IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-00271-COA ERVIN KING APPELLANT

v. SAM GALE AND JERUSALEM BAPTIST CHURCH APPELLEES

DATE OF JUDGMENT: 11/20/2012 TRIAL JUDGE: HON. EDW ARD C. FENW ICK COURT FROM W HICH APPEALED: KEMPER COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT M. LOGAN JR. ATTORNEY FOR APPELLEE: GEORGE HOW ARD SPINKS NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S CLAIMS TO CONFIRM AND QUIET TITLE AND FOR AN EASEMENT BY IMPLICATION OR NECESSITY; DENIED APPELLANT’S CLAIM FOR A PRESCRIPTIVE EASEMENT DISPOSITION: AFFIRMED - 06/16/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
MAX WELL, J., FOR THE COURT: ¶1. Ervin K ing appeals t he denial of his claim s f o r e i t h e r a prescriptive easem ent or

easem ent by necessity a cross Sam Gale’s and Jerusalem B aptist Church’s properti e s . The evidentiary burden r equired to establish a prescriptive easem ent i s h i g h

— clear and

co n vincing evidence. And the chancellor f ound King f

ailed to c learly establish the m ost basic principle f

o r a prescriptive easem ent—use t hat is non-perm issive. The chancellor also f ound King did not prove that an easem ent by n ecessity across Gale’s property was, in f act,necessary . A nd as to the church property , King could not m eet the p relim inary requirem ent

f or an easem ent-by -necessity claim —that his and the c h urch’s land w a s once com m only owned. ¶2. Af ter review, w e f

ind the chancellor applied the law correctly and based h is decision on substantial record evidence. So we af f irm

. Facts and Procedural History
I. King’s Property ¶3. King has owned a l a n d l o cked piece of p roperty in K em per County s ince 1974. Though King l ives out of state, he visits the Mississippi property three to f our tim es a y ear. ¶4. According to King, to get to his p roperty , m ost of ten h e would turn o f

f Highway 39
onto Jerusalem Church Road and head south. Jerusalem Church Road runs past Jerusalem Baptist Church, which has a private drive and p arking lot. Just south o f the church parking lot is Sam Gale’s property

. And south of G ale’s pr o p e r t y l i e s King’s. Gale’s property is f enced. But s o m etim es, with Gale’s perm ission, King would open Gale’ s g a t e s a n d drive

a c r oss Gale’s property to g et to his. Most tim es, however, King w ould park i n t h e c h u r c h parking lot, hop the f

ence, and then walk across Gale’s property

. ¶5. At other tim es, King would not go through Gale’s property a t a l l. Instead, he would
enter his property through land belonging to another neighbor, George Follet. For exam ple, when King harvested tim ber in 1985, he used Follett’s property to rem o ve the tim

ber. ¶6. I n 2 004, King and Gale had a f alling out. So King stopped going across Gale’s

2property

and ever since has crossed Follett’s.
II. King’s Law suit ¶7. In 2006, K ing s ued G ale. King asked the K em per County Chancery C ourt to establish

a boundary line between his and Gale’s properties. H e a l s o asked f or an e asem ent by necessity or prescriptive easem ent across Gale’s land. Later, King am ended his c om plaint, adding J e r u s a l e m B a

ptist Church as a def

endant. King’s a m ended c o m plaint sought an

easem ent across the church’s property too. ¶8. Trial began i n January 2012. At the close of King’s evide n c e, Gale and Jerusalem Baptist Church f

iled a m otion to dism iss. See M.R.C.P. 41(b) (perm i tting t he def endant, in

a case tried without a jury , to f i le a m otion to dism iss “on t he ground that upon the f acts and the law the plaintif

f has shown no righ t t o r e l i e f ”). The chancellor partially granted the

m otion. ¶9. The c h a n c e l l o r d i s mi s s e d King’s claim to establish a boundary line, because he “didn’t think t he e v i d e n c e w as com pelling enough.” See Buelow v
. Glidewell , 757 So. 2d
2 16, 220 (¶12) ( Miss. 2012) (directing that a Rule 41(b) m otion “should be gran t e d i f t h e plaintif f has f ailed to prove one or m ore essential elem ents of his claim or if the quality of the proof of

f ered is insuf

f icient to sustain t he plaintif f ' s burden of proof

”). W h ile K i n g
p r esented an e xpert survey or, the chancellor ref used to a dm it som e of the docum ents t h e expert relied on—nam ely , a twenty -y ear-old prelim inary sketch prepared by the survey or’s predecessor and a plat the survey o r created f rom his predecessor’s sketch.

3¶10. The c hancellor also dism issed King’s claim f or a n e asem ent by necessity across both Gale’s and Jerusalem Baptist Church’s properties. The c hancellor f ound K ing had presented

no proof o f necessity against Gale. King also of f e red n o proof his land used t o b e part of a

com m on tract with the church property —an essential f

i rst step to establishing an easem ent by necessity

. ¶11. Still, the chancellor overruled the m otion t o dism i ss the prescriptive-easem ent claim

. Because he could not say K ing f ailed to establish this claim , the chancellor ordered trial to continue on this rem a ining issue. ¶12. In his o rder partially granting dism issal under Rule 41(b), t he chancellor u s e d the phrase “without prejudice.” B ut because of the c onf usion that phrase c reated, the chancellor later entered an order clarif y ing that, since his dism issal was based on an evaluation of the

m erits o f King’s evidence, the b o u n d ary - line claim and easem ent-by -necessity claim s had been actually d i s mi s s e d with prejudice

. According to the chancellor, the phrase “without prejudice” m erely h ad been used “to c onvey to the parties that the r uling did not prejudice the rights of each def

endant to proceed with the presentation of their respective case on the only rem aining issue b ef ore the court.” S

e e M

. R

. C

. P

. 41(b) (expressly stating that a def endant does not “waiv[ e] his right t o of f er evidence in the even t t h e m otion is not granted”). ¶13. Trial continued in Novem ber 2012. At the close, the chancellor denied King’s claim f or a prescriptive easem ent across Gale’s and the church’s property , f inding King f

ailed to

4prove by clear and convincing evidence all six required elem e nts of a p rescriptive easem ent.

In particula r , King had f

ailed to show his use of G ale’s p roperty had been hostile, as King him self testif ied he had asked f

or Gale’s perm ission. ¶14. W i th the Novem

ber 2012 o rder dism issing the rem aining claim s , both this order and the earlier Rule 41(b) order becam e f inal and appealable. And f ollowing the d e n i a l o f h i s

m otion f or a new trial or alteration of the judgm ent, King tim ely appealed. ¶15. On appeal, we em ploy a limi t e d s t a ndard of review. W e will not disturb the chancellor’s f

indings unless the c hancellor was m a nif estly wrong or clearly e rroneous or the chancellor applied the wrong legal standard. McNeil v. Hester , 753 S o. 2d 1057, 1063 (¶21) (Miss. 2000).
Discussion
I. Survey or’s Sketch and Plat ¶16. King’s f

irst argues the chancellor erred by excluding the prelim inary sketch and plat

o f f e r e d b y his expert witness, licensed survey or Henry D. Purvis III. Gale and Jerusale m Baptist Church objected to the sketch because it had been drawn twenty y ears ago b y another
survey or, a m an Purvis had apprenticed under. And they objected to Purvis’s plat because Purvis had based the plat on the sketch, not his own survey

. ¶17. King claim s these objections had m ore to d o with the weight of this evidence, not its

a d missibility

. H e asserts the sketch and plat were business r ecords and, thus, sho u l d h a v e been adm itted under the b usiness-records exception t o the hearsay rule. See M.R.E. 803(6).

5W e agree with King that there was no hearsay i ssue with the sketch and plat. See Dillon v.

Greenbrier Digging Serv., L td

. , 9 1 9 So. 2d 172, 175-76 (¶¶8-10) (Miss. Ct. App. 2005) (af f irm ing the adm i ssion of an inspection report, w hich h a d been prepared by a dif f erent inspector than the one of f ering it into evidence, because it m et the requirem ents of the business-record exception). And any evidentiary problem s had m ore to do with t he weight and credibility , not the adm i ssibility , of this evidence. ¶18. Tha t s a i d , the c hancellor clearly f ound the sketch and plat were insuf f icient to establish a boundary l ine between the two properties. Both the adm issibility and—in a bench trial like this one—evidentiary weight of the s k etch and plat f ell within t he s ound discretion

o f the chancellor. Terrain Enters., Inc. v
. M ockbee , 654 So. 2d 1122, 1131 (Miss. 1995 ) (broad discretion vested to trial judge regarding evidentiary questions); Murphy v. Murphy , 631 So. 2d 812, 815 ( Miss. 1994) (def erential standard of review f or chancellor, who sits as the f inder of f act). On appeal, our role is not to substitute our judgm ent f o r t he chancellor’s but instead t o ask whether h e a bused his discretion. See M urphy , 631 So. 2d at 815. Further, “f or a case to b e r e v ersed on the adm ission or exclusion of evidence, it m ust result in prejudice and harm or adversely af f ect a substantial right of

a party .” Terrain Enters. , 654 So. 2d at 1131. ¶19. Had a tria l j u d g e excluded this evidence, p reventing a jury f rom weighing it, such exclusion m ight be reversible. But here the c h ancellor was t h e f act-f inder. And even had he adm itted the sketch and plat, it is clear he f ound t his e vidence lacked suf f icient weight to

6m eet King’s burden to establish the boundary line. So we cannot say that his ref usal to adm it this evidence was reversible error.
II. Prescriptive-Easem ent Claim ¶20. King next argues he was entitled to a p rescriptive e asem ent across both Gale ’ s and
Jer u s a l e m B a p tist C hurch’s p roperties. 1 W e are m i ndf ul t hat t he evidentiary burden to establish a prescriptive easem ent is high. King had to s how by clear and convincing evidence he u s ed the church’s p r i vate drive and a path across Gale’s property to get to his. See Thornhill v. Caroline Hunt Trust E state , 594 So. 2d 1150, 1152 (Miss. 1992). He also had
to p rove his use was ( 1) under claim of ownership, (2) actual or hostile, (3) open, notorious, and visible, (4) continuous and uninterrupted f or a period o f ten y ears, (5) exclusive, and (6) peacef ul. Id. at 1152-53 (citations om itted). ¶21. As to Gale, t he chancellor f ound n o clear and convincing evidence o f e v e n a road

across G ale’s p roperty

— l e t alone clear a nd convincing evidence King had been using this road openly , notoriously , visibly , adversely , under a claim of o wnershi p, exclusively , peacef ully , and u ninterruptedly f or at least ten y e ars. I n Rawls v. B lakeney , 831 So. 2d 1205,

1 Wh ile G ale f

iled a b rief in resp o n s e to K i n g ’ s, Jeru s a l e m B a p tist C h u rch d id n o t. T r ad itio n ally , t h e “f

ailu re t o f i le a b rief [ w as] tan t am o u n t to a co n f essio n o f erro r[ .] ” G a ry v. G a ry , 8 4 S o . 3 d 8 3 6 , 8 3 8 -3 9 (¶1 1 ) (M iss. C t. A p p . 2 0 1 2 ). B u t “th ere is an ex cep tio n w h en th is co u r t can ‘state w ith co n v ictio n af ter r ev iew in g th e reco rd a n d b rief o f th e ap p ealin g p arty th a t n o erro r ex isted .’” Id

. (q u o tin g C o n serva to r o f E ld rid g e v
. S p a rkm a n , 8 1 3 S o . 2 d 7 5 3 , 7 5 5 ( ¶7 ) (M iss

. C t

. A p p . 2 0 0 1 )). B ecau s e o u r rev iew o f t h e reco rd an d K in g ’s b rief leav es u s w ith th e co n v ictio n n o erro r o ccu r red , w e d o n o t tak e Jeru salem B ap tist C h u rch ’s f ailu re to f ile a b rief to b e a co n f

essio n o f erro r.

71209-10 (¶15) (Miss. 2002), this court af f irm ed the grant of

prescriptive easem ent, in part, because the plaintif

f had m et the under-a-claim -of -ownership requirem ent by m ain t a i n i n g the road across h e r neighbor’s property and keeping it f

rom getting overgrown. H ere, had there ever been a r oad, it is clear King never did any thing to m aintain it or otherwise claim ownership of an easem ent o ver the road. So we agree King’s c l a i m f or a prescriptive

easem ent to drive across Gale’s property f ails. ¶22. At m ost, t he evidence s howed King had used Gale’s property to walk across by f oot. See Fratesi v. City o

f Indianola , 972 So. 2d 38, 43 (¶14) (Miss. 2008) ( noting that the scope of a prescriptive easem ent is lim ited to the adverse use). But K ing testif ied he had done so with Gale’s perm ission. “[ T]he rule is w ell settled that use by express or i m plied perm ission

or license, no m atter how l ong continued, cannot ripen into an easem ent by prescription[ .]”
Patterson v. Harris , 239 Miss. 774, 785, 125 So. 2 d 545, 550 (1960). Based on King’s own testim o ny , the chancellor f ound King’s use o f G ale’s property w as perm issive a nd thus could
not ripen into a prescriptive easem ent. Because we will n ot disturb a chancellor’s f inding of f act when it is supported by substantial evidence f rom the record, Floyd v. Floyd , 949 So. 2d 26, 28 (¶5) (Miss. 2 007), we f ind King’s claim f

o r a prescriptive ease me n t t o w a lk across Gale’s property

also f ails. ¶23. Against Jerusalem Baptist Church, K i n g l ikewise f ailed to prove b y clear and convincing evidence his u s e of the church’s d riveway and parking lot was under a claim of ownership and non-perm issive (i.e., hostile). At m ost, King drove o r p arked on the driveway

8f

our tim e s a y ear. Given how t he church parking lot was used, this w as certainly not enough
to assert a claim of ownership of an easem ent. As one of the church’s deacons testif ied, King

was welcome to use their driveway and p arking lot “just like any one else.” Because King took advantage of the church’s g enerosity , he c a n n o t claim a prescriptive easem ent. See
Patterson , 239 M i ss. at 7 85-86, 1 25 So. 2d at 550 (“It i s only when the use o f the path or road is clearly adverse to the o w ner of the land, a n d n ot an enjoy m ent of neighborly courtesy , that the landowner is called upon ‘to go to law’ to protect his rights.”).
III. Easem ent-by -Necessity Claim ¶24. Alternatively , King claim s he was entitled to an easem ent by necessity

. ¶25. An “ e a s e m ent by necessity ” and an “im p lied easem ent” are t he sam e. Delancey v. Mallette , 912 So. 2d 4 83, 4 88 (¶13) (Miss. Ct. App. 2 005) (citations om itted). “ An im plied

easem ent m

ust be continuous, a p p a r e nt, p erm anent, and necessary .” Id. at (¶14) (citing Hutcheson v. Sumrall , 220 Miss. 834, 840, 72 S o. 2d 225, 227 (1954)). “Apparent” in this
context “does not necessarily me a n ‘visible,’ but i ncludes perm anent artif icial s tructures.” Hutcheson , 220 M iss. at 840, 72 So. 2d at 227. So “use is apparent when it m ay be discovered upon reasonable inspection.” Id. ¶26. W h ile t h e c h a ncellor provisionally dism issed 2 King’s claim of an easem ent by necessity m o nths bef

o re h e ruled on the prescriptive-easem ent c laim , his f indings f rom the

2 U n d er M ississip p i R u le o f C i v il P ro ced u re 5 4 ( b ), an o rd er th at d isp o ses o f less th an all claim s is n o t f

in al, u n less certif

ied as su c h , an d th u s “is su b j ect to r ev isio n at an y t im e b ef o r e th e en try

o f [ a] j u d g m en t ad

j u d icatin g all claim s[ .] ” 9prescriptive-easem ent hearing reinf orce the e a rlier conclusion that King f ailed to establish

an easem ent by n ecessity across Gale’s p roperty

. Again, the chancellor f ound scant evidence of the alleged dirt road used in th e d e c a d es af ter King’s property was s evered and becam e landlocked. So there was no “apparent” easem ent. And even had there once been a road, it appeared to have been grown over, m eaning there w as also no “continuous” and “perm anent”

easem ent. Finally , based o n the chancellor’s f indings, there was no “necessary ” easem ent.
I n other w ords, it is n ot necessary f or King to cross Gale’s property to enjoy h i s p r o p e r t y . King testif

ied h e quit crossing Gale’s property af ter their dispute in 2 004, opting instead to

cross F ollett’s p rope r t y t o g e t t o his. B ut even bef ore this, K ing som etim es circum vented Gale’s property , choosing to cross Follett’s property instead. Specif ically , K ing went over Follett’s and another neighbor’s land when rem oving tim b er back in 1985. ¶27. King also f

ailed to establish an easeme n t b y n ecessity a cross Jerusalem Baptist Church’s property

. “[ A]s an initial f irst step,” King h a d t o “show that the tract that is blocked i n its access to a public road wa s o n c e j o i n e d with t he t ract over which access is allegedly n ecessary .” Delancey , 9 12 So. 2 d at 488 (¶14) (citing Dieck v. Landry , 796 So. 2d 1004, 1 008 (¶13) (Miss. 2001)). And King d id not prove this f irst step. W hile K ing’s expert testif i ed the two t racts were i n t h e sam e section, he did not testif y t hey were com m only owned. Nor do the title docum ents support King’s claim of c o m m on ownership. Rather, one of the church’s deacons testif ied t he church o btained its tract of l and decades b ef ore King’s parcel becam e severed and landlocked. S ee id.

1 0¶28. For these r easons, we a f f irm the chancellor’s order dism i s s i n g K i n g’s claim f or an

easem ent by

necessity

. ¶29. In light o f Judge Jam e s’s s eparate opinion, we e xplain why our decision to af f irm is necessarily with prejudice

. As t h e c hancellor acknowledged in his am ended Rule 41(b) order, his use of the phrase “without prejudice” was a m istake. It was not m eant to convey that he was dism issing K ing’s easem e n t

- b y - necessity claim on the pleadings, w ithout delving into the evidence. See M.R.C.P. 12(b)(6). Instead, as t h e c h a n cellor e xpressed in his

am ended o rder, his Rule 41(b) ruling was an adjudication on the m erits, entered af ter King
“com pleted the presentation of his evidence.” See M.R.C.P. 41(b). ¶30. Apparently King was satisf ied by this e xplanation. Nowhere in his brief does he ask that if we af

f irm his already -denie d e a s e me nt-by -necessity claim that we do s o “without prejudice.” A nd King is not seeking an opportunity to r ef ile his easem ent-by

- n e c e ssity claim

. Nor c ould he be af

f orded a do o ver. Because the c hancellor’s o rder was a f inal ruling on the

m er i ts, the doctrine o f res j udicata bars him f rom relitigating his easem ent-by -necessity claim

. S ee Harrison v. Chandler-Sampson Ins. , 891 So. 2d 224, 232 (¶23) (Miss. 2005). ¶31. THE JUDGMENT O F T HE CHANCERY COURT OF KEMPER COUNTY IS AFFIRMED. ALL COSTS OF T HIS A PPEAL A R E ASSESSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, C ARLTON AND FAIR, JJ., CONCUR. B ARNES, J . , C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CO N C U R S IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.

1 1JAMES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶32. I agree with t he m ajority opinion t hat the c ircuit did not err in deny i ng K ing’s claim
to a prescriptive easem e nt. However, excluding the survey plat f rom evidence and changing the dism issal of the easem ent by necessity f r om a dism issal without prejudice to a dism issal with prejudice resulted in an abuse of discretion. Theref

ore, I respectf

ully dissent. Denial of Survey Plat into Evidence ¶33. King argues that the sketch of the survey plat should have b een adm itted into evidence b e c a u s e i t was a p a rt o f regularly kept business r ecords, an exception to the hearsay ru l e . King contends that because Henry D. Purvis I II was qualif ied as an expert witness by the trial court and the successor to the survey ing business, the plat should h ave been i ntroduced by his testim o ny . According to King, Purvis’s testim ony about the sketch concerned a regularly kept business record, conf irm i ng its accuracy

. ¶34. An appellate court r eviews “a trial c ourt’s exclusion o f evidence u nder a n abuse-of

discretion standard, and where [ it] f ind[ s] a trial court has e rred, [ it] will not reverse unless the error adversely af

f ects a party ’s substantial right.” Heflin v. Merrill, 154 So. 3d 857, 860 (¶9) (Miss. 2014) . “ Relevancy and adm issibility of evidence are largely within the discretion of the t rial court, and the trial court’s decision will only be reversed where that discretion has been abused.” In re Dissolution of Marriage of Spriggs, 149 So. 3d 517, 526 (¶39) (Miss.
Ct. App. 2014) ( citing Terrain Enters. Inc. v. Mockbee, 6 54 So. 2d 112, 1128 (Miss. 1995)). ¶35. Also, we have previously stated:

1 2Mississippi Rule of Evidence 801(c) def ines hearsay

as[ ] “a statem ent, other than one m ade by the declarant while testif y ing a t t he trial or hearing, of f e red in e vidence t o prove the truth of the m atter asserted.” T he threshold question when addressing a hearsay issue is whether the statem ent is actually hearsay

. Blakeney v. State, 39 So. 3d 1001, 1010 (¶26) ( Miss. Ct. A pp. 2010). Purvis ref e rred to the
survey plat sketch that was prepared by Purvis’s predecessor be f o r e his death, m aking the plat hearsay

. King attemp t e d t o u s e t he plat as evidence of the e x istence of the boundary lines between his and Gale’s p r operties. “Hearsay evidence is inadm issi b l e u n less it f alls within one of the known exceptions.” Miss. Gaming Comm’n v. Freeman, 747 S o. 2d 231, 242 (¶42) (Miss. 1999). ¶36. Kin g c l a i ms t h e s k e t c h f a l l s u n d e r t h e b u s i n e s s - r ecords exception. In order to establish the f

oundational requirem ents f or adm itting evidence under the business-record exception, the f

ollowing elem e nts are required: 1) t h e statem ent is in written or recorded f orm ; 2) the record concerns a cts, events, conditions, opinions or diagnos es; 3) the record w as m ade at or n ear the tim e o f the m atter recorded; 4) the source of t he inf o rm a tion had personal knowledge of the m atter; 5) the rec o r d was kept in the course of regular business activity ; and 6) it was the r egular practice of the b usiness activity to m ake the record. Dillon v. G reenbriar Digging S erv. Ltd., 919 So. 2d 172, 175 ( ¶8) (Miss. Ct. App. 2005) (citing Flowers v
. State, 7 73 So. 2d 309, 322 (¶72) (Miss. 2000)). Although t he plat satisf ies several requirem ents, it does not f ulf ill all of them

. W hen testif y ing, Pu r v i s a d m itted that althoug h h e was working with the survey or who was the author of the sketch, he was “working on the rod” and was an apprentice at the tim e the sketch w as m ade. It is unclear

1 3whether o r not Purvis had personal knowledge o f what was c ontained in the sketch. The trial

court did n o t a b use its discretion when it disallowed the adm ission of t he survey into evidence a nd dism issed the easem ent by necessity w ithout prejudice. However, to disallow the survey and dism iss the easem ent with prejud ice results in an abuse of discretion. It is clear that it was within th e c h ancellor’s discretion to allow the adm i ssion of the e vidence. The d ism issal with prejudice resulted in harm or p rejudice t o King, and it a d versely af f ected his substantial rights. This constitutes reversible error. See Terrain Enters., 654 So. 2 d at 1131.
Easem ent by Necessity ¶37. K i n g a r g u e s t hat, other than Gale’s property , there were no practical way s to ga i n

access to t he public r oad. King c ontends that t he other proposed way s to gain access to a public road were im

practical because they

were heavily

wooded and had large ditches. ¶38. “ A c l a i ma n t s e e k i n g a n easem ent by necessity has the burden of p r o o f a n d mu s t establish t hat he is entitled to a r ight of way across another’s land.” Fike v. Shelton, 860 So. 2d 1227, 1 230 (¶11) ( Miss. Ct. App. 2003) ( citing B roadhead v. Terpening, 611 S o. 2d 949,
954 (Miss. 1992)). King “m ust dem onstrate s trict necessity and i s required to prove there is

no o t h e r m eans of access.” Id. An easem ent by necessity m a y be e stablished b y proving reasonable necessity instead of absolute necessity

. Evanna Plantation Inc. v. T homas, 999
So. 2d 442, 446 (¶12) (Miss. Ct. App. 2009). In order to dete r mi n e what is reasonably
necessary , “the operative consideration is ‘whether an alternative w ould involve

1 4disproportionate expense and inconvenience.’” I d. ¶39. Since 2003, King had not u sed the easem ent, y et King continued to visit the property by crossing another neighbor’s property

. W e h ave previ o u s l y stated that “an easem ent by necessity will not be a warded when the only evidence presented was that an a lternative route would b e l onger and less convenient. W here one seeks t o obtain a ‘way of a ccess’ easem ent by necessity [ ,] but subm its no evidence as to t he allegedly hig h e r c o sts of an alternative route, a trial court will n ot err in declining to award an e asem ent.” Harkness v. Butterworth Hunting Club Inc., 58 So. 3 d 703, 708 (¶14) (Miss. C t

. App. 2011). King d oes not of f er suf f i cient evidence o f any a dditional costs or im practical a lternative routes. Theref ore, I f ind that the trial court did not err in ref using to establish an easem ent by necessity

. ¶40. However, t he e asem ent by necessity also f a iled because t he survey was not adm itted into evidence a nd no alte r n a tive route was shown along w ith the expenses f or creating the
route. T he chancellor abused his discre t i o n in attem pting to d ism iss the easem ent by necessity with preju d i c e a f t er he initially dism issed the easem ent by necessity without prejudice. As p e rsuasive authority , in the case of Hutchinson v. City o f Madison, 9 87 N.E.2d
539 ( Ind. Ct. App. 2013), the c ourt allowed a dism issal without prejudice to allow the City
to i nclude an appraisal of the real property in order to ref ile i t s c ondem nation proceeding. Hutchinson argued that t he counterclaim should be dism issed with p r e j udice because the hearing was an adjudication on t he m erits. The j udge stated, “W e are not c o nvinced that the f ailure to com

ply with Indiana C ode S e c t i o n 32-24-1-3(c) f orever bars t he state f

rom

1 5acquiring property .” Id. at 5 4 2

. C h a ncellors h ave broad discretion to f ashion rem edies to avoid an inequitable dilem m a. Borne v. Estate of Carraway, 118 S o. 3d 571, 592 (¶65) (Miss. 2 013). In Mississippi State Highway v. Morgan, 2 48 Miss. 631, 638, 160 S o. 2d 77,
80 (1964), the Court hel d t h a t t h e highway com m ission abused its discretion in seeking to condem n an easem ent, and the judgm ent of the circuit c ourt was af f irm ed without prejudice
to any other rights o r rem edies, if any , which m ight be asserted by the parties. It should be noted, however, that the s ubject of this case is a condem nation proceeding by the State. I do
not see why the s a m e l o g ic should not be applied to individuals i n cases where injustice would result. If King is not allowed to ref ile h is com

plaint t o pursue his petition f or an

easem ent by

necessity , his property

will rem ain landlocked. ¶41. I n t h e c o u r t ’ s o r d e r d a ted June 29, 2012, the court entered its Order on Plaintif f ’ s Motion to Dism iss a n d f o r Wi t h drawal of Motion f or New Trial as to the easem ent by necessity

. In this order, the court also set the heari n g o n t h e p r escriptive easem ent f or Novem ber 5, 2012. In the court’s order, t he court changed its order f r om a dism issal of the

easem ent by necessity without prejudice to a d i s mi s s al with prejudice, w hich would leave King without a r em edy

. Also, I note t hat under Mississippi Rule of Ci v i l Procedure 52(b)

a judgm ent m

ust be am ended within ten day s o f the Mississippi Rule of Civil Procedure 41(b) dism issal. The order of dism issal without prejudice was signed on January 30, 2012, and f i led on February 1, 2 012. The judge labeled the change as a c l arif ication, but it was in

1 6the nature of an am endm ent. 3 T h e a m e ndm ent was done outside o f t he ten-day period as

required by

the rule. ¶42. The m ajority opinion states that the petition should be dism issed without prejudice. However, as previously

stated, the judgm ent m

ust be am ended within ten day s pursuant to Rule 52(b). Also, our courts h a ve esta b l i s h ed precedence in a f f irm ing judgm e nts without prejudice. See Pierce v. State, 811 So. 2d 395, 397 (¶7) (Miss. 2001). ¶43. Also, it is noted t hat i n King’s m o tion to d ism iss and f or withdrawal of the m otion f or a new trial, King stated: Plaintif f would s how that it is h is d esire to withdraw his m otion f o r new trial and allow the Court’s ruling of January 30, 2012[ ,] t o stand, provided all other issues in the Plain t i f

f ’ s com plaint and a m ended com plaints are dism issed without prejudice. King relied on the j udge’s order that h e was dism issing the easem ent by nec e s s i t y without prejudice. The m ajority

opinion states that Rule 54(b) allows an order to be revised at any tim e bef ore the judgm ent adjudicating all of the claim s. This is true f or a revision. However, the tri a l court dism issal with prejudice was a substantial am e n dm ent that prejudiced the Appellant. 4

3 “A n am en d ed j u d g m en t ref ers to a trial co u rt co rrectin g a su b stan tiv e erro r in an o r i g i n a l j u d g m en t.

. . . [ A ] n am en d ed j u d g m en t sh o u ld b e issu e d w ith in 1 0 d ay s o f t h e o rig i n al j u d g m en t.” h ttp : //d e fi ni t i ons . u s l e ga l

. c om / a / a m e nde d-

judgm e nt / ( c i t i ng Fe d. R

. C iv

. P . 5 9 (e)).

4 “ R ev is e - a r e e x am in atio n o r caref u l rev i ew f

o r co n clu sio n o r im

p r o v em en t. A rev isio n can o ccu r o n l y i f i t w i l l n o t m aterially p r ej u d i ce th e accu sed .” B l ack ’s L aw D i ctio n ary

1 4 3 4 (9 th ed . 2 0 0 9 ). 1 7¶44. As a result, I would reverse the d ism issal of the easem ent by necessity with prejudice,

and af f irm the dism issal o f the easem ent by necessity without prejudice to K ing’s right to f ile a petition f

or an easem ent by

necessity

.

1 8