What Does One Do with the Alligators When One Can’t Drain the Swamp?

May 21, 2014 § 13 Comments

The old saw, “When you are up to your a$$ in alligators, drain the swamp,” has many useful and apt applications.

But what about when that swamp full of alligators is on your neighbor’s property, out of your control?

The latter is the situation that confronted Tom and Consandra Christmas. In 2003, they purchased a 35-acre tract of land adjacent to property owned by Exxon-Mobil (Exxon). According to the Christmases, it took them about four years to discover: (a) that the Exxon property was a waste-disposal site; and (b) that it was infested with alligators. As to (b), the Christmases claimed that their property value was impaired by the teeming gator population, and that they had lost two calves and a dog to the carniverous creatures.

They sued Exxon based on nuisance, seeking damages rather than abatement. Although they initially complained about contamination of their property, they dropped that claim. The sole remaining issue was whether the gators constituted an actionable nuisance. The Circuit Judge granted summary judgment in favor of Exxon, finding that the SOL had run, that there were no recoverable damages, and that Exxon could not legally be held liable for wild creatures on its property.     

The Christmases appealed, and the COA reversed and remanded, concluding that there was a factual dispute. Exxon petitioned for cert, which was granted.

In the case of Christmas v. Exxon-Mobil, handed down May 15, 2014, the MSSC reversed the COA, reinstating and affirming the Circuit Court ruling. In its opinion, penned by Justice Lamar for the majority, the court said this:

¶9. The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi. However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession. See Sickmen v. United States, 184 F. 2d 616, 618 (7th Cir. 1950) (stating “a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature”); Roberts v. Brewer, 276 So. 2d 574, 582 (Ala. 1973). We agree. [Footnotes omitted]

¶10. Alligators are a protected species and are managed exclusively by the Mississippi Department of Wildlife, Fisheries, and Parks. Our Legislature has declared it illegal “for any person to disturb an alligator nest; to buy, sell, take or possess alligator eggs; to buy, sell, hunt, kill, catch, chase, or possess alligators or parts thereof except under permit from the Department.” Additionally, the Department narrowly defines what constitutes a “nuisance alligator” and strictly regulates the capture and removal of the same.Consequently, allowing wild alligators to constitute a private nuisance would subject landowners to liability for something over which they have no control. Exxon responded in the only legally permissible way it could to the Christmases’ alligator complaints: it called the Mississippi Department of Wildlife, Fisheries, and Parks and asked for the alligator population on its property to be reduced. Therefore, we hold that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable. Exxon is entitled to summary judgment. [Footnote omitted]

There must have been enough conclusive information in the affidavits of the parties for the court to find that there was no genuine issue of material fact there, although in the court’s recitation of the facts, it certainly does appear that there was a dispute whether the varmints had been brought in by Exxon’s predecessor in title or were wild. No matter, though, since there was no evidence that they were “reduced to possession” by the oil company.

I hope MDWFP has granted the Christmases a permit to abate with extreme prejudice any poodle-chomping nuisances that might stray onto their property. It’s so unpleasant to have to battle eight-foot-long reptiles while trying to enjoy a cookout in one’s own back yard.     

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§ 13 Responses to What Does One Do with the Alligators When One Can’t Drain the Swamp?

  • David Linder says:

    There are some good recipes out there for gator, and a variety of ways to cook them. When life gives you lemons, make lemonade!

    • yogibeaty says:

      Does that imply that when life gives you gators, you should make Gatorade?

      I’m really sorry, and I promise to never do that again.

  • David Wynne says:

    Judge Primeaux, I thoroughly enjoyed your synopsis and comments on this case. Keep up the good (and humorous) work!
    Thank-you for all you do to educate the members of our Bar.

  • yogibeaty says:

    As I remember it being taught to me some 40+ years ago, the maxim is: “When you are up to your A$$ in alligators, it is difficult to remember that the original objective was to drain the swamp.”

    And if I might be so bold, your Honor, what is your thought about Yarbrough v. State and the minority opinion about walking both sides of the fence?

    Thank you for your work here. Even though I live 2000 miles away and am not and have never been a lawyer, I enjoy reading.

    • Larry says:

      I stand corrected re the maxim. It may still apply, though.

      Yarbrough is one of those “wow” cases. Hard to see how anyone would fail to see the conflict.

      • yogibeaty says:

        I actually like yours as well as mine, sir, and I believe that in this case it may apply better.

  • Reed Martz says:

    If they do receive a permit from MDWFP they can likely sell tickets to the dispatching “with extreme prejudice.” I believe there are presently reality TV series with less interesting themes so perhaps the Christmases are on to something.

  • Larry says:

    @Anderson: I guess the distinguishing factore here was that the guy who “might” have imported the critters had done so years before as a predecessor in title, and it could be determined whether the offending beasts were descendants of imports or native reptiles. I guess.

    BUT … to me the larger question is, if you allow an infestation such as this to occur on your land, not initiating measures to curb it, have you not “reduced them to possession?” They are on your land with your permission, so to speak. I guess the “wild card” here is that these are wild animals, who, by definition, are not susceptible to human control and management until domesticated.

  • Jane Tucker says:

    Since every homeless animal within five miles of me ends up at my house, I totally understand the idea. It’s when they start bankrupting you.

  • thusbloggedanderson says:

    “Reduced to possession” puzzles me. If I capture wild coyotes & drop them off on my land, which they make their home base for terrorizing the region, can I shrug that I’ve not reduced them to possession?

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