        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00365-COA

WILLIAM FRANCES RYAN AND PAMELA                                         APPELLANTS
REYNOLDS RYAN

v.

DAVID RAY AND NANCY RAY                                                   APPELLEES

DATE OF JUDGMENT:                        02/09/2017
TRIAL JUDGE:                             HON. JENNIFER T. SCHLOEGEL
COURT FROM WHICH APPEALED:               HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                 PATRICK W. KIRBY
ATTORNEYS FOR APPELLEES:                 DONALD ALAN WINDHAM
                                         MATTHEW WARD MCDADE
NATURE OF THE CASE:                      CIVIL - REAL PROPERTY
DISPOSITION:                             AFFIRMED - 08/21/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   This appeal arises from a dispute between adjoining landowners, William and Pamela

Ryan, and David and Nancy Ray, concerning an easement created in 1995—prior to their

interest or ownership in the properties at issue. We must determine whether the chancellor

erred when she (1) found that the deed granting the easement was ambiguous and (2)

resolved the ambiguity in favor of the Rays, finding a perpetual easement for ingress and

egress over the Ryans’ property. We affirm these findings as set forth below.

                                        FACTS

¶2.   In 2011, the Ryans purchased their beachfront property in Bay St. Louis, Mississippi,
via a warranty deed from David and Mary Baria. The warranty deed specified that the

conveyance was made subject to a “reserved easement for Ingress and Egress, on, over and

across the following described property,” referencing a driveway alongside their property

next to an adjacent rear lot owned by the Rays. The Rays had purchased their property in

2003 via a warranty deed which conveyed rights to the easement driveway over the adjacent

front lot now owned by the Ryans. In 2005, Hurricane Katrina destroyed the Rays’ residence

situated on their property. Subsequently, the Rays moved out of Mississippi but retained

ownership of the lot and continued use of the driveway as needed for lawn care and other

routine maintenance on the property.

¶3.    Sometime in 2013, the Rays listed their property for sale. The Ryans, having built a

home on their property since purchasing it in 2011, noticed the real estate sign on the

adjacent back lot, purporting to offer for sale a portion of the Ryans’ property. The Ryans

had a title examination performed on their property which revealed an easement reserved in

a 1995 warranty deed through their parcel for access to the adjacent back lot owned by the

Rays. The 1995 warranty deed specifically “retain[ed] an easement for the purposes of

ingress and egress on, over and across the above mentioned property to be used only for

access to the chapel.” The “chapel” was a colloquial term referencing a building that had

been situated on a once larger, common parcel, which encompassed both the Ryan and the

Ray properties and contained numerous structures. At all times since the 1995 warranty

deed, the “chapel” building was used as a residence—not as a chapel used for religious

services of any kind. The “chapel” residence was present when the Rays purchased their



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property in 2003 and was used as the Rays’ home until it was destroyed by Hurricane

Katrina.

¶4.    Both the Ray property and the Ryan property originated from a once single parcel

owned by the Kingsley House and New Orleans Day Nursery, a New Orleans charity. In

1993, Edwin and Joy Hyde acquired the property by warranty deed. Accompanying the

warranty deed to the Hydes was a survey that showed a number of structures on the property,

including the “Old House,” “Chapel,” and multiple “Camp” and “Bath” houses. In 1995, the

Hydes separated the property, conveying a beachfront parcel (the Ryan property) to N.B. and

Audrey Tournillon. It was at this time that the Hydes created the 1995 easement “for the

purposes of ingress and egress on, over and across the above-mentioned property to be used

only for access to the chapel . . . .” When the Hydes created this easement, the building

referred to as the “chapel” was actually used as a residence and not as a chapel for religious

services. In fact, at no time since the 1995 warranty deed was the “chapel” ever used for any

religious ceremonies, and at all relevant times it was used as a residence.

¶5.    In 1997, the Hydes further subdivided the property and conveyed the property now

owned by the Rays to Curtis Johnson via warranty deed. This deed conveyed to Johnson “an

easement for ingress and egress, over and across the following described land . . . .” The

easement in the 1997 warranty deed described the same property (the Ryan property) as

described in the 1995 warranty deed. In 2003, Johnson conveyed the property to the Rays

via warranty deed. This 2003 warranty deed purported to convey a fee simple interest in the

property previously described as an easement in both the 1995 and 1997 warranty deeds.



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¶6.    Following the title examination which revealed the 1995 easement, the Ryans placed

two physical barriers to block the driveway: one at the beginning of the Ryans’ driveway

(which they opened as needed only for their own use) and the other at the back of the

driveway adjacent to the Rays’ lot. The Ryans then filed a complaint to remove any cloud

of title, arguing that the 2003 warranty deed from Johnson to the Rays attempted to convey

a driveway used to access the Rays’ property and that the driveway portion of land was

actually an easement which had previously terminated when the chapel was destroyed.

Additionally, the Ryans sought injunctive relief to prohibit the Rays or their agents from

advertising marketable title to the portion of land in question. The Rays responded asserting

a counterclaim for a declaratory judgment that a perpetual easement for ingress and egress

had been created by one of the deeds, or in the alternative, that they had established an

easement by prescription.

¶7.    Following a trial, the chancellor found that the 1995 warranty deed containing the

express easement contained a latent ambiguity because of its use of the term “chapel.” The

chancellor went on to resolve the ambiguity and further found that the easement was created

with the intent to establish a perpetual easement for ingress and egress onto the Ray property.

The chancellor also made an alternative finding that the Rays had established a prescriptive

easement. The Ryans now appeal.

                                       DISCUSSION

¶8.    The Ryans first argue the chancellor erred by finding the term “chapel” rendered the

easement ambiguous. The Ryans further argue that even if the easement was ambiguous, the



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court erred by failing to consider parol evidence to resolve the ambiguity and further erred

by altering the nature of the easement from a specific-purpose easement to a perpetual

easement for ingress and egress.

¶9.    “Our standard of review of a determination of ambiguity, or the lack thereof, of a

[deed], and its subsequent interpretation is two-tiered.” Crisler v. Crisler, 963 So. 2d 1248,

1251 (¶5) (Miss. Ct. App. 2007) (citing Tupelo Redevelopment Agency v. Abernathy, 913 So.

2d 278, 283 (¶12) (Miss. 2005)). “Whether a [deed] is ambiguous is a question of law which

we review de novo.” Id. “If an ambiguity is found to exist, its interpretation is a matter for

the trier of fact[,] which we review under a substantial evidence/manifest error standard.”

Id.

       I.     Ambiguous Easement

¶10.   “[A]n easement may be acquired by express grant, implied grant (implication), or

prescription . . . .” Favre v. Jourdan River Estates, 148 So. 3d 361, 368 (¶20) (Miss. 2014)

(internal quotation mark omitted)). “[I]n the case of an express grant, the fact of the creation

of the easement, as well as its nature and extent, is determined by the language of the deed,

taken in connection with the circumstances existing at the time of making it.” Id. (internal

quotation mark omitted). Id. “Descriptions of easements may be fairly general,” but “any

description . . . needs accuracy and clarity.” Id.

¶11.   “A court interpreting a deed follows the same process as it does with contracts.”

Carmody v. McGowan, 222 So. 3d 1064, 1065 (¶2) (Miss. Ct. App. 2017) (citing

Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct.



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App. 2010)). “We begin by looking at the language of the instrument itself as contained

within its ‘four corners.’” Id. (citing Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352

(Miss. 1990)). “If the terms of the [deed] are subject to more than one reasonable

interpretation, the [deed] is considered ambiguous.” Maness v. K & A Enterprises of Miss.

LLC, No. 2017-CA-00173-SCT, 2018 WL 3791250, at *5 (¶22) (Miss. Aug. 9, 2018)

(internal quotation mark omitted).

¶12.   In the instant case, the deed at issue contains an easement “for the purposes of ingress

and egress on, over and across the above mentioned property to be used only for access to

the chapel.” It is obvious in this case that the use of the term “chapel” is ambiguous or

unclear. First, the term that the parties are at dispute over refers to a structure that is no

longer in existence. Second, and more importantly, both parties agree that the term “chapel”

does not represent its plain and ordinary meaning—neither now, nor at the time of the

easement’s creation. Before trial in the chancery court, the Ryans and the Rays stipulated to

the fact that at the time of the 1995 warranty deed containing the easement provision, “the

building referred to as the ‘chapel’ was actually used as a residence and not as a chapel that

was conducting any type of religious services (including weddings, funerals, and any other

religious ceremonies).” The parties also stipulated that “at no time since the 1995 warranty

deed has the building referred to as the ‘chapel’ been used for any such religious

ceremonies.” As such, the easement’s use of the term “chapel” is subject to more than one

interpretation—its plain sense and its colloquial meaning understood by the parties and their

predecessors in interest. Thus, it is clear that the language granting the easement presents



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an ambiguity. Applying a de novo review, we affirm the chancellor’s finding that the

easement was ambiguous.

¶13.   Next, we review the chancellor’s interpretation of the easement under the substantial

credible evidence standard. Crisler, 963 So. 2d at 1251 (¶5).

       II.    Express Easement for Perpetual Ingress and Egress

¶14.   “In ascertaining the intention of the parties from the language of the instrument, the

grant or reservation should be so construed as to carry out that intention, and, in case of

ambiguity or doubt, a grant or reservation of an easement ordinarily will be construed in

favor of the grantee.” Jackson Motor Speedway Inc. v. Ford, 914 So. 2d 779, 782 (¶9) (Miss.

Ct. App. 2005) (quoting Boggs v. Eaton, 379 So. 2d 520, 522 (Miss. 1980)). “Intent is a

question of fact, and is shown by the circumstances of the case, the nature and situation of

the property subject to the easement, and the manner in which the easement has been used

and occupied.” Calvert v. Griggs, 992 So. 2d 627, 633 (¶15) (Miss. 2008) (internal quotation

mark omitted). The supreme court has stated that “when the grant is ambiguous[,] the

construction given by the parties themselves, as proved by the manner in which they exercise

their rights under the conveyance, is legal evidence.” Warren v. Derivaux, 996 So. 2d 729,

736 (¶16) (Miss. 2008) (quoting Capital Elec. Power Ass’n v. Hinson, 226 Miss. 450, 461,

84 So. 2d 409, 412 (1956)). “[T]he general rule is that where the grant is in general terms,

the exercise of the right, with the acquiescence of both parties, in a particular course or

manner, fixes the right and limits it to the particular course or manner in which it has been

enjoyed.” Id. “This rule applies not [only] to the location of the easement, but also to the



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extent thereof[;] it applies to the course, manner, extent, and length.” Id.

¶15.   The chancellor found that the evidence presented showed that “the easement was

created for permanent access to the property now owned by the Rays, especially in the event

the properties were further subdivided, and there was no intent to limit access only to a

specific structure which was non-permanent in nature.” The evidence before the chancellor

included all of the deeds in the chains of title to both the Ryans and the Rays. After the

initial 1995 warranty deed creating the easement, which used the language “for access only

to the chapel,” all the subsequent deeds—in both the Ryans’ and Rays’ chains of

title—referenced an easement for ingress and egress without any reference to the chapel. The

evidence before the chancellor also included deposition testimony from Barbara Staehle, a

neighbor who lived next door to the Ryan and Ray properties for approximately seventeen

years (ending in 2005) and was a real estate agent involved in many of the transactions

concerning the properties. Staehle testified as to the use of the easement and colloquial use

of the term “chapel” in reference to the residential home on the Ray property. Additionally,

David Baria—the Ryans’ immediate predecessor in interest—testified by affidavit that the

Rays used the easement driveway to access their property. The 2011 deed from the Barias

to the Ryans specified the property conveyance was made subject to a reserved easement for

ingress and egress to the Ray property despite the fact the chapel residence was no longer in

existence. All of this evidence considered on the record by the chancellor belies the Ryans’

contention that the chancellor failed to use parol evidence to resolve the deed’s ambiguity.

¶16.   We hold that the chancellor’s finding of a perpetual easement for ingress and egress



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onto the Ray property was supported by substantial credible evidence, particularly

considering the deeds in both the Ryans’ and Rays’ chains of title identifying the easement

as one for ingress and egress and the consistent manner the easement was used for ingress

and egress to the property. This issue is without merit.

         III.   Prescriptive Easement

¶17.     Although the chancellor found that there was an express, perpetual easement over the

Ryan property for ingress and egress to the Ray property, the chancellor made an alternative

finding that in the absence of a perpetual easement, there was clear and convincing evidence

to support an easement by prescription using the doctrine of tacking. The Ryans argue on

appeal that the Rays failed to satisfy the elements necessary for a prescriptive easement. We

agree.

¶18.     In this case, there was an express easement granted, which the chancellor found was

one for perpetual ingress and egress to the property at issue. We affirm that decision as it

was supported by substantial credible evidence. Therefore, an alternative theory for

establishing an easement is unnecessary. But moreover, the alternative ground is legally

contradictory. An express easement and a prescriptive easement cannot co-exist. “The rule

is well settled that use by express or implied permission or license, no matter how long

continued, cannot ripen into an easement by prescription.” King v. Gale, 166 So. 3d 589, 594

(¶22) (Miss. Ct. App. 2015). Thus, the chancellor’s finding of a prescriptive easement was

legally erroneous, and we do not affirm on these grounds. The error does not require reversal

however, as the chancellor’s disposition is affirmed on other proper grounds as set forth in



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this opinion.

¶19.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




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