Thornton v. Purvis

305 So.3d 1173

Steve C. THORNTON Appellant

v.Jimmy D. PURVIS, Janet M. Purvis, Paul Virgil Overby, Teresa K. Overby, Timothy Gordon Patterson and Betsy Patterson Appellees

NO. 2018-CP-00928-COA

Court of Appeals of Mississippi.

April 14, 2020

Rehearing Denied August 4, 2020

ATTORNEY FOR APPELLANT: STEVE C. THORNTON (PRO SE)

ATTORNEY FOR APPELLEES: JOHN RAYMOND TULLOS, Raleigh

BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Steve Thornton, as trustee of the J.P. Thornton Family Trust, filed suit to establish a prescriptive easement to property that the Trust owns in Simpson County. After a bench trial, the original judge resigned, and the case was reassigned to a successor judge. The parties agreed that the successor judge could make findings and enter a final judgment based on the testimony and record from the original trial. The successor judge found that Thornton failed to meet his burden of proof and denied Thornton's claim for a prescriptive easement.

¶2. On appeal, Thornton argues that we should review the successor judge's decision de novo because the successor judge did not personally observe the witnesses at trial. Thornton also argues that the successor judge erred by denying his claim for a prescriptive easement. However, we hold that our ordinary "substantial evidence/manifest error test" applies. In addition, we hold that the successor judge did not manifestly err by finding that Thornton failed to prove his claim by clear and convincing evidence. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

Procedural History

¶3. In 2011, Steve Thornton, as trustee of the J.P. Thornton Family Trust, filed suit in the Simpson County Chancery Court seeking a declaration of a prescriptive easement over properties owned by the defendants—Jimmy and Janet Purvis, Paul and Teresa Overby, Timothy and Betsy Patterson, and Sue Turner. Thornton alleged that the Trust—which owns land previously owned by Thornton's parents—was entitled to a prescriptive easement over a private gravel road that crosses the defendants’ properties. Thornton alleged that the Trust and its predecessors in title established a prescriptive easement by using the road to access the Trust property since the 1950s. The Purvises, the Overbys, and the Pattersons answered the complaint,¹ denied that the Trust was entitled to an easement, and asserted counterclaims against Thornton for trespass.

¶4. The case proceeded to a bench trial in 2013 before Judge Joe Dale Walker. However, Judge Walker resigned before rendering a decision. The case was then assigned to Judge Gerald Martin. In 2015, the parties agreed that Judge Martin should render a decision based on the record and transcript of the 2013 trial without any further testimony. Judge Martin did view the property prior to rendering a decision.

Alvie Rankin Road and the Subject Properties

¶5. The private gravel road at issue in this case runs west to east beginning at R.T. Womack Road, a public road, and ending near the edge of the Trust's property in rural Simpson County. The road is known as "Alvie Rankin Road," but it has no official name and is not marked by any signs. The road gets its informal name from Alvie Rankin, who lived near the road's present path as early as the 1930s and passed away no later than the 1960s. Rankin was a blacksmith. He did not drive a car. He rode his horse to his home along or near part of the road's present-day path.

¶6. Today, the Purvises reside on approximately twenty-two acres on the north side of Alvie Rankin Road. Their property borders R.T. Womack Road on the west. The Pattersons own approximately thirty-nine acres on the south side of Alvie Rankin Road across from the Purvises. The Pattersons’ property also borders R.T. Womack Road on the west. The Overbys own the property to the east of the Purvises on the north side of Alvie Rankin Road. And Sue Turner owns the property to the east of the Pattersons on the south side of Alvie Rankin Road. The boundary between the northern properties (Purvis and Overby) and the southern properties (Patterson and Turner) runs within the roadbed of Alvie Rankin Road. Thus, the defendants all own different pieces of Alvie Rankin Road. Old fence and tree lines run the length of Alvie Rankin Road on both sides of the road. Alvie Rankin Road ends on the Overby property near the boundary line of the Trust property, which lies beyond the east end of the road.

¶7. The Trust's property also can be accessed from Cooper Road, a public road, to the east. However, the Okatoma Creek bisects the Trust's property. Witnesses testified that despite the creek, the western part of the Trust's property could be accessed by tractor or truck. However, because of the creek, that route is more difficult and less convenient than access via Alvie Rankin Road.

Thornton's Case-In-Chief

¶8. Steve Thornton hired Charles Torrey, a professional land surveyor, to survey Alvie Rankin Road in 2011. Torrey's survey was admitted into evidence at trial. Torrey testified that he drove his Chevrolet Suburban on the road to the boundary between the Purvises’ property and the Overbys’ property. At that point, however, he stopped because the road was wet and he was concerned that his Suburban would get stuck in the mud. He proceeded across the Overbys’ property on a four-wheeler.

¶9. Sue Turner's son, Mark Turner, testified that he could recall his family using the road to access their property since he was a young child in the late 1950s or early 1960s. His father had a dairy farm on the property at that time. Mark Turner also testified that he could recall the Thornton family using the road in the 1980s to bring out hay from their land. He testified that the Thornton family planted pine trees on their property around that time. Mark Turner stated that in earlier years county employees did work to maintain the road.² He testified that in the 1980s he did some bush-hogging to maintain the road.

¶10. Steve Thornton's cousin David Hopkins testified that he helped the Thornton family harvest hay and corn on the Thornton property in the early 1960s. He testified that they used Alvie Rankin Road to access the property. Steve Thornton's aunt Joanna Barnes and his uncles Thomas and Travis Canoy gave similar testimony regarding the Thornton family's farming activities and use of the road in the late 1950s. In addition, David Hopkins testified that he used Alvie Rankin Road to access the property to hunt during two or three years in the 1990s, and Travis Canoy testified that he used the road to access the property to plant pine trees in 1988 or 1989.

¶11. Steve Thornton's cousin Glenn Hopkins testified that he also helped the Thornton family haul hay from their land as a child. He testified that he could recall the Thorntons using the land for that purpose from approximately 1963 to 1975. Steve Thornton's brother Joe Thornton gave similar testimony regarding his family's use of the road in the 1970s.

¶12. Steve Thornton, who was born in 1958, testified that his father purchased the family's land from Alvie Rankin in 1956. Thornton testified that during his childhood his family grew corn, hay, and timber and raised cattle on the property and used Alvie Rankin Road to access the property, to haul out hay and corn, and to bring cows in and out.

¶13. Around 2006, Steve Thornton informed Timothy Patterson that he intended to use Alvie Rankin Road for logging, but Patterson denied Thornton permission to use the road. In 2010, Thornton hired loggers to cut timber on his family's property. However, by the time they were ready to start work, a gate had been installed at the entrance to Alvie Rankin Road. Joe Thornton took down the gate himself so that log trucks could enter the road. The Pattersons and the Purvises objected and called the sheriff's department. As a result of the dispute, Steve Thornton filed the present action in chancery court.

The Defendants’ Case-In-Chief

¶14. Timothy Patterson testified that his family moved to the property that he now owns on Alvie Rankin Road in 1963, when he was eight years old. Their house was about 500 to 600 yards south of Alvie Rankin Road. His family did not use Alvie Rankin Road to access their house, and the road was not visible from the house. Patterson testified that Alvie Rankin Road "wasn't much of a road [when he lived there between 1963 and 1975]. It was more like a little pig trail." According to Patterson, there was little gravel on the road, and a person usually needed a tractor to get down the road. Patterson lived on his family's property along Alvie Rankin Road until 1975. During that time, the Thorntons’ property at the end of Alvie Rankin Road was all timber and was not used for pastures or row crops. Patterson testified that an oil company widened the road and added gravel and culverts in 1976 to accommodate drilling activity in the area.

¶15. Patterson testified that the Purvises used Alvie Rankin Road but that the Thorntons, the Overbys, and the Turners did not use the road to access their properties. When the Purvises bought their property in 2001, they asked Patterson for permission to use Alvie Rankin Road, and Patterson agreed. The Overbys have a separate right-of-way to their property that crosses the Purvises’ property,³ and the Turners can access their property by a dirt road.

¶16. Patterson testified that Steve Thornton first contacted him around 2008. Thornton asked Patterson to sign an easement agreement, but Patterson refused. In 2010, the Purvises informed Patterson that Steve Thornton had been making preparations to use Alvie Rankin Road for logging. Patterson told Thornton that he would call the sheriff's department if Thornton continued to use the road. However, Thornton and the logging company used the road to harvest timber anyway. Patterson claimed that the loggers knocked down numerous trees on his property.

¶17. Janet Purvis testified that she and her husband bought their property in...