E-Filed Document
Dec 22 2015 11:49:57
2014-CA-00962-COA
Pages: 7
IN THE
THE SUPREME
SUPREME COURT
COURT OF
OF MISSISSIPPI
MISSISSIPPI
IN
IN THE
THE COURT
COURT OF
OF APPEALS
APPEALS OF
OF THE
THE STATE
STATE OF
OF MISSISSIPPI
MISSISSIPPI
IN
JOSEPH E.
E. DAVIDSON
DAVIDSON AND
AND
JOSEPH
C. DAVIDSON
DAVIDSON
TINA C.
TINA
VERSUS
APPELLANTS
APPELLANTS
CAUSE NO. 2014-CA-00962
WILLIAM DWIGHT COLLINS AND
NANCY L. COLLINS
APPELLEES
APPEL LEES
APPELLANTS' MOTION FOR REHEARING
COME NOW the Appellants. JOSEPH E. DAVIDSON and TINA C. DAVIDSON,
by their counsel of record and in support of their motion would show the following:
It seems to Appellants that the Comi's
COUli's decision relies heavily on authority from
jurisdictions far removed from the State of Mississippi.
ofMCA
65-7-20 I, they were
MCA Section 65-7-201.
Appellants believe that based upon the language of
required to show that they would be entitled to a right of way over the land of another, when
necessary for ingress and egress.
The Trial Court and this Court agree that Appellants proved that their property is
indeed
indeed landlocked.
landlocked.
Mississippi's
ofway
way should
should be
be reasonably
reasonably
Mississippi's case
case law
law provides
provides that
that the
the need
need for
for aa right
right of
necessary
necessary and
and not
not absolutely
absolutely necessary.
necessary.
May v. Adirondach Timber LLC, 129 So.3d 219 (Miss. Ct. App. 2013) held that
where the landowner's property was surrounded on three sides by water and a railroad
company that refused to provide a permanent crossing, he met the statutory requirements.
Alpaugh v. Moore, 568 So.2d 291 (Miss. 1990) reached the same conclusion where
the landowner seeking the right of way was surrounded by water on three sides and by the
opposing party on the fourth side.
Appellants would submit that they met the requirements set forth in legal precedent
in Mississippi.
The decision discusses the notion that a navigable waterway can be considered
reasonable access. The case law cited in the decision and in a footnote arc from Maine, New
York and North Carolina.
Appellants are not aware of any Mississippi case that addresses whether access to land
by water would defeat a landowner's seeking a right of way. In fact, May and Alpaugh
clearly state the being surrounded by water on three sides meets the burden of showing that
a right of way is ''reasonably necessary."
The Court's decision at Pages 5 and 6 discusses a case from the Superior Court of
Connecticut, Coppola v. Dallas, CV054002679S, 2007 WL 2241776, stating that it is a
factually similar case.
Appellants disagree. The parcel of property in Coppola has river frontage of36 feet
and its easterly and westerly boundaries are approximately 1100 to 1300 feet in length.
2
(Coppola at Page 2 - copy of this case is attached in the Appendix to this Motion) The terrain
and swamp renders the vast majority of the parcel unusable.
Appellants' property is 2.3 acres and has 832 feet of frontage on the Escatawpa River.
While Appellants have used it for recreation, there is no prohibition preventing them from
putting in a well or bringing in utilities
01'
building a camp there.
Prior to this decision, there was no standard or set offactors that must be established
by the landowner seeking a right of way, Recreation is a legitimate and worthy use of one's
property -
promoting the enjoyment of one's property with family and friends in a
wholesome environment.
Obviously this is a different use than cutting and removing timber or having access
to one's residence.
What guidancc will this decision provide to the bench and bar in
determining which uses meet the "reasonably necessary" standard?
Should Appellants havc offered testimony that ti'iends and family who don't have
boats have to get to the subject property by vehicle? Or that the cooking equipment
01'
camping gear can't bc brought in by boat and must be transported by pick-up truck? Or that
they may in the futlll:e want to build a camp on the property')
It is also noteworthy that the Coppola case is a trial court decision. This case was
appealed to the Supreme Court of Connecticut, but the appeal was withdrawn. This decision
was not rendered by an appellate COllrt.
Black's Law Dictionary under the definition of.l'tal'e decisis states:
3
The doctrine is limited to actual determinations in respect to
litigated and necessarily decided questions ...
Appellants would submit that Coppola does not comply with the doctrine of stare
decisis and should not be relied upon as precedent or legal authority in this case.
Appellants have been using their property for recreational purposes for over 30 years.
Then, because of a dispute with their neighbor, they were denied the right of ingress and
egress by land.
Mississippi law provides a remedy to this situation and Appellants brought this action
in reliance upon the provisions of MCA Section 65-7-201. They relied upon Mississippi's
legal precedent believing that because the only access to their property was over the land of
Appellees that they ,vould be able to secure a right of way.
There was no indication in Mississippi's case law that the manner in which they chose
to use their property (recreation) would disqualify them from the benefit of MCA Section 657-20 I.
Appellees argued that ''the right to control and use of one's property is a sacred right
not to be lightly invaded or distmbed." The other side of this coin says the right of way
sought here is wetlands and is under water for a good part of the year. As a practical matter,
the way sought by appellants is of ve1y little use or value to Appellees. This hardly rises to
the invasion of a sacred right.
Yet in applying the reasonableness test, it is acceptable to diminish Appellants' use
4
and enjoyment of their property to protect the sacred rights of Appellees to a strip of property
that is essentially unusable.
CONCLUSION
Appellants would urge the Court to adopt the dissent of Justice James as the decision
of this Court as it succinctly states the facts relied upon by Appellants. Further, the dissent
cites and relies upon Mississippi case law in support of its legal arguments.
Respectfully submitted,
5
CERTIFICATE
L E. FOLEY RANSON, Attorney for Appellants, Joseph E. Davidson and Tina C.
Davidson, do hereby certify that I have this day filed according to M.R.C.P. 5 and UCCR
1.16 through the Mississippi Electronic Courts (MEC) the foregoing Motion for Rehearing
to the Clerk of the Supreme Court of Mississippi at her usual address of Post Office Box 249,
Jackson, Mississippi and by U. S. Mail, postage prepaid to Mark H. Watts, Attorney for
Appellees at Post Office Drawer 1499, Pascagoula, Mississippi 39568, and to Honorable T.
Larry Wilson, at Post Office Box 998, Pascagoula, Mississippi 39568.
DATED this the 21'' clay of December, 2015.
E. FOLEY RANS
MS BARNO. 46
6
APPENDIX
Coppola v. Dallas - Memorandum of Decision
43CLR78 l (Conn. Super. Ct. 2007)
7