011) (pleading and evidentiary requirements;/appurtenant discussions)
- Scott v. City of Goodman, 997 So.2d 270 (Miss. Ct. App. 2008) (pleading notice sufficiency; Rule 8 standards)