IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60394

MARLOW, L.L.C.,

Plaintiff-Appellant

v.

BELLSOUTH TELECOMMUNICATIONS, INCORPORATED, 

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

In this diversity suit, a landowner seeks injunctive and compensatory

relief from a telephone company for a trespass and for slandering its title to

certain property. The district court granted summary judgment to the telephone

company. We disagree with that court’s conclusion that the telephone company

had a constructive license but agree that it is not liable for slander of title. We

AFFIRM in part, REVERSE in part, and REMAND for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND 

In 2002, the defendant BellSouth Telecommunications, Inc., a telephone

company licensed to conduct business in Mississippi, obtained two easements

from Earl Burkett on homestead property in Forrest County, Mississippi. Earl’s

United States Court of Appeals

Fifth Circuit

F I L E D

June 27, 2012

Lyle W. Cayce

Clerk

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wife Helen did not join in the conveyances. One easement was over a 10' by 315'

strip under which underground cable would be buried. The other was an

easement on a 40' by 42' parcel, adjoining the other easement, on which

BellSouth would place cabinets, a power pedestal, a cross-connect box, and other

fixtures above ground. Both easements were properly recorded in the county

land records.1

In December 2006, the Burketts conveyed the land by warranty deed to

the plaintiff Marlow, L.L.C. In March 2010, Marlow sent BellSouth a letter

demanding the removal of its equipment on the basis that the 2002 easements

were void due to the absence of Helen Burkett’s signature. In April 2010,

Marlow filed suit in the Chancery Court of Forrest County seeking confirmation

of title, injunctive relief, and damages for trespass. BellSouth removed the

action to the United States District Court for the Southern District of

Mississippi. 

Once in federal court, Marlow filed an amended complaint, adding claims

for slander of title and punitive damages based on BellSouth’s attempt in 2010

to cure the deficient easements by obtaining Helen Burkett’s signature on

additional easements. After BellSouth’s answer was filed, Marlow moved for

partial summary judgment, requesting the court declare the easements void. In

February 2011, the court granted the motion. The court concluded that the 2002

easement was on homestead property and required the joinder of both spouses. 

See Miss. Code Ann. § 89-1-29. That ruling is not contested.

BellSouth then moved for summary judgment on all of Marlow’s remaining

claims, namely, for trespass, injunctive relief, slander of title, and punitive

damages. Marlow responded and moved for a permanent injunction. In May

2011, the district court granted BellSouth’s motion and denied Marlow’s. The

There was evidence that BellSouth has maintained telecommunication lines across

1

this property since 1996. 

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court interpreted a Mississippi statute as granting BellSouth a “constructive

license” to remain on Marlow’s land, thereby barring injunctive relief. The court

also held that Mississippi’s prior trespass doctrine prevented Marlow from

collecting compensatory damages for a trespass. Finally, the district court

rejected Marlow’s slander of title and punitive damages claims, finding there

was no evidence BellSouth acted with malice in obtaining Helen Burkett’s

signature on the 2010 easements. This timely appeal by Marlow followed,

challenging each of the conclusions we just described.

DISCUSSION 

“We review a grant of summary judgment de novo, applying the same

standard as the district court.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.

2008). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

I. Constructive License

The district court held that BellSouth had a constructive license across

2

the Marlow property based on the court’s interpretation of this statute:

The label of “constructive license” may have been borrowed from the caption of the 2

statute that appears only, as far as we can discover, on the electronic version available from

Westlaw. That phrase has never appeared with the statute in either a bill or a codification

adopted by the legislature. We also do not find that any court had previously used that phrase

in connection with the statute. The official version of the 1972 Mississippi Code is the revised

manuscript approved in 1972, as thereafter revised, and as published by the company with

which the State contracts. Miss. Code Ann. §§ 1-1-8 & 1-1-35 (Rev. 2005). The publishing

company is LexisNexis. 1 Miss. Code Ann. v-vi. The title in the original 1972 printing of the

Mississippi Code, which is the current version of the statute, is “Liability for damages caused

by erection, continuance and use of lines.” 

Captions to bills and titles to individual statutes “may be resorted to in order to

ascertain the intent of the legislature.” Giles v. Friendly Fin. Co. of Biloxi, 185 So. 2d 659, 662

(Miss. 1966). “Constructive license” is not part of the official title. What is now Section 77-9-

715 was originally entitled “Liability for damages” (1857 Code), then had no title at all (1871

and 1880 Codes), then was “The same [referring to “Telegraph companies may erect lines,

etc.]: damages, etc.” (1892 Code), which remained largely unchanged until the 1972 title. We

find these titles consistent with our analysis of the text as we will discuss.

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Telegraph and telephone companies or associations shall be

responsible for any damages which any person shall sustain by the

erection, continuance, and use of telegraph and telephone lines and

the fixtures thereof. In any action for the recovery thereof brought

by any owner or possessor of land over or along which such line may

run, damages shall be assessed for the permanent continuance of

such line and fixtures, and on payment thereof the right to continue

and use such line and fixtures shall exist as if by leave and license

of the owner of the land.

Miss. Code Ann. § 77-9-715.

The district court held that this statute granted BellSouth a “constructive

license to leave its lines and fixtures in place” once compensation was paid. The

court rejected Marlow’s argument that the statute applied only when telephone

lines had been placed on public rights-of-way.

Sitting in diversity, we employ the methods of statutory interpretation

used by the relevant state’s courts. See Keenan v. Donaldson, Lufkin & Jenrette,

Inc., 529 F.3d 569, 572-73 (5th Cir. 2008). In Mississippi, “[t]he primary rule of

construction is to ascertain the intent of the legislature from the statute as a

whole and from the language used therein.” DePriest v. Barber, 798 So. 2d 456,

458 (Miss. 2001) (quotation marks and citation omitted). The Mississippi

Supreme Court has said it “resorts to the canons of statutory interpretation only

where a statute is ambiguous or silent on a specific issue.” Lutz Homes, Inc. v.

Weston, 19 So. 3d 60, 62 (Miss. 2009). When the statute is ambiguous, “the

court, in determining the legislative intent, may look not only to the language

used but also to its historical background, its subject matter, and the purposes

and objects to be accomplished.” DePriest, 798 So. 2d at 458 (quotation marks

and citation omitted). 

Marlow argues that the statutory section on which BellSouth relies cannot

be understood without considering the two immediately preceding sections ofthe

Code that were adopted at the same time. Those sections, Marlow insists,

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provide the necessary context that reveal the limited reach of Section 77-9-715. 

As we will explain, these three sections were adopted together a century and a

half ago and have remained largely unchanged. 

We first quote the prior two sections. The first authorizes telephone

companies to erect their lines along public roads and similar property:

All companies or associations of persons incorporated or organized

for the purpose of constructing telegraph or telephone lines shall be

authorized to construct the same, and to set up and erect their posts

and fixtures along and across any of the public highways, streets, or

waters, and along and across all turnpikes, railroads, and canals,

and also through any of the public lands. Such lines, posts and

fixtures shall be so constructed and placed as not to be dangerous to

persons or property, and as not to interfere with the common use of

such roads, streets, or waters, or with the convenience of any

landowner more than may be unavoidable. In case it shall be

necessary to cross any highway, such lines, posts and fixtures shall

be so constructed as to cross such highway at right angles.

Miss. Code Ann. § 77-9-711. 

The next section allows local officials to regulate the construction:

The board of supervisors of any county, and the governing

authorities of any city, town or village, through which any telegraph

or telephone line may pass, shall have power to regulate, within

their respective limits, the manner in which the same shall be

constructed and maintained, with a view to the safe and convenient

use of the public highways and streets. If the proprietors of any

telegraph or telephone line refuse or omit to comply with such

regulations, the board of supervisors, or the authorities of the city,

town or village, may cause such line to be abated within its

jurisdiction as a nuisance.

Miss. Code Ann. § 77-9-713.

The district court rejected Marlow’s argumentthatthese prior two sections

were relevant. The court’s first step was to determine whether Section 77-9-715

was ambiguous. The section itself contains no words limiting it to lines placed

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on public ways. Viewing the statute in isolation, the district court held it

unambiguously provided that if a telephone line were placed on land without an

easement first being acquired, it could remain upon payment of damages. The

court held that this clear language would be “subverted” if guidance from other

statutory sections were used to alter the meaning.

The district court’s refusal to consider the series of three statutes together

has some plausibility. Meaning should be sought first in the language of the

statute; only when it is unclear will “canons of statutory interpretation” be

brought to bear. Lutz Homes, 19 So. 3d at 62. Where we find error is the

manner in which the district court applied that principle. If each section of a

lengthy enactment must be interpreted solely by determining whether the words

within the watertight compartment of that single section are ambiguous, then

all premises and limitations that are clear from looking at the entire enactment

must be restated in every relevant subpart. That rule would create a

cumbersome drafting requirement not reflective of common practice.

The Lutz Homes court stated the rule that the language of the statute

controls, but it then quoted three different sections of the enactment involving

regulation of residential builders and also referred generally to the entirety of

the act. Id. at 62-63. Though the court never declared whether any section of

the statute was ambiguous, it also never identified a principle of construction it

was using to find meaning. We conclude the court implicitly determined there

was no ambiguity after examining all relevant sections of the enactment.

Consistent with our conclusion that multiple-section statutes are written

to be viewed together is a doctrine called the “whole-act rule.” It provides that

one section of an enactment is analyzed in light of the whole:

All parts of the act should be considered, compared, and construed

together. It is not permissible to rest the construction upon any one

part alone, or upon isolated words, phrases, clauses, or sentences,

or to give undue effect thereto. The legislative intention as collected

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from an examination of the whole as well as the separate parts of a

statute, is not to be defeated by the use of particular terms, but, to

the contrary, will prevail over the literal import thereof.

Kellum v. Johnson, 115 So. 2d 147, 150 (Miss. 1959) (quotation marks and

citation omitted). More recently, the court wrote that a “disputed section should

be interpreted in light of all other provisions of the Act.” State v. Beebe, 687 So.

2d 702, 707 (Miss. 1996) (citing Broadhead v. Monaghan,117 So. 2d 881, 886

(Miss. 1960) (holding that when “construing a statute the court must seek to

ascertain the legislative intent from the statute as a whole, and not from a

segregated portion, considered apart from the rest of the statute”)).

Even if the whole-act rule is one of the canons that cannot be used until

first finding ambiguity, Section 77-9-715 alone does not provide an answer to the

issue before us. That Section says nothing about telephone companies having

a right to construct their lines. The statute is premised on there being a right,

but the breadth of the right is unstated. BellSouth perceives an implication that

it may lawfully construct telephone lines without first getting an easement from

the fact that telephone companies must pay damages caused by “the erection,

continuance, and use” of the lines, and that upon payment “the right to continue

and use such line and fixtures shall exist” as if by a license. We do not see what

BellSouth sees. A statute solely about liability for damages from construction

does not imply that construction can be anywhere. 

A grant of a license across any particular land in the state is not found in

this one section’s words. Thus we follow Mississippi’s direction and look at all

the relevant sections from the same enactment. Sections 77-9-711 through 77-9-

715 have been largely unchanged since they were first adopted in 1857. Miss.

Code Ch. XXXV, arts. 45-47 (1857). The original enactment applied only to the

technological marvel of that age, the telegraph. The legislature added telephone

lines and companies when it adopted a new code in 1906. Miss. Code §§ 925-27

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(1906). As in today’s Section 77-9-711, the 1857 statute allowed companies to 3

string lines on “posts and fixtures, along and across any of the public highways,

streets, or waters of this State, and along and across all turnpikes, railroads, and

canals, and also through any of the public lands.” Miss. Code Ch. XXXV, art. 45

(1857). There was no right granted across private lands. The next section,

continued today as Section 77-9-713, empowered local officials to regulate the

construction within their jurisdictions “with a view to the safe and convenient

use of the public highways.” Miss. Code Ch. XXXV, art. 46 (1857). The second

section is a limitation on the first, namely, that the construction of lines which

the first section authorized could be regulated by local officials.

We consider these two related provisions as we decide what the 1857

version of Section 77-9-715 meant. The original statute began: “Such companies,

or associations, shall be responsible for any damages which any person may

sustain, by the erection, continuance, and use of such line, and the fixtures

thereof. . . .” Miss. Code Ch. XXXV, art. 47 (1857). The damages which require

compensation are those involving “such line.” The only possible antecedent

telegraph line (and later, telephone line) to which “such line” could refer is one

strung across public highways, streets, waters, and the like. Upon “payment [of

damages], the right to continue, and use such line and fixtures shall exist as if

by leave and license of the owner of the land.” Id. This damage section applies

only to “such line,” which means the statute cannot be read as a general

authorization to build on private land and pay damages later. 

We have already noted that the coverage of what is now Section 77-9-715

was extended to telephone companies in 1906. That was done by changing the

The commissioners authorized to draft a new code had authority to “submit for the 3

consideration of the legislature such amendments, alterations and additions as they might

deem pertinent to existing general legislation, and which in their judgment would make it

more effective.” Whitfield, Catchings, and Hardy, Miss. Code of 1906, Preface at iii (Draft

1905). They suggested the insertions. Id., Amendments following p. 1366, at [1], 17.

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first words of the section from “Telegraph companies or associations” to

“Telegraph and telephone companies.” Compare Miss. Code § 856 (1892) with

Miss. Code Ch. 24, § 927 (1906). What is now Section 77-9-715 otherwise

remained unchanged from 1857 through adoption of the 1942 Code; in 1972,

“such line” was replaced with “telegraph and telephone lines,” and the lengthy

first sentence was broken in two. Compare Miss. Code Ch. 7, § 7839 (1942) with

Miss. Code Ann. 77-9-715 (1972). No further changes have been made. 

This extremely modest set of revisions supports a finding that the three

statutes remain true to their original application only to public ways. 

We have not yet considered a fourth statute in the current series involving

telephone companies. Section 77-9-717 grants the right of eminent domain. The

three sections we have been discussing have been kept together since 1857. The

first Code to have eminent domain authority for telegraph companies was in

1892. Miss. Code § 858 (1892). The current statute is brief: 4

Telegraph and telephone companies, for the purpose of constructing

new lines, are empowered to exercise the right of eminent domain,

as provided in Chapter 27 of Title 11, Mississippi Code of 1972.

Miss. Code Ann. § 77-9-717. BellSouth argues that a constructive license

“complements” the power of eminent domain in the following way. If the

telephone company cannot reach an agreement with a landowner, then it may

condemn the property. Alternatively, if a telephone company installs a line

without authority, then the landowner is owed damages. 

We disagree. BellSouth’s interpretationwould make the statutes compete,

not complement. Under its theory, once the company’s negotiations with a

 The 1857 enactment granted no right of eminent domain. Such authority was later 4

given and at least twice repealed. See So. Teleg. Co. v. Ala. Great So. R.R., 1 Miss. Dec. 489,

494 (1885) (1876 condemnation authority for telegraph companies repealed in 1880); Ala. &

V. Ry. Co. v. Cumberland Tel. & Teleg. Co., 41 So. 258, 259 (Miss. 1906) (1886 condemnation

authority for telephone companies repealed in 1892).

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landowner failed, it could either just construct the line and pay later, or instead

file for condemnation, allow the proceedings to be completed, pay compensation,

then build. Whether accidentally or intentionally done, build now without

permission and pay later upon agreement or court order could displace eminent

domain. There is a limited right of immediate possession available to certain

holders of eminent domain authority, not including telephone companies. Miss.

Code Ann. § 11-27-81. Under that scheme, there must be a complaint filed in

court, an appraisal done under court order, and initial compensation filed in

court before construction begins. Id. § 11-27-83, -85. BellSouth erroneously

interprets Section 77-9-715 to give more expansive power on this subject than

does any other statute to any other entity.

Eminent domain authority complements the original grant of rights, but

the original grant was limited to using public ways. Our interpretation is that

the later explicit grant of eminent domain authority regulated the crossing of

private lands as a complement to the original grant of authority that regulated

the crossing of public lands. 

Beyond arguments about the language, BellSouth argues policy. It says

the complement of a constructive license is needed to prevent “forfeiture of lines

already laid. . . .” That appears to be incorrect under Mississippi law. If the

holder of eminent domain rights lays a errant line, there may be a corrective:

In the case before the Court, United has the power of eminent

domain, and although it was a trespasser on Berry’s land when it

constructed its pipeline, Berry is not entitled to have the value of

the pipeline added to the value of the easement in determining his

damages for taking his property by eminent domain. However,

Berry is entitled to maintain a separate suit for trespass against

United which right was reserved to him in the final judgment [in

the condemnation action]. Berry’s damages for taking his property

for public use in the condemnation proceedings, and his damages for

the trespass by United in another action constitute the full measure

of the right of Berry.

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Berry v. United Gas Pipe Line Co., 370 So. 2d 235, 237 (Miss. 1979). We are not

holding this precedent applies but only noting its possible relevance.

BellSouth’s fundamental argument is that Section 77-9-715 evinces a

public policy of allowing telephone lines to remain in place once constructed,

never to be torn down for the mere absence of an easement. Such a right has

never previously been recognized by the state’s courts. It would be even more

difficult to make that argument had the three parts of the act we have discussed

been subsections of the same statute. By that, we are only observing that it

would then be an unavoidable fact that the damage section is ancillary to the

earlier section on construction. Under the whole-act rule, though, the connection

still must be recognized. 

Helping confirm our understanding of Section 77-9-715 is some early

caselaw explaining how the provision for damages might be used. Some public

streets were built only on easements, and the adjacent land owners had title to

the center of the streets. Stowers v. Postal Telegraph-Cable Co., 9 So. 356 (Miss.

1891). In such a situation, the Mississippi Supreme Court held that a city could

not authorize a telegraph company to erect its line without first paying

compensation to the private land-owner who owned the fee. Id. Authority to

build over the objection of the private owner “can only be secured by the exercise

of the right of eminent domain, and upon due compensation being first made.” 

Id. The statutes we are reviewing were not discussed in the court’s brief opinion,

but we conclude the holding is consistent with Section 77-9-715. 

Another possible example of when damages are owed under the statute

was when, during construction, a company cut timber on the adjacent landowner’s property. Clay v. Postal Telegraph-Cable Co., 70 Miss. 406, 11 So. 658

(1892) (facts stated only in 70 Miss.). Nothing in the opinion suggests the line

itself was on private property. The company had first obtained permission from

the county to build “along the public highways,” and also “to cut, trim and

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remove any trees, limbs or other obstructions in the way of same, upon the

margin or within the width of said highways.” Id. at 406-07. The court held that

the land-owner had a right to trespass damages.

In conclusion, the statute is not ambiguous. The whole act pertains to

lines placed on public ways. Section 77-9-711 grants a right to build on certain

public land. Section 77-9-713 involves local government in regulating the

construction. Section 77-9-715 provides a remedy to landowners whose property

is damaged during construction or continuation of the authorized lines. We see

nothing in these provisions that grant to telephone companies any rights to place

their lines on property other than those on which there already were public

rights. 

Accordingly, the district court erred by interpreting these statutes to allow

BellSouth simply to pay compensation for its failure to acquire a valid easement. 

In support of its motion for summary judgment in the district court,

BellSouth raised the alternative argument that it had a prescriptive easement

whose use dates from at least 1996. After resolving the Section 77-9-715 issue

in BellSouth’s favor, the district court did not reach BellSouth’s other argument. 

We do not either because the issue has not been briefed. BellSouth can decide

whether again to present that alternative argument on remand. 

II. Damages 

The district court granted summary judgment denying Marlow’s claim for

compensatory damages. It quite logically held the constructive license concept

we have just discussed also barred the need for additional compensation to

Marlow beyond what was paid the prior owners in 2002. Because we have

rejected the use of Section 77-9-715 to provide a license to BellSouth, that

statute also is not a basis for denying damages. 

The district court also denied damages based on Mississippi’s prior

trespass doctrine. Under that doctrine, a purchaser of land is generally

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precluded from recovering for trespasses or property damage that occurred prior

to the land’s purchase unless such right to recovery has been explicitly assigned

by the seller. Flowers v. McCraw, 792 So. 2d 339, 342 (Miss. Ct. App. 2001). It

is undisputed that Marlow did not receive from the sellers an assignment of a

claim for trespass. The doctrine’s rationale is that “the price paid by the

purchaser should reflect the [trespassed or damaged] condition of the property

at the time of the purchase and [thus] no harm to the purchaser by the prior

trespass would have occurred.” Id. In these cases, the damages caused by the

trespasser diminished the value of the property. Generally, though, the trespass

itself has ended.

The McCraw case was similar to several that use this doctrine in that it

was a suit for damages for the improper cutting of timber. Id. at 341. The

timber was gone and so were the timber cutters. BellSouth presents a precedent

that it argues is more analogous to the facts here. That suit involved a

purchaser’s challenge to the prior construction of a seawall across his

predecessor’s land. Henritzy v. Harrison Cnty., 178 So. 322 (Miss. 1938). The

defendant county’s seawall remained on the plaintiff’s land just as BellSouth’s

fixtures remain here. A statute allowed the county to publish notice describing

land it wished to take along the shoreline for building the seawall; the owners

had 30 days to file a claim with the county. Id. at 323. The landowner at the

time of the condemnation and construction did not file for compensation. Id. at

323-24. Ten years later, the land was sold and the new owner built a structure

that interfered with the rights of the county. Id. at 324. The bulk of the court’s

analysis concerned whether the statute allowing condemnation in this way was

constitutional. It was. Id. at 324-26. The court also held that the prior trespass

doctrine prevented the subsequent owner from bringing the claims the prior

landowner might have had for compensation. Id. at 326. 

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One distinction between those facts and ours is that the court upheld the

propriety of the taking under the unusual state statute. The county had the

right to possess the property and there was no continuing trespass. The right

to compensation was a temporary one that the prior owner allowed to lapse. 

Further, even if the prior owner had a claim, it had not been assigned to the

plaintiff. Conversely, we have held that BellSouth did not gain the right to

maintain its lines and fixtures on this property under Section 77-9-715. 

We start at a different point than did the district court. It rejected

damages after finding BellSouth had the right to maintain its lines and other

fixtures. We conclude that BellSouth’s rights have not yet been shown. If

BellSouth is found to be a trespasser, what damages are owed? According to the

district court, Marlow “has never sought any damages for any trespass prior to

its ownership of the property in 2006.” As to possible damages after 2006,

Marlow is not entitled to damages for a hidden burden on the property at the

time of purchase because we agree with the district court that Marlow was on

notice of the presence of the telephone lines. Those lines could have factored into

Marlow’s decision on what it was willing to pay for the property. If they did not,

that failure is not something about which Marlow can now complain.

We agree, then, that damages are not owed for diminished value of the

property at the time of purchase. We also conclude that the prior trespass

doctrine is not a relevant principle in deciding what damages would be owed if

BellSouth is a continuing trespasser with fixtures on Marlow’s property for

which it has no right of possession. We leave the appropriate elements of

damages for the district court to determine in further proceedings should

BellSouth not succeed on its alternative argument for an easement.

We reverse the dismissal of Marlow’s claim for compensatory damages.

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III. Slander of Title

Finally, the district court granted summary judgment against Marlow’s

claims for slander of title and punitive damages. “One who falsely and

maliciously publishes matter which brings in question or disparages the title to

property, thereby causing special damage to the owner, may be held liable in a

civil action for damages.” Walley v. Hunt, 54 So. 2d 393, 396 (Miss. 1951). The

basis for Marlow’s claims is that in 2010, upon learning of its defective

easements, and after Marlow filed suit in state court, BellSouth obtained Helen

Burkett’s signature on two additional easements in an attempt to memorialize

her intentions regarding the 2002 easements and improve its equitable position. 

The 2010 easements contained a false statement warranting that Helen Burkett

was the true owner of record of the subject property (when, in fact, she had not

owned it since 2006). BellSouth acknowledges the falsity of this statement,

maintaining it was a mistake and resulted from a failure to remove form

language. In granting summary judgment, the district court found there was

“absolutely no evidence from which to infer that BellSouth acted with malice in

obtaining the 2010 [e]asements, rather than in good faith and in reliance on the

advice of counsel.” We agree. 

Although Marlow has shown at least one false statement in the 2010

easements, namely, that Helen Burkett presently owned the subject property,

it has failed to present any evidence supporting an inference that any false

statements resulted from BellSouth’s acting with malice. Rather, the execution

of the 2010 easements is entirely consistent with BellSouth’s strategy, prompted

by advice of counsel, to improve its equitable position in the dispute over the

validity of its easements by showing the omission of Helen Burkett’s signature

on the 2002 easements was inadvertent. Indeed, the 2010 easements state:

“This easement is to correct the inadvertent omission of the Grantor, Helen L.

Burkett, on the original easement recorded . . . in the Forrest County Land

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Records. Grantor certifies that it was her intention to sign the easement her

husband previously signed in February 2002 in favor of BellSouth on this same

property for the same purpose.” The wisdom of BellSouth’s strategy can be

debated, but the strategy cannot be described as malicious. 

Summary judgment against Marlow’s claims for slander of title and

punitive damages was appropriate.

The judgment of the district court is REVERSED in part, AFFIRMED in

part, and REMANDED for further proceedings consistent with this opinion.

16

Case: 11-60394 Document: 00511902147 Page: 16 Date Filed: 06/27/2012