Game Warden

[Seymore]

lawyer... (an upstanding one)

And the first conservation officer to be banned by the lawyer moderators is.....drum roll.......

That's funny right there, I don't care who your are.

[BR549]

You mean to tell me that if you have land locked property, the court has to give you easement? The hell you say... Refer to my avatar... Easement Sheazment!!!

Yep, you can't deny someone access to their property just because you own all the land that surrounds it. You will be on the short end of that argument everytime. Don't even have to hire a lawyer for that one. Now the argument may be where the easement will be. The guy who own the land that surrounds the other guy may want to force him to go through a gully with a creek running through it versus a road that is already there. You can argue it, but, you will not win that one.

I've been arguing that very point in court now for going on 2 years. (will be 2 in August) It's very fustrating to say the least. My family has owned this land since 1934 and have continously paid the taxes on it and have hunted it all my life. We've also used their road continuosly since the 60's with their knowledge and approval. Now Anderson Tully has decided to play billy joe badass! Well they just met Bobby Joe! Should have a ruling in the next month or so.

[Deltaquack]

[quote="Deltaquack I know of some tickets Jimmy wrote last year that a Cleveland lawyer told me about (an upstanding one) that were are a bunch of crap.

dude you need to just quit[/quote]

Let me just share with you then what happened since you get so bent out of shape over nothing b/c the statement above doesn't mean much of anything other than what happened. There's been a little controversy with David Bailey and adjacent landowners so he decided he wouldn't be included in Donaldson Point. James Walker and Jimmy wanted to turkey hunt on James that day. There is in fact an easement to the said land but it isn't the best route (or at least the one they want). The road was real muddy the other day so James and Jimmy decided they'd park on the better road (which isn't included in the easement) and walk through David's land to get to where they wanted to hunt. Problem was they didn't anticipate David being there that particular day hunting. They walked up on him and he was in there on a bird. They acted like they didn't know they were on his land but like said earlier he told them they knew exactly where they were b/c Jimmy had written him a ticket in there last year for hunting over sweet potatoes. There's a lot more to the whole story than retaliation for getting a ticket. It'll all come out in court. I'm sure ya'll know him or you wouldn't be so bent out of shape.......but people that don't know certain game wardens don't get treated the same way. Am I taking up for David Bailey.....absolutely not....but it's not as clear cut as many may think b/c I'm sure he wasn't the one out there cutting timber.....the timber company was and could be the one at fault.

[Seymore]

You mean to tell me that if you have land locked property, the court has to give you easement? The hell you say... Refer to my avatar... Easement Sheazment!!!

Yep, you can't deny someone access to their property just because you own all the land that surrounds it. You will be on the short end of that argument everytime. Don't even have to hire a lawyer for that one. Now the argument may be where the easement will be. The guy who own the land that surrounds the other guy may want to force him to go through a gully with a creek running through it versus a road that is already there. You can argue it, but, you will not win that one.

I've been arguing that very point in court now for going on 2 years. (will be 2 in August) It's very fustrating to say the least. My family has owned this land since 1934 and have continously paid the taxes on it and have hunted it all my life. We've also used their road continuosly since the 60's with their knowledge and approval. Now Anderson Tully has decided to play billy joe badass! Well they just met Bobby Joe! Should have a ruling in the next month or so.

There must be some other circumstances with this case because it shouldn't take two years to figure out in court. There must have never been an easement recorded on the deed to begin with and the property owners just had a gentleman's agreement. A new owner must have come along who decides nobody can cross his land. I can't believe an attorney would take his money for a long court fight to argue that he doesn't have to give an easement. Now if he is disputing where that easement will be, that may be another matter. You may want to go in one way and he wants it another and I could see where that would take a protracted court battle if the two sides couldn't agree. Even at that it's an awful lot of legal fees to be fussing over something he will end up having to give to begin with.

I had a case where property was land locked and we had an easement. The easement was over a gully and washed out area that by engineers estimates would take $50,000.00 to build a usable road. The guy I was dealing with had a very nice gravel road that went from a County Road right to the property. He was trying to be a bad booty thinking I'd give up and he'd somehow acquire the landlocked house. I got to digging deeper and found that the easement we had was from a County Road that had been abandoned by the County. Therefore I didn't have an easement from a current road maintained by a government entity which is what the law requires. I sued him in Chancery Court and had my new easement across his nice gravel road recorded in six months.

Something everyone may want to be aware of is something called adverse possession. If there is no easement given on a deed but the land owner allows a certain activity to take place. After a certain amount of time, I'm thinking 7 years but school was a long time ago, then that easement becomes just as if it were written. Of course the person claiming the easement would have to go to court and claim adverse possession but the mechanism is there to do it.

I'm not a lawyer so if any of you attorneys see something I'm missing, which there probably is, fire away. Ain't gonna hurt my dealings none.

[Caller1]

Its all God's land, and we are his people. Seems like you should be able to hunt where you want when you want. Private property! Sheez....

Doesn't belong to any of us. Want proof.... try to take it with you....

I like all the Game Wardens in Bolivar and Sunflower Counties. They are the best group of guys to be found. Hard working, community minded, can't do wrong,well dressed, God fearing, family men....

[BR549]

Yep, you can't deny someone access to their property just because you own all the land that surrounds it. You will be on the short end of that argument everytime. Don't even have to hire a lawyer for that one. Now the argument may be where the easement will be. The guy who own the land that surrounds the other guy may want to force him to go through a gully with a creek running through it versus a road that is already there. You can argue it, but, you will not win that one.[/quote]

I've been arguing that very point in court now for going on 2 years. (will be 2 in August) It's very fustrating to say the least. My family has owned this land since 1934 and have continously paid the taxes on it and have hunted it all my life. We've also used their road continuosly since the 60's with their knowledge and approval. Now Anderson Tully has decided to play billy joe badass! Well they just met Bobby Joe! Should have a ruling in the next month or so.[/quote]

There must be some other circumstances with this case because it shouldn't take two years to figure out in court. There must have never been an easement recorded on the deed to begin with and the property owners just had a gentleman's agreement. A new owner must have come along who decides nobody can cross his land. I can't believe an attorney would take his money for a long court fight to argue that he doesn't have to give an easement. Now if he is disputing where that easement will be, that may be another matter. You may want to go in one way and he wants it another and I could see where that would take a protracted court battle if the two sides couldn't agree. Even at that it's an awful lot of legal fees to be fussing over something he will end up having to give to begin with.

I had a case where property was land locked and we had an easement. The easement was over a gully and washed out area that by engineers estimates would take $50,000.00 to build a usable road. The guy I was dealing with had a very nice gravel road that went from a County Road right to the property. He was trying to be a bad booty thinking I'd give up and he'd somehow acquire the landlocked house. I got to digging deeper and found that the easement we had was from a County Road that had been abandoned by the County. Therefore I didn't have an easement from a current road maintained by a government entity which is what the law requires. I sued him in Chancery Court and had my new easement across his nice gravel road recorded in six months.

Something everyone may want to be aware of is something called adverse possession. If there is no easement given on a deed but the land owner allows a certain activity to take place. After a certain amount of time, I'm thinking 7 years but school was a long time ago, then that easement becomes just as if it were written. Of course the person claiming the easement would have to go to court and claim adverse possession but the mechanism is there to do it.

I'm not a lawyer so if any of you attorneys see something I'm missing, which there probably is, fire away. Ain't gonna hurt my dealings none.[/quote]

I wish it were that simple Jason. We've run into so good lawyering. They can't win so they attack the credibility of the deed and ownership. They keep throwing motion after motion at you to make you spend money hoping you will simply give up and quit. This is how ATCO operates. They've done this for years up and down that river. There is no telling how many thousands of acres they've gained this way. My dad even did the abstract for them when they bought the property in late 60's. They knew before they bought the land we had a claim over there. We've never done anything over there till 2 years ago I went in to build a cabin and all of a sudden they changed their attitude. Told me I couild no longer use their row and then even charged me with criminal tresspass afterward. Untill a judge rules on the property and clearly defines the boundry the access cannot be touched. The neighbors next to them just went thru the same thing with em a few years back. They went all the way to washington d.c. before finally winning. Took 7 years and some mighty deep pockets. I've already spent well over 10 grand just defending myself from the trespass charge. And lost! Judge ruled that once the man told me I couldn't use that road I had no right to travel it anymore. Regardless of what easement was in place prior. Even if the easement had been in writing! It's a tough situation!

[BeastMaster]

That being said, you can't take your house with you, nor your truck... So i can come use it whenever i want??? Thats a great concept caller1.

How big were you grinning when you were typing this

I like all the Game Wardens in Bolivar and Sunflower Counties. They are the best group of guys to be found. Hard working, community minded, can't do wrong,well dressed, God fearing, family men....

[outlaw josey wales]

i think this is all happening over the previous ticket he wrote the landowner. it is a lot of bs over there and behind the levee . people over there spend more time worrying about what you doing than enjoying themselves. we got a small place on this side of the levee to hunt that no one else hunts on and i aint gotta worry about anybody messing with me. it is alot of folks just like this case that aint got nothing better to do than make your hunting living hell and that just sucks. i used to hunt over there but got tired of everytime getting asked 100 ???s on where i beeen ,who you with, who you hunting on and all that crap. the donaldson point club is going to shiit anyway cause they trying to weed out all the paying members by raising dues every year and making it just a land owner club anyway.

[BeastMaster]

BR549.... we need to go have a beer sometime.. been there done that, i get so sick of people saying "YOU CAN'T DO THAT or THE LAW SAYS THIS or THE LAW SAYS THAT" man it dont matter what the law says, it only matters how much money you got and what that judge says.. period and im sure you can relate to that..

[hntrpat1]

BR549.... we need to go have a beer sometime.. been there done that, i get so sick of people saying "YOU CAN'T DO THAT or THE LAW SAYS THIS or THE LAW SAYS THAT" man it dont matter what the law says, it only matters how much money you got and what that judge says.. period and im sure you can relate to that..

AMEN!

[Po Monkey Lounger]

If you own land that is landlocked, then the first step to gaining access to it is to try to work out a deal with an adjoining landowner for an access easement and then record the easement in the land records to make sure it is preserved. Once established, the easement will "run with the land".

IF the voluntary negotiation approach does not work, then the owner of landlocked land can file a petition in chancery court to establish the easement ---either an easement of necessity, or a prescriptive easement (similar to adverse possession ---been using the means of access for so long openly and without objection from other landowner that an easement has been established by use). An access easement of necessity is apparently what is being sought in the case under discussion in this thread. Edited to add: MS Code 65-7-201 is another option ---see below (credit to Hambone for pointing this out).

When seeking such an easement of necessity (whether by common law or statutory 65-7-201), the landowner seeking the easement should request as limited an easement as possible to gain the necessary access, at a point on the other person's property that would do the least amount of harm to that property --the most direct route that will not adversely affect the use of the other property. There may be more than one such potential point of access that is reasonable under the circumstances. The Court, after hearing the evidence from both sides, would then render a decision, selecting the most reasonable point of access for the easement, determining the parameters and limitations of the easement, and deciding how much money the party seeking access should have to pay for it (it ain't gonna be free). The parameters of the easement would be the minimum necessary to gain the access. (I note that in the case under discussion, the article in the Cleveland paper quoted from the landowner lawyer's affidavit and/or petition that he was seeking an easement across "all" of the defendant's land ----suffice it to say that such a request is overly broad and will not be granted by the court --- the type of easement that would be granted would likely be no wider than 15-20 feet wide and extend from a specific point A to point B, meandering through a very specifically defined route ---it would NOT be enough land to hunt upon and the easement would likely be restricted only to access ---in other words, no hunting on the easement).

Any time you are considering buying landlocked land, you should consider the issue of access in advance of the purchase. IF there is no legally established easement, then you will need to first inquire about the possibility of purchasing an easement from the adjoining landowner(s). If there is no positive response to this inquiry, then you will need to factor into the purchasing equation the cost of going to court and obtaining the necessary access easement. It is not wise to presume the existence of an easement and just cross another person's property without persmission --- such could lead to a trespass ticket and bad relations with the adjoining landowner(s) ---your future neighbors for possibly a long time.

The landowner-lawyer in this case should have already pursued court action to establish the easement BEFORE just crossing another's property without permission ---for any reason. We really don't know the full history between these two parties, so it is difficult to say who is "right" or "wrong" in this matter from a moral or ethical standpoint. But, if the property line was clearly marked, and the lawyer/his guest did not have permission to enter the Bailey property, and did not have a legally established easement upon the Bailey property at the location where they were found by Bailey, then it is very likely that a "trespass", as defined by our MS statutes, did occur. The landowner-lawyer's chancery court action, after the fact, will not prevent the trespass prosecution.

And if Bailey did in fact cut trees that were on the property of the landowner-lawyer, then he will have to pay to the landowner-lawyer the fair market value of the cut tress, plus the statutory penalty for each tree as set forth in our MS statute(s) (that is unless he has waited too long to pursue the claim, letting the SOL run).

While this sounds like a matter that should have been worked out between the parties without the need for court intervention, there is likely an easy explanation for this mess ---both parties have been at fault in this ongoing pissing match. And like most pissing matches that involve court actions, it will be expensive for all of the pissers.

What we have heeah, is a failya to c o m m u n i c a t e.

BTW: with regard to the prosecution of the game warden for trespass, the wisdom of such action by Bailey is questionable. The warden was a guest of the lawyer and likely relying upon the lawyer with respect to where to hunt. While that is probably not a legal defense to "trespass" (and probably would not even be a good enough excuse that the warden himself would let someone else off the hook in the same situation), it might seem that Bailey could have just focused upon the lawyer-landowner for the prosecution. The inclusion of the game warden most likely stems from the previous ticket(s) he wrote to Bailey ---a form of retribution. So, this matter seems "personal" in all respects. And when I say that Bailey's actions in prosecuting both are questionable, I am not talking about in the legal sense, but in the matter of common sense. This game warden will likely be patroling that area for quite some time (unless he loses his job over this matter). And since landowners often need the assistance of game wardens to prevent poaching, etc., it is usually a good idea to develop a good relationship with the area wardens. Likewise, it is usually a good idea to develop a good relationship (to extent possible) with adjoining landowners ---your neighbors ---but, this is a two way street, and it takes two to tango.

Little grasshoppers: let this situation be a prime example to you of how NOT to behave in land dispute issues.

[Hambone]

IF the voluntary negotiation approach does not work, then the owner of landlocked land can file a petition in chancery court to establish the easement ---either an easement of necessity, or a prescriptive easement (similar to adverse possession ---been using the means of access for so long openly and without objection from other landowner that an easement has been established by use). An access easement of necessity is apparently what is being sought in the case under discussion in this thread.

But hasn't the common law Chancery Court proceeding been at least somewhat superseded by Miss. Code Ann. Section 65-7-201, which provides for a private "condemnation" of a right of way?

[Po Monkey Lounger]

MS Code 65-7-201 is one way that a private road could be established over the land of another. It is not my understanding that it supercedes other available means of relief in chancery court for access easements.


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§ 65-7-201. Private way established.

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

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Folks who simply need "access" across the property of another for recreational purposes may not need a "private road" laid out across that property, nor the expense that comes with it. But, if a private drive or road is what you needed, and you were willing to pay for it, then Section 65-7-201 would be an option.

[Hambone]

MS Code 65-7-201 is one way that a private road could be established over the land of another. It is not my understanding that it supercedes other available means of relief in chancery court for access easements.


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§ 65-7-201. Private way established.

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

--------------------

Folks who simply need "access" across the property of another for recreational purposes may not need a "private road" laid out across that property, nor the expense that comes with it. But, if a private drive or road is what you needed, and you were willing to pay for it, then Section 65-7-201 would be an option.

I went back and did a little review to bring my rusty memory up to speed. Actually, 65-7-201 was intended to replace the old statute that allowed an individual to petition the county board of supervisors to establish a private road. I imagine the change was the result of the supervisors' association's lobbying efforts - they didn't want to be placed in the judicial role of deciding landowners' disputes. I agree that the common law easement by necessity/prescriptive easement proceedings in Chancery Court are still viable.

[TODO]

At best its an unfortunate situation regardless. And i am + 1 with Caller 1!