### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 i t s t i t l e to certain property. The district court grant e d 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 e a s e m ents from Earl Burkett on homestead property in Forrest County, Mississippi. Earl’s U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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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 buri e d

. T h e other was an easement o n 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 t he land by warranty deed to the plaintiff Marlow, L.L.C. In March 2010, Marlow sen t BellSouth a letter demanding the removal of its equipment on the basis that the 2002 easements

were void due to the absence of H e l e n B u r k e tt’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 r e m oved 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 obtaini n g H e len 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. B ell S o uth then moved for summary judgment on all of Marlow’ s r e m ainin g claims, nam e ly, for trespass, injunctive relief, slander of title, and punitive damages. Marlow responded and moved for a permanent injunction. I n May 2011, t h e di s trict court granted BellSouth’s motion and denied Marlow’s. The

There wa s evide nce th at BellS outh has mai ntain ed tel eco mm unica tio n lines acr os s 1 this p rop ert y s ince199 6. 2 Case: 11-60394 Document: 00511902147 Page: 2 Date Filed: 06/27/2012No. 11-60394

court interpreted a M i ssissippi statute as granting BellSouth a “constructive license” to remain on Marlow’s land, thereby barring injunctive relief. The court also held t h a t M ississippi’s prior trespass doctrine prevented Marlow from collec t i n g compensatory damages for a trespass. Finally, the district court rejected Marlow’s sla n d e r of title and punitive damages claims, finding there

was no evidence BellSouth acted with malice in obtaining Hele n B urkett’s signature on the 2010 easements. This t imely 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 T h e district court held that BellSouth had a constructive license acros s 2 the Marlow property based on the court’s interpretation of this statute:

The label of “co nst ruc tive lice nse” may have be e n b orr ow ed fr om the cap tio n of the 2 st atut e thatappe ars only, as far as we can di sc over, on the elec tro nic vers ion availabl e fro m W e s t l a w . That phr ase has never app eare d wi th the st atut e in eit her a bill or a cod ifi cat io n ado pt ed by the legis latur e. We als o do not find that any cour t had pr evious ly use d that phr ase in conne cti on wi th the st atut e. The off icia l vers ion of the 1972 Mis sis sip pi Code is the revis ed man usc rip t app roved in 1 9 7 2 , as ther eaf ter revis ed, and as publ ish ed by the com pany wi th wh ich the Sta te cont rac ts

. Mis s. Code Ann. §§ 1-1- 8 & 1-1- 35 (Rev. 2005)

. The publ ish ing com pany is LexisN exis

. 1 Mis s. Code Ann. v -vi. The tit le in the or iginal 1972 pr inti ng of the Mis sis sip pi Code , wh ich is the cur rent vers ion of the st atut e, is “Liabi lity for dam ages caus ed by er ect ion, c onti nuanceandus e o f lines .” Capt ions to bills and tit les to individual st atut es “m a y b e r e s o r ted to in ord er to asc ert ain the inte nt of the legis latur e.” Gi le s v. Fri endl y Fin. Co. of Biloxi , 185 So. 2d 659, 662 (M iss

. 1966)

. “Cons tru ctive lice nse” is not par t of the off icia l tit le. What is now Sec tio n 77-9

- 715 wa s origi nally enti tle d “Liabi lity for dam ages ” (185 7 Code), then had no tit le at all (187 1 and 1880 Code s) , then wa s “The sam e [r efe r r i n g t o “T elegr aph com pani es may ere ct lines , etc .] : dam ages , etc .” (189 2 Code), wh ich rem ained largely unchan ged until the 1972 tit le. We findt hes e t itle s cons ist ent wi th our analys is of the textas w e w ill dis cus s. 3 Case: 11-60394 Document: 00511902147 Page: 3 Date Filed: 06/27/2012No. 11-60394

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 , d a mages 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 t h e 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 constru c t i o n i s t o 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 m a r k s a n d 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). Wh e n t h e statute is ambiguous, “the court, in determining the legislative i n t e nt , m a y 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 B ellSouth relies cannot be understood without considering the two immediately precedin g s e ctio n s of th e 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 t h e p ri or 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 , a n d a long and across all turnpikes, railroads, and canals, and also through any of the public land s . S uch 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 regu l a t e , within their respective limits, t he 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 om i t t o comply with such regulations, the board of supervisors, or the authorities of the city, t o w n or village, may cause such line to be abated with i n i t s jurisdiction as a nuisance. Miss. Code Ann. § 77-9-713.
The district court reject e d M arlow’ s ar gu m e nt th at th e s e 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 int e r p retation” be brought to bear. Lutz Homes , 19 So. 3d at 62. Where we find e r r o r i s the

manner in which the district court applied that principle. If each section of a lengthy enactment must be int erp r et e d 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. Tha t rule would create a cumbersome drafting requirement not reflective of common practice. The Lutz Homes court s t a t e d t h e rule that the language of the statute controls, but it then quoted three different sections of the enactment involving

r e gu l ation of residential builders and also referred generally to the entirety of the act. Id. at 62-63. Though the court never declared whether any sect i o n 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 isolat e d w o rds, 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. 1 9 5 9) (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 S o . 2d 881, 886 (Miss. 1960) (holding that when “const ru i n g 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”)). E ven if the whole-act rule is one of the canons that cannot be u s e d u n t i l first finding ambiguity, Section 77-9-715 alone does not provide an answer to the issue before us. T h a t S e c tion 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 t e lephone 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 liabili t y 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 h ave 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 gr a n t e d across private lands. The next section, continued to d a y a s Section 77-9-713, empowered local officials to regulate the construction within t h e ir 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 rela t e d provisions as we decide what the 1857

version of Section 77-9-715 meant. The original statute began: “Such compani e s , or a s s o c i a t i ons, shall be responsible for any damages which any person may sustain, by the erection, continuance, and use of s u c h l ine, and the fixtures thereof.

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

o n l y to “such line,” which means the statute cannot be read as a g e n e r a l 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 com mi ss ioner s autho ri z e d t o dr aft a new cod e had autho rit y to “s ubm it for the 3
cons ide rat ion of the legis latur e suc h ame ndm ents , alte rat ions and add itio ns as they mi ght dee m pertine nt to exis ting genera l legis lati on, and wh ich in thei r judgm e n t w o u l d mak e it mo re eff ect ive. ” Whit fie ld, Catc hings , and Ha rdy, Mis s. Code of 1906, Pref ace at iii (D raf

t 1905)

. They s uggest ed the ins ert ions

. Id. , Ame ndm ents f ollo wi ng p
. 1366, at[ 1], 17. 8 Case: 11-60394 Document: 00511902147 Page: 8 Date Filed: 06/27/2012No. 11-60394

first words of the section from “Telegraph companies or associations” to “Telegraph and teleph o n e c o mpanies.” Compare Miss. Code § 856 ( 1892) with Miss. Code Ch. 24, § 927 (1906). What i s now Section 77-9-715 otherwise remained unchange d 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 C ode 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. Cod e An n . § 77-9-717. BellSouth argues that a constructive license “complements” the power of eminent domain i n t h e 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 int erp r et atio n wo ul d m ak e th e s t atutes compete, not complement. Under its theory, once the company’s negotiations with a

The185 7 e nact me nt grant ed no rightof emi nentdom ain. Suchauthority wa s lat er 4 given and at leas t tw ice re pealed

. See So. Teleg. Co. v. Ala. Grea t So. R.R ., 1 Mis s. De c. 489, 494 (188 5) (187 6 c onde mna tio n au thor ity fort elegr aph com pani es r epe aledin188 0); Ala. & V. Ry. Co. v. Cumbe rland Tel. & Teleg. Co. , 41 So. 258, 259 (M iss

. 1906) (188 6 cond em natio n autho rity f

or tel epho ne com pani es r epe aledin189 2). 9 Case: 11-60394 Document: 00511902147 Page: 9 Date Filed: 06/27/2012No. 11-60394

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, a nd initial compensation filed in court before construction begins. Id

. § 11-27-83 , -85. BellSouth erroneously interprets Section 77-9-715 to give more expans ive 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 th e l ater 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 trespasse r o n B erry’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. Ho w ever, Berry is entitled to maintain a separate suit for t r espass against United which right was reserved to him in th e f i nal 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 a l l o w ing telephone lines to remain in place once constructed,

never to be torn down for the m e r e ab sence 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 tha t , w e are only observing that it would t h en be an unavoidable fact that the damage section is ancillary to the earlier section o n c o n s truction. Under the whole-act rule, though, the connection still must be recognized. Helping confirm our u n d e r standing 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 t e l egraph company to erect its line without first paying compensation to the private land-owner w h o o w n e d 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 p o s s ib le example of when damages are owed under the statute

was when, during construction, a company cut timber on the adjacent l a n d

owner’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 b u i l d “ along the public highways,” and also “to cut, trim and

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remove any trees, limbs or other obstructions in t h e w a y 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 provi s ions 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 interpretin g these statutes to allow BellSouth simply to pay compensation for its failure to acquire a valid easement. In support of it s m o t i on 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 disc u s s e d also barred the need for additional compensation to Marlow beyond what w a s p a i d the prior owners in 2002. Because we have rejected the use of Sectio n 7 7

- 9

- 7 1 5 to provide a license to BellSouth, that statute also is not a basis for denying damages. The district court also denied damages base d on Mississippi’s prior trespass doctrine. Under that doctri n e , 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 p ri c e paid by the purchaser should reflect the [trespassed or damaged] condition of the property at the time of the purchase and [thus ] n o 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 Mc Craw case was similar to several that use this doctrine in that it

was a suit for damage s f o r t he 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 t o t h e f a c ts here. That suit involved a purchaser’s challenge to the prior constructio n o f 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 t he seawall; the owners had 30 days to f

i l e a c l a i m 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 prevent e d t h e 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. T h e county had the right to possess the property and there was no continuin g t r e s pass. The right to compensation was a temporary one th a t t h e prior owner allowed to lapse. Fu rther, even if the prior owner had a claim, it had not been assigned to the plaintiff. Conversely, we have held that B e l l S outh 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 damage s a fter finding BellSouth had the right to maintain its lines and other fixtures. We conclude that BellSouth’s rights h av e n o t y e t 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 i n 2 0 06.” 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 M a rl o w w a s 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 a r e n o t o wed for diminished value of the property at the time of purchase. W e a l s o c onclude that the prior trespass doctrine is not a relevant principle in deciding what damages would be owed if BellSouth is a continuing trespasser with fixt u r es on Marlow’s property for which it has n o ri ght of possession. We leave the appropriate elements of damages for the district court to determine in further proceedi n g s 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 a g a inst 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 it s d e f e c t ive 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 t h i s statement, maintaining it was a mistake and resulted from a failure to remove form language. In granting summary judgment, the di s t rict 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 fa l s e statement in the 2010 easements, namely, that Helen Burket t p r esently owned the subject property, it has faile d t o p r e s ent 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 b y advice of counsel, to improve its equitable position in the dispute o v e r th e validity of its easements by showing the omission of Helen Burkett’s signature

on the 2002 eas e ments was inadvertent. Indeed, the 2010 easements state: “This easement is to correct the inadvertent omission of the Grantor, Helen L. Burkett, o n t h e o riginal easement recorded

. . . in the Forrest County Land

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Records. Grantor certifies that it was her intention to si gn the easement her husband previously signed in February 2002 in favor of BellSouth on this same p r operty for the same purpose.” The wisdom of BellSouth’s strategy c a n b e debated, but the strategy cannot be described as malicious. S u m m ary 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