William Frances Ryan v. David Ray

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00365-COA
WILLIAM FRANCES RYAN AND PAMELA APPELLANTS
REYNOLDS RYAN
v.
DAVID RAY AND NANCY RAY APPELLEES
DATE OF JUDGMENT: 02/09/2017
TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL
COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: PATRICK W. KIRBY
ATTORNEYS FOR APPELLEES: DONALD ALAN WINDHAM
MATTHEW WARD MCDADE
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 08/21/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
LEE, C.J., FOR THE COURT:
¶1. This appeal arises from a dispute between adjoining landowners, William and Pamela
Ryan, and David and Nancy Ray, concerning an easement created in 1995—prior to their
interest or ownership in the properties at issue. We must determine whether the chancellor
erred when she (1) found that the deed granting the easement was ambiguous and (2)
resolved the ambiguity in favor of the Rays, finding a perpetual easement for ingress and
egress over the Ryans’ property. We affirm these findings as set forth below.
FACTS
¶2. In 2011, the Ryans purchased their beachfront property in Bay St. Louis, Mississippi,
via a warranty deed from David and Mary Baria. The warranty deed specified that the
conveyance was made subject to a “reserved easement for Ingress and Egress, on, over and
across the following described property,” referencing a driveway alongside their property
next to an adjacent rear lot owned by the Rays. The Rays had purchased their property in
2003 via a warranty deed which conveyed rights to the easement driveway over the adjacent
front lot now owned by the Ryans. In 2005, Hurricane Katrina destroyed the Rays’ residence
situated on their property. Subsequently, the Rays moved out of Mississippi but retained
ownership of the lot and continued use of the driveway as needed for lawn care and other
routine maintenance on the property.
¶3. Sometime in 2013, the Rays listed their property for sale. The Ryans, having built a
home on their property since purchasing it in 2011, noticed the real estate sign on the
adjacent back lot, purporting to offer for sale a portion of the Ryans’ property. The Ryans
had a title examination performed on their property which revealed an easement reserved in
a 1995 warranty deed through their parcel for access to the adjacent back lot owned by the
Rays. The 1995 warranty deed specifically “retain[ed] an easement for the purposes of
ingress and egress on, over and across the above mentioned property to be used only for
access to the chapel.” The “chapel” was a colloquial term referencing a building that had
been situated on a once larger, common parcel, which encompassed both the Ryan and the
Ray properties and contained numerous structures. At all times since the 1995 warranty
deed, the “chapel” building was used as a residence—not as a chapel used for religious
services of any kind. The “chapel” residence was present when the Rays purchased their
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property in 2003 and was used as the Rays’ home until it was destroyed by Hurricane
Katrina.
¶4. Both the Ray property and the Ryan property originated from a once single parcel
owned by the Kingsley House and New Orleans Day Nursery, a New Orleans charity. In
1993, Edwin and Joy Hyde acquired the property by warranty deed. Accompanying the
warranty deed to the Hydes was a survey that showed a number of structures on the property,
including the “Old House,” “Chapel,” and multiple “Camp” and “Bath” houses. In 1995, the
Hydes separated the property, conveying a beachfront parcel (the Ryan property) to N.B. and
Audrey Tournillon. It was at this time that the Hydes created the 1995 easement “for the
purposes of ingress and egress on, over and across the above-mentioned property to be used
only for access to the chapel . . . .” When the Hydes created this easement, the building
referred to as the “chapel” was actually used as a residence and not as a chapel for religious
services. In fact, at no time since the 1995 warranty deed was the “chapel” ever used for any
religious ceremonies, and at all relevant times it was used as a residence.
¶5. In 1997, the Hydes further subdivided the property and conveyed the property now
owned by the Rays to Curtis Johnson via warranty deed. This deed conveyed to Johnson “an
easement for ingress and egress, over and across the following described land . . . .” The
easement in the 1997 warranty deed described the same property (the Ryan property) as
described in the 1995 warranty deed. In 2003, Johnson conveyed the property to the Rays
via warranty deed. This 2003 warranty deed purported to convey a fee simple interest in the
property previously described as an easement in both the 1995 and 1997 warranty deeds.
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¶6. Following the title examination which revealed the 1995 easement, the Ryans placed
two physical barriers to block the driveway: one at the beginning of the Ryans’ driveway
(which they opened as needed only for their own use) and the other at the back of the
driveway adjacent to the Rays’ lot. The Ryans then filed a complaint to remove any cloud
of title, arguing that the 2003 warranty deed from Johnson to the Rays attempted to convey
a driveway used to access the Rays’ property and that the driveway portion of land was
actually an easement which had previously terminated when the chapel was destroyed.
Additionally, the Ryans sought injunctive relief to prohibit the Rays or their agents from
advertising marketable title to the portion of land in question. The Rays responded asserting
a counterclaim for a declaratory judgment that a perpetual easement for ingress and egress
had been created by one of the deeds, or in the alternative, that they had established an
easement by prescription.
¶7. Following a trial, the chancellor found that the 1995 warranty deed containing the
express easement contained a latent ambiguity because of its use of the term “chapel.” The
chancellor went on to resolve the ambiguity and further found that the easement was created
with the intent to establish a perpetual easement for ingress and egress onto the Ray property.
The chancellor also made an alternative finding that the Rays had established a prescriptive
easement. The Ryans now appeal.
DISCUSSION
¶8. The Ryans first argue the chancellor erred by finding the term “chapel” rendered the
easement ambiguous. The Ryans further argue that even if the easement was ambiguous, the
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court erred by failing to consider parol evidence to resolve the ambiguity and further erred
by altering the nature of the easement from a specific-purpose easement to a perpetual
easement for ingress and egress.
¶9. “Our standard of review of a determination of ambiguity, or the lack thereof, of a
[deed], and its subsequent interpretation is two-tiered.” Crisler v. Crisler, 963 So. 2d 1248,
1251 (¶5) (Miss. Ct. App. 2007) (citing Tupelo Redevelopment Agency v. Abernathy, 913 So.
2d 278, 283 (¶12) (Miss. 2005)). “Whether a [deed] is ambiguous is a question of law which
we review de novo.” Id. “If an ambiguity is found to exist, its interpretation is a matter for
the trier of fact[,] which we review under a substantial evidence/manifest error standard.”
Id.I. Ambiguous Easement
¶10. “[A]n easement may be acquired by express grant, implied grant (implication), or
prescription . . . .” Favre v. Jourdan River Estates, 148 So. 3d 361, 368 (¶20) (Miss. 2014)
(internal quotation mark omitted)). “[I]n the case of an express grant, the fact of the creation
of the easement, as well as its nature and extent, is determined by the language of the deed,
taken in connection with the circumstances existing at the time of making it.” Id. (internal
quotation mark omitted). Id. “Descriptions of easements may be fairly general,” but “any
description . . . needs accuracy and clarity.” Id.
¶11. “A court interpreting a deed follows the same process as it does with contracts.”
Carmody v. McGowan, 222 So. 3d 1064, 1065 (¶2) (Miss. Ct. App. 2017) (citing
Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct.
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App. 2010)). “We begin by looking at the language of the instrument itself as contained
within its ‘four corners.’” Id. (citing Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352
(Miss. 1990)). “If the terms of the [deed] are subject to more than one reasonable
interpretation, the [deed] is considered ambiguous.” Maness v. K & A Enterprises of Miss.
LLC, No. 2017-CA-00173-SCT, 2018 WL 3791250, at *5 (¶22) (Miss. Aug. 9, 2018)
(internal quotation mark omitted).
¶12. In the instant case, the deed at issue contains an easement “for the purposes of ingress
and egress on, over and across the above mentioned property to be used only for access to
the chapel.” It is obvious in this case that the use of the term “chapel” is ambiguous or
unclear. First, the term that the parties are at dispute over refers to a structure that is no
longer in existence. Second, and more importantly, both parties agree that the term “chapel”
does not represent its plain and ordinary meaning—neither now, nor at the time of the
easement’s creation. Before trial in the chancery court, the Ryans and the Rays stipulated to
the fact that at the time of the 1995 warranty deed containing the easement provision, “the
building referred to as the ‘chapel’ was actually used as a residence and not as a chapel that
was conducting any type of religious services (including weddings, funerals, and any other
religious ceremonies).” The parties also stipulated that “at no time since the 1995 warranty
deed has the building referred to as the ‘chapel’ been used for any such religious
ceremonies.” As such, the easement’s use of the term “chapel” is subject to more than one
interpretation—its plain sense and its colloquial meaning understood by the parties and their
predecessors in interest. Thus, it is clear that the language granting the easement presents
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an ambiguity. Applying a de novo review, we affirm the chancellor’s finding that the
easement was ambiguous.
¶13. Next, we review the chancellor’s interpretation of the easement under the substantial
credible evidence standard. Crisler, 963 So. 2d at 1251 (¶5).
II. Express Easement for Perpetual Ingress and Egress
¶14. “In ascertaining the intention of the parties from the language of the instrument, the
grant or reservation should be so construed as to carry out that intention, and, in case of
ambiguity or doubt, a grant or reservation of an easement ordinarily will be construed in
favor of the grantee.” Jackson Motor Speedway Inc. v. Ford, 914 So. 2d 779, 782 (¶9) (Miss.
Ct. App. 2005) (quoting Boggs v. Eaton, 379 So. 2d 520, 522 (Miss. 1980)). “Intent is a
question of fact, and is shown by the circumstances of the case, the nature and situation of
the property subject to the easement, and the manner in which the easement has been used
and occupied.” Calvert v. Griggs, 992 So. 2d 627, 633 (¶15) (Miss. 2008) (internal quotation
mark omitted). The supreme court has stated that “when the grant is ambiguous[,] the
construction given by the parties themselves, as proved by the manner in which they exercise
their rights under the conveyance, is legal evidence.” Warren v. Derivaux, 996 So. 2d 729,
736 (¶16) (Miss. 2008) (quoting Capital Elec. Power Ass’n v. Hinson, 226 Miss. 450, 461,
84 So. 2d 409, 412 (1956)). “[T]he general rule is that where the grant is in general terms,
the exercise of the right, with the acquiescence of both parties, in a particular course or
manner, fixes the right and limits it to the particular course or manner in which it has been
enjoyed.” Id. “This rule applies not [only] to the location of the easement, but also to the
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extent thereof[;] it applies to the course, manner, extent, and length.” Id.
¶15. The chancellor found that the evidence presented showed that “the easement was
created for permanent access to the property now owned by the Rays, especially in the event
the properties were further subdivided, and there was no intent to limit access only to a
specific structure which was non-permanent in nature.” The evidence before the chancellor
included all of the deeds in the chains of title to both the Ryans and the Rays. After the
initial 1995 warranty deed creating the easement, which used the language “for access only
to the chapel,” all the subsequent deeds—in both the Ryans’ and Rays’ chains of
title—referenced an easement for ingress and egress without any reference to the chapel. The
evidence before the chancellor also included deposition testimony from Barbara Staehle, a
neighbor who lived next door to the Ryan and Ray properties for approximately seventeen
years (ending in 2005) and was a real estate agent involved in many of the transactions
concerning the properties. Staehle testified as to the use of the easement and colloquial use
of the term “chapel” in reference to the residential home on the Ray property. Additionally,
David Baria—the Ryans’ immediate predecessor in interest—testified by affidavit that the
Rays used the easement driveway to access their property. The 2011 deed from the Barias
to the Ryans specified the property conveyance was made subject to a reserved easement for
ingress and egress to the Ray property despite the fact the chapel residence was no longer in
existence. All of this evidence considered on the record by the chancellor belies the Ryans’
contention that the chancellor failed to use parol evidence to resolve the deed’s ambiguity.
¶16. We hold that the chancellor’s finding of a perpetual easement for ingress and egress
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onto the Ray property was supported by substantial credible evidence, particularly
considering the deeds in both the Ryans’ and Rays’ chains of title identifying the easement
as one for ingress and egress and the consistent manner the easement was used for ingress
and egress to the property. This issue is without merit.
III. Prescriptive Easement
¶17. Although the chancellor found that there was an express, perpetual easement over the
Ryan property for ingress and egress to the Ray property, the chancellor made an alternative
finding that in the absence of a perpetual easement, there was clear and convincing evidence
to support an easement by prescription using the doctrine of tacking. The Ryans argue on
appeal that the Rays failed to satisfy the elements necessary for a prescriptive easement. We
agree.
¶18. In this case, there was an express easement granted, which the chancellor found was
one for perpetual ingress and egress to the property at issue. We affirm that decision as it
was supported by substantial credible evidence. Therefore, an alternative theory for
establishing an easement is unnecessary. But moreover, the alternative ground is legally
contradictory. An express easement and a prescriptive easement cannot co-exist. “The rule
is well settled that use by express or implied permission or license, no matter how long
continued, cannot ripen into an easement by prescription.” King v. Gale, 166 So. 3d 589, 594
(¶22) (Miss. Ct. App. 2015). Thus, the chancellor’s finding of a prescriptive easement was
legally erroneous, and we do not affirm on these grounds. The error does not require reversal
however, as the chancellor’s disposition is affirmed on other proper grounds as set forth in
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this opinion.
¶19. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
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