The Trap of the Oral “Easement”

November 5, 2018 § Leave a comment

The Stewarts and the Smiths owned adjoining lots on a lake where they and others enjoyed water skiing. They and some other neighbors deepened a drainage ditch for lake access, and built a boat ramp and retaining walls. The retaining walls were on both properties, but the boat ramp was almost entirely on the Smiths’ lot. In exchange for sharing the cost of the project, the Smiths gave permission for all participants to use the ramp freely, which they did. The offer and agreement were oral and never reduced to writing or recorded.

In 1995, Girani acquired the Stewarts’ lots, and he made further improvements and repairs to the boat ramp. He continued to use the ramp at will, and did not make any effort to acquire a written, recorded easement.

In 2006, Lovorn acquired the Smiths’ lots and blocked the boat ramp, insisting that the others get permission before using it.

At that point, Girani filed suit in chancery court. In the absence of a written, recorded easement, he urged the chancellor to find that the parties’ actions had created an “easement by estoppel.” Or, he suggested, the chancellor could find that he has an “irrevocable license” to use the ramp, based on the consideration of his contribution to the boat ramp and channel. The chancellor denied any relief, and Girani appealed.

In Girani v. Lovorn, decided October 9, 2018, the COA affirmed, with Judge Tindell writing the unanimous opinion:

¶9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn’s boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶10. “[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed.” 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So. 2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson, 272 F. Supp. 774, 784 (E.D. Ark. 1967)). In contrast to an easement, a license “confers no interest in the land but merely gives one the authority to do a particular act on another’s land . . . and . . . may be created orally.” 37 C.J.S. Statute of Frauds § 66. “However, it . . . has been said that an irrevocable license is . . . an easement rather than a license.” 53 C.J.S. Licenses § 147 (2017).

¶11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn’s land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co., 530 So. 2d at 1335 (providing that Mississippi “does not recognize ‘irrevocable licenses’”); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co., 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co., 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015) (“[T]his Court does not have the authority to overrule or ignore supreme court precedent.”). We therefore find this assignment of error lacks merit.

It’s not probable that the MSSC will grant cert and change the law of easement by estoppel or irrevocable license in Mississippi, but stranger things have happened, and I give credit to Girani’s lawyers for pursuing what appears to be the only possible avenue to get their client the relief he is seeking.

Any lawyer who has been in practice a while will recognize this kind of scenario. The client and his neighbors fall into a particular way of doing things until property changes hands and the new owner balks at continuing the longstanding custom. This could have been fixed years ago with a written and recorded easement, but everyone was comfortable with their cozy arrangement so why inject a bunch of lawyers into the picture? Only thing is that the lawyers get involved eventually anyway. “Pay me now or pay me later.”

An Object Lesson in Deed Draftsmanship

January 18, 2017 § 1 Comment

When Cynthia and M.L. Culley conveyed a 26.7-acre parcel of land to J.E. Fowler in 1969, the deed included the following language:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this fate by grantors herein in favor of the City of Jackson, Mississippi.

A dispute arose between Suzannah McGowan and Stephen and Rowena Carmody, with both claiming ownership of the property through the Culleys. The special chancellor granted a partial summary judgment concluding that the deed was unambiguous and did not convey the excepted property described above. The Carmodys appealed.

In Carmody v. McGowan, decided January 3, 2017, the COA affirmed, with the opinion by Judge Fair:

¶2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.
3d 10, 17 (¶20) (Miss. 2012).

¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows . . . .” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.

It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:

The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.

Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.

¶4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy [Corp. v. Perkins], 558 So. 2d [349] at 352 [(Miss. 1990)]; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument . . . and are not to be invoked to contradict the plain language of the deed.”).

¶5. The Carmodys do not explicitly argue that the deed is ambiguous – indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for ascertaining [their] intent.” Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 418 N.E.2d 744, 747 (Ill. 1981).

¶6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.

¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.

I think that what the Carmodys unsuccessfully were trying to articulate was the argument that one may not on the one hand exclude something from the conveyance while at the same time making the warranty of the conveyance subject to the thing excluded. Either: (1) the easement is excluded (“Less and except …”), and therefore is not conveyed; or (2) the subject property in its entirety is conveyed, but subject to the easement. I think they were trying to say that the two provisions are irreconcilable. And, they noted, why would Fowler have wanted to hang on to ownership of a little chunk of the tract that was subject to an easement? If all of that is what they were getting at, I think they had a good point.

But, as Judge Fair points out, Carmody’s argument was more along the lines that the two provisions were merely redundant, which gets us nowhere, because an instrument may have many redundant provisions and not be ambiguous.

At any rate, more careful draftsmanship would have avoided this swivet. Either exclude the easement as the special chancellor found here, or expressly include it and make the conveyance subject to it. A little thought into how the property should be conveyed can go a long way toward avoiding problems for your client and/or successors in interest down the line.

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