Gaw v. Seldon

11 Citing cases

  1. Johnson v. Highway 101 Invs., LLC

    319 P.3d 485 (Idaho 2014)   Cited 1 times

    We recognize that a minority of states adhere to a contrary reasonableness standard. See e.g. Skow v. Goforth, 618 N.W.2d 275, 278–81 (Iowa 2000) (refusing to enjoin construction of fence that would have intruded on a sixteen-and-a-half-foot-wide easement by as little as two inches; reasoning that balancing the needs of the dominant and servient estate owners will maximize aggregate utility); Musselshell Ranch Co. v. Seidel–Joukova, 362 Mont. 1, 261 P.3d 570, 577 (2011) (requiring removal of culvert installed in irrigation ditch, but stating that “[s]ome permanent encroachments may not justify a finding of unreasonable interference”); Mill Pond Condo. Ass'n v. Manalio, 910 A.2d 392, 395 (2006) (reciting the majority rule, but reaching the opposite conclusion where there was no evidence that sign interfered with use of the easement for ingress and egress); Gaw v. Seldon, 85 So.3d 312, 316–17 (Miss.Ct.App.2012) (owner of dominant estate not entitled to removal of encroaching columns until such time as they actually interfere with use of the easement); Baum v. Glen Park Props., 660 S.W.2d 723, 726–27 (Mo.Ct.App.1983) (allowing erection of sign within easement so long as it did not interfere with ingress and egress); D'Abbracci v. Shaw–Bastian, 201 Or.App. 108, 117 P.3d 1032, 1040 (2005); DeHaven v. Hall, 753 N.W.2d 429, 439–40 (S.D.2008). We find the majority approach more persuasive.

  2. Johnson v. Highway 101 Invs., LLC

    156 Idaho 1 (Idaho 2014)   Cited 4 times
    Holding that servient owner could not erect sign within easement boundaries; adopting this rule because it "provides a clear, bright-line standard" and "will avoid costly and time-consuming litigation concerning whether the servient estate owner's use of the easement area is reasonable"

    We recognize that a minority of states adhere to a contrary reasonableness standard. See e.g. Skow v. Goforth, 618 N.W.2d 275, 278–81 (Iowa 2000) (refusing to enjoin construction of fence that would have intruded on a sixteen-and-a-half-foot-wide easement by as little as two inches; reasoning that balancing the needs of the dominant and servient estate owners will maximize aggregate utility); Musselshell Ranch Co. v. Seidel–Joukova, 362 Mont. 1, 261 P.3d 570, 577 (2011) (requiring removal of culvert installed in irrigation ditch, but stating that "[s]ome permanent encroachments may not justify a finding of unreasonable interference"); Mill Pond Condo. Ass'n v. Manalio, 910 A.2d 392, 395 (2006) (reciting the majority rule, but reaching the opposite conclusion where there was no evidence that sign interfered with use of the easement for ingress and egress); Gaw v. Seldon, 85 So.3d 312, 316–17 (Miss.Ct.App.2012) (owner of dominant estate not entitled to removal of encroaching columns until such time as they actually interfere with use of the easement); Baum v. Glen Park Props., 660 S.W.2d 723, 726–27 (Mo.Ct.App.1983) (allowing erection of sign within easement so long as it did not interfere with ingress and egress); D'Abbracci v. Shaw–Bastian, 201 Or.App. 108, 117 P.3d 1032, 1040 (2005) ; DeHaven v. Hall, 753 N.W.2d 429, 439–40 (S.D.2008). We find the majority approach more persuasive.

  3. Berlin v. Livingston Prop. Owners Ass'n, Inc.

    NO. 2015-CA-01512-COA (Miss. Ct. App. Apr. 25, 2017)

    We address each of these contentions below, keeping in mind that "[a]n appellate court employs a limited standard of review in chancery matters." Gaw v. Seldon, 85 So. 3d 312, 316 (¶12) (Miss. Ct. App. 2012). "The findings of the chancery court will not be disturbed when supported by substantial evidence unless the court abused its discretion, applied an erroneous legal standard, was manifestly wrong, or committed clear error."

  4. Berlin v. Livingston Prop. Owners Ass'n, Inc.

    232 So. 3d 148 (Miss. Ct. App. 2017)   Cited 5 times
    In Berlin, we found that the circuit court did not abuse its discretion by awarding attorney's fees without a hearing or additional finding of facts given the history of the case.

    We address each of these contentions below, keeping in mind that "[a]n appellate court employs a limited standard of review in chancery matters." Gaw v. Seldon , 85 So.3d 312, 316 (¶ 12) (Miss. Ct. App. 2012). "The findings of the chancery court will not be disturbed when supported by substantial evidence unless the court abused its discretion, applied an erroneous legal standard, was manifestly wrong, or committed clear error."

  5. Brown v. Deutsche Bank Nat'l Trust Co.

    CAUSE NO. 3:14-cv-869-CWR-FKB (S.D. Miss. Jun. 30, 2015)   Cited 1 times

    The two remaining claims asserted against L & M are trespass and ejectment. "Liability for trespass requires proof of: (1) interference with the right of exclusive possession of one's land and (2) an invasion that is the 'direct result of some act committed by the defendant.'" Gaw v. Seldon, 85 So.3d 312, 318 (¶ 23) (Miss. Ct. App. 2012) (citing Thomas v. Harrah's Vicksburg Corp., 734 So.2d 312, 315 (¶ 7) (Miss. Ct. App. 1999)). Similarly, "[a] civil action seeking ejectment as relief may be maintained in all cases where the plaintiff is legally entitled to the possession of the land sued for and demanded."

  6. Kelley v. Wells Fargo, N.A.

    CAUSE NO. 1:13CV354-LG-JMR (S.D. Miss. Nov. 22, 2013)   Cited 4 times
    In Kelley, 2013 WL 6178243, at *2, the plaintiff was unable to pay her monthly mortgage, but claimed the bank wrongfully foreclosed on her home.

    "Liability for trespass requires proof of: (1) interference with the right of exclusive possession of one's land and (2) an invasion that is the 'direct result of some act committed by the defendant.'" Gaw v. Seldon, 85 So. 3d 312, 318 (¶23) (Miss. Ct. App. 2012) (citing Thomas v. Harrah's Vicksburg Corp., 734 So. 2d 312, 315 (¶7) (Miss. Ct. App. 1999)). Similarly, "[a] civil action seeking ejectment as relief may be maintained in all cases where the plaintiff is legally entitled to the possession of the land sued for and demanded."

  7. Metro. Water Dist. of Salt Lake & Sandy v. Sorf

    2023 UT App. 146 (Utah Ct. App. 2023)

    rule is necessarily accurate; the number of jurisdictions that have adopted the rule appears to us to be roughly equal to the number of jurisdictions that have rejected it or declined to apply it. Compare Squaw Peak Cmty. Covenant Church of Phoenix v. Anozira Dev., Inc., 719 P.2d 295, 299 (Ariz.Ct.App. 1986); Sand Lake Shoppes Family Ltd. P'ship v. Sand Lake Courtyards, LC, 816 So.2d 143, 145- 46 (Fla. Dist. Ct. App. 2002); Consolidated Amusement Co., Ltd. v. Waikiki Bus. Plaza, Inc., 719 P.2d 1119, 1123 (Haw. Ct. App. 1986); Johnson, 319 P.3d at 487; Aladdin Petroleum Corp. v. Gold Crown Props., Inc., 561 P.2d 818, 822 (Kan. 1977); Miller v. Kirkpatrick, 833 A.2d 536, 547 (Md. 2003); Xanadu Horizontal Prop. Regime v. Ocean Walk Horizontal Prop. Regime, 410 S.E.2d 580, 581 (S.C. Ct. App. 1991); Lamb v. Wyoming Game & Fish Comm'n, 985 P.2d 433, 437-38 (Wyo. 1999), with Skow v. Goforth, 618 N.W.2d 275, 278-81 (Iowa 2000); Mill Pond Condo. Ass'n v. Manalio, 910 A.2d 392, 395 (Me. 2006); Gaw v. Seldon, 85 So.3d 312, 317 (Miss. Ct. App. 2012); Baum v. Glen Park Props., 660 S.W.2d 723, 726 (Mo.Ct.App. 1983); D'Abbracci v. Shaw-Bastian, 117 P.3d 1032, 1041 (Or. Ct. App. 2005); DeHaven v. Hall, 753 N.W.2d 429, 439-40 (S.D. 2008).

  8. Stowe v. Edwards

    331 So. 3d 24 (Miss. Ct. App. 2021)   Cited 10 times
    Holding that plaintiffs waived their tolling argument by failing to raise it in the trial court

    Berlin v. Livingston Prop. Owners Ass'n, Inc. , 232 So. 3d 148, 154 (¶16) (Miss. Ct. App. 2017) (quoting Gaw v. Seldon , 85 So. 3d 312, 316 (¶12) (Miss. Ct. App. 2012) ). "The findings of the chancery court will not be disturbed when supported by substantial evidence unless the court abused its discretion, applied an erroneous legal standard, was manifestly wrong, or committed clear error."

  9. Mansour v. Stock

    271 So. 3d 620 (Miss. Ct. App. 2018)

    This Court has held that "[l]iability for trespass requires proof of: (1) interference with the right of exclusive possession of one's land and (2) an invasion that is the direct result of some act committed by the defendant." Gaw v. Seldon , 85 So.3d 312, 318 (¶ 23) (Miss. Ct. App. 2012) (internal quotation mark omitted). Furthermore, "because trespass is an intentional tort, there must be proof that the trespasser intended to enter upon the particular piece of land in question."

  10. Main St. Holding Inc. v. Omsiv Inc.

    203 So. 3d 668 (Miss. Ct. App. 2016)

    Id. Therefore, we will simply reverse and render an award of $10 in nominal damages, as the Supreme Court and this Court have done in prior cases. Id. (rendering judgment for $10 in nominal damages in the absence of proof of actual damages); seeReeves v. Meridian S. Ry. LLC , 61 So.3d 964, 968–69 (¶¶ 22–23) (Miss. Ct. App. 2011) (rendering judgment for $10 in nominal damages where there was no proof that trespass caused any actual damages); Gaw v. Seldon , 85 So.3d 312, 318 (¶¶ 21–24) (Miss. Ct. App. 2012) (same). We reject Main Street's argument that it was entitled to the reasonable rental value of the narrow strips of property at issue.