IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01668-COA WADE H. HARDY JR. AND NORMA F. HARDY APPELLANTS

v. GENE WILLIAM HARDY, HILDA M. HARDY, FRANK LEE CONWAY JR., KAREN H. CONWAY AND JULIE LIVILLE APPELLEES

DATE OF JUDGMENT: 10/11/2016 TRIAL JUDGE: HON. ROBERT Q. W H ITW ELL COURT FROM W HICH APPEALED: MARSHALL COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: KENT E. SMITH ATTORNEY FOR APPELLEES: JENNIFER LEE SHACKELFORD NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 03/27/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND TINDELL, JJ. LEE, C.J., FOR THE COURT: ¶1. W a de H. Hardy Jr. (Ham p) and his wif

e Norm a appeal the Marshall C o unty Chancery
Court’s decisi o n t o deny an easem ent by necessity to use Gene Hardy ’s p ortion of Hardy Lane. Finding no error, we af f i rm . FACTS AND PROCEDURAL HISTORY ¶2. I n 1 9 5 8 , W. H

. H a r d y acquired title to an eighty

- acre parcel of land i n Marshall County , Mississippi. In 1 977, h is sons Ham p and Gene, along with their wives, purchased the eighty -acre p a r c e l

. In February 1992, Ham p a nd G ene divided the eighty -acre parcel equally between t hem selv e s i nto two f orty -acre p arcels. They used a road d esignated as“Hardy Lane” as the access point to the pro p e r t i e s. Although t he r oad is ref lected on the Marshall County tax m ap, the county never adopted Hardy Lane as a county road or

m aintained or im

p roved it. T he parties and their f am il i e s l i v e d on t hese two f orty -acre parcels and all m

u tually used Hardy

Lane as the ingress and egress to their hom es. ¶3. In 2006, H am

p and Norm a m o ved to Aberdeen. U ntil that tim e, they had u sed Hardy
Lane d a i l y w i t h o ut incident f o r access to t heir “hom e p lace,” which ref ers t o t heir hom e, shop, barn, silo, and RV cover positioned on their parcel. For several y ears af ter they m oved,
Ham p would return twice m o nthly to m ow and otherwise m aintain t he property

. However, due to expense and travel, Ham p discontinued visits to or m aintenance of his p arcel, and the land becam e overgrown. Eventually , Ham p expressed his desire to sell his land. To obstruct the road f r om use b y any potential buy ers, Gene parked his tractor a t t he end o f his driveway , in the m iddle of Hardy L ane. Gene never denied H am p or Norm a access down Hardy Lane, but Gene expressly stated he w ould not grant an e a sem ent to any potential buy ers. Ham p

m aintained that he n eeded the easem e nt providing access to the hom e place in order to sell the land. ¶4. Ham

p and Nor m a f

i l e d s u i t in chancery court seeking an order declaring them the

owners o f an im

plied easem ent or easem ent by n ecessity

. 1 Af ter a bench t rial, the chancellor held, “in this case . . . t here is an alternative route that [ Ham p] can use and get to h is property and, theref

ore, this is not an easem ent by necessity .” Ham

p and Norm a now appeal.

1 H am p a n d N o rm a also so u g h t to estab lish a p rescrip tiv e easem e n t, w h ich th e ch an cello r d en ied

. H o w ev e r, H am p an d N o rm a d o n o t a p p eal t h e ch an cello r’s d ecisio n d en y in g th e p rescrip tiv e easem en t. 2STANDARD OF REVIEW

¶5. This Court “will not disturb the f indings of a chancellor when supported by su b s tantial evidence unless t he chancell or a bused his discretion, was m anif estly wrong or clearly
erroneous, or applied an e rroneous legal standard.” Smith v. Pettigrew , 223 So. 3d 173, 176 (¶13) (Miss. Ct. App. 2017) (quoting W ilburn v. W

ilburn , 991 So. 2d 1185, 1190 ( ¶10) (Miss. 2008)). W e review questions of law de novo. Id

. DISCUSSION ¶6. Ham

p argues t he chancellor e rred by f ailing to f ind an e a s e me n t by necessity or an im p lied easem ent over Hardy Lane. Ham p argues that (1) the chancellor applied the wrong legal standard and (2) that Ham p proved all the elem ents of an easem e nt by

necessity

. ¶7. “An ‘ easem e nt by necessity ’ and an ‘im plied e asem ent’ are the sam e.” King v. Gale , 1 6 6 So. 3d 589, 594 (¶25) (Miss. Ct. App. 2015). “A claim ant seeking an easem ent b y necessity has the burden o f proof and m ust establis h that he is entitled t o a right of way

across another’s land.” Davidson v. Collins , 195 So. 3d 825, 8 27 (¶11) (Miss. Ct. App. 2015) (quoting King , 166 So. 3d at 597 (¶38)). “An easem ent by necessity requires proof that (1) the easem ent is n e cessary ; (2) the dom i nant and servient estates were once part of a

com m only owned parcel; (3) t h e im plicit right-of

-way arose at the tim e of severance f rom the c om m on owner.” Borne v. Estate of Carraway , 118 So. 3d 571, 584 (¶34) (Miss. 2013).
“To satisf y this burden, [ t he claim ants] m ust show strict necessity ; that t hey possess no other

m eans of access to their property .” Haik v. Gammill , 122 So. 3d 771, 778 (¶26) (Miss. Ct. App. 2013).

3¶8. It is undisputed that the parties to this appeal hold land derived f rom a once c om m only owned eighty -acre p arcel. The parties also agree that Hardy Lane was used as the access point f or ingre s s and egress to Ham p’s hom e place af

ter the eighty -acre tract was severed. The parties disagree, however, regarding whether the e asem ent i s necessary . H am p argues that the chan c e r y c o urt erred by holding him to a standard of s trict necessity instead of reasonable necessity

. ¶9. For support, Ham

p cites Fourth D a v i s I

s l a nd Land C

o. v. Parker , 469 So. 2d 516 (Miss. 1 985), a rguing t hat “an easem ent would be granted if it were highly c o nvenient or essenti a l t o t h e f

u ll enjoy m ent of the land.” H am p contends that t he easem e nt is highly convenient and essential to the f ull e n j o y m ent of the hom e place—not just the land. However, the suprem e court in F ourth Davis Island acknowledged the distinction “between
way s of necessity , which require strict necessity f or their creation and im

p lied e a sem ents of things not strictly necessary , but highly convenient o r e s sential to t he f ull enjoy m e nt of the land”—such as u tility easem ents. I d

. at 520 (citing Bonelli B ros. v. Blakemore , 66 Miss. 136, 5 So. 228 (1888)). ¶10. I n Harkness v. Butterworth Hunting Club Inc ., 58 So. 3 d 703, 707 (¶12) (Miss. C t

. App. 2011), this Court recognized that the suprem e court in Fourth Davis Island “ held that there i s one s t a n d a r d of proof that applies to an attem pt to o btain an im

plied e a sem ent f

or

u t i l i t y services, and a d i f f erent standard of proof t hat applies to an a ttem pt to obtai n a n im p lied easem ent f

o r the purpose of ingress and egress over another landowner’s property .”
T h i s C o u r t f

urther recognized that “one m u st prove strict necessity t o obtain an im plie d

4e a s e ment involving a ‘way of necessity .’” Id

. In doing so, this C ourt acknowledged i t s

previous “m isapplica t i o n s o f the suprem e court’s decisions,” where we a pplied the reasonable-necessity standard to way s-of

- necessity easem e n ts. Id

. Harkness thereby abrogated Daley v. Hughes , 4 So. 3d 364 (Miss. Ct. App. 2008); Sturdivant v. Todd , 956 So. 2d 977 (Miss. Ct. App. 2007); Swan v. Hill , 855 So. 2d 459 (Miss. C t. A pp. 2 003); and Miss. Power Co. v. Fairchild , 791 So. 2d 262 (Miss. Ct. App. 2001). ¶11. Ham

p claim s that he has a necessary r ight of w a y over Hardy Lane f or access to his hom e place; thus the instant case involves a claim f or a way of necessity

—not an easem ent f or utilities. The strict-necessity standard applies. ¶12. At trial, Ham

p testif ied there was, in f

act , a n o t h e r a c c e s s t o h i s f orty acres—an

unnam ed d

riveway f rom Highway 309 put in by his son. Ham p com plained, however, that this access point was one-half m i le f arther n orth and o nly provided access to his p roperty and
not to his home p l a c e . Ham p’s wif e Norm a testif

ied that the route f

rom the north was not passable because there w ere trees, ditches, a nd it was overgrown. The chancellor personally visited the land a nd opined t hat the unnam e d access road went across a l m ost sixty p ercent of the property and that it would be f easible to m a ke a r oad to t he hom e place. The chancellor f

ound that the easem ent over Hardy Lane was not necessary because Ham p had an alternative m eans of

access to his land. ¶13. Nevertheless, Ham p argues that the easem ent is n ecessary be c a u s e i mp r o v i n g o r extending the unnam ed access road would involve disproportion a t e expense and that such

a p roject would exceed the value of the land. Ham p testif ied that extending or im

proving the

5unnam ed access road to the hom e place would be cost prohibitive. Yet, Ham p did not present any e v i d ence regarding the value of t he land or costs o f establishing a road on the alternative r oute. “W here one seeks to obtain a ‘way of access’ easem ent by

necessity but subm its no evidence as to t he allegedly higher costs of an alternative route, a trial court will
not e rr in declining to award an easem e n t

. ” S w e n s o n v. Brouillette , 163 So. 3 d 957, 965 (¶29) (Miss. Ct. App. 2014) ( quoting H arkness , 58 So. 3d at 708 (¶14)). “Sim ply stating that it would a

ppear t o be ‘very expensive’ to access property by som e o t h e r me a n s is not suf f i cient.” Id

. Ham

p’s claim that the alternative route would be cost prohibitive was not supported and thus not suf f icient. ¶14. The chancellor’s f inding that the easem ent was not necessary because Ham p had an

a l t ernative m eans of access to his land is supported by substantial and credible ev i d e n c e . Furtherm o re, Ham

p presented no evidence regarding allegedly higher costs of an alternative
route. T heref

ore, we af

f irm the chancellor’s decision declining H am p an easem ent by necessity over Hardy

Lane. ¶15. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FA I R, WILSON, WESTBROOKS AND T INDELL, JJ., C ONCUR. GREENLEE, J., N OT PARTICIPATING.

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