     Case: 11-60394   Document: 00511902147     Page: 1   Date Filed: 06/27/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  June 27, 2012
                                  No. 11-60394
                                                                  Lyle W. Cayce
                                                                       Clerk
MARLOW, L.L.C.,

                                            Plaintiff-Appellant
v.

BELLSOUTH TELECOMMUNICATIONS, INCORPORATED,

                                            Defendant-Appellee


                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        In this diversity suit, a landowner seeks injunctive and compensatory
relief from a telephone company for a trespass and for slandering its title to
certain property. The district court granted summary judgment to the telephone
company. We disagree with that court’s conclusion that the telephone company
had a constructive license but agree that it is not liable for slander of title. We
AFFIRM in part, REVERSE in part, and REMAND for further proceedings.


               FACTUAL AND PROCEDURAL BACKGROUND
        In 2002, the defendant BellSouth Telecommunications, Inc., a telephone
company licensed to conduct business in Mississippi, obtained two easements
from Earl Burkett on homestead property in Forrest County, Mississippi. Earl’s
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wife Helen did not join in the conveyances. One easement was over a 10' by 315'
strip under which underground cable would be buried. The other was an
easement on a 40' by 42' parcel, adjoining the other easement, on which
BellSouth would place cabinets, a power pedestal, a cross-connect box, and other
fixtures above ground. Both easements were properly recorded in the county
land records.1
      In December 2006, the Burketts conveyed the land by warranty deed to
the plaintiff Marlow, L.L.C. In March 2010, Marlow sent BellSouth a letter
demanding the removal of its equipment on the basis that the 2002 easements
were void due to the absence of Helen Burkett’s signature. In April 2010,
Marlow filed suit in the Chancery Court of Forrest County seeking confirmation
of title, injunctive relief, and damages for trespass. BellSouth removed the
action to the United States District Court for the Southern District of
Mississippi.
      Once in federal court, Marlow filed an amended complaint, adding claims
for slander of title and punitive damages based on BellSouth’s attempt in 2010
to cure the deficient easements by obtaining Helen Burkett’s signature on
additional easements. After BellSouth’s answer was filed, Marlow moved for
partial summary judgment, requesting the court declare the easements void. In
February 2011, the court granted the motion. The court concluded that the 2002
easement was on homestead property and required the joinder of both spouses.
See Miss. Code Ann. § 89-1-29. That ruling is not contested.
      BellSouth then moved for summary judgment on all of Marlow’s remaining
claims, namely, for trespass, injunctive relief, slander of title, and punitive
damages. Marlow responded and moved for a permanent injunction. In May
2011, the district court granted BellSouth’s motion and denied Marlow’s. The

      1
         There was evidence that BellSouth has maintained telecommunication lines across
this property since 1996.

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court interpreted a Mississippi statute as granting BellSouth a “constructive
license” to remain on Marlow’s land, thereby barring injunctive relief. The court
also held that Mississippi’s prior trespass doctrine prevented Marlow from
collecting compensatory damages for a trespass. Finally, the district court
rejected Marlow’s slander of title and punitive damages claims, finding there
was no evidence BellSouth acted with malice in obtaining Helen Burkett’s
signature on the 2010 easements. This timely appeal by Marlow followed,
challenging each of the conclusions we just described.
                                        DISCUSSION
       “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008). Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
I. Constructive License
       The district court held that BellSouth had a constructive license2 across
the Marlow property based on the court’s interpretation of this statute:


       2
         The label of “constructive license” may have been borrowed from the caption of the
statute that appears only, as far as we can discover, on the electronic version available from
Westlaw. That phrase has never appeared with the statute in either a bill or a codification
adopted by the legislature. We also do not find that any court had previously used that phrase
in connection with the statute. The official version of the 1972 Mississippi Code is the revised
manuscript approved in 1972, as thereafter revised, and as published by the company with
which the State contracts. Miss. Code Ann. §§ 1-1-8 & 1-1-35 (Rev. 2005). The publishing
company is LexisNexis. 1 Miss. Code Ann. v-vi. The title in the original 1972 printing of the
Mississippi Code, which is the current version of the statute, is “Liability for damages caused
by erection, continuance and use of lines.”
        Captions to bills and titles to individual statutes “may be resorted to in order to
ascertain the intent of the legislature.” Giles v. Friendly Fin. Co. of Biloxi, 185 So. 2d 659, 662
(Miss. 1966). “Constructive license” is not part of the official title. What is now Section 77-9-
715 was originally entitled “Liability for damages” (1857 Code), then had no title at all (1871
and 1880 Codes), then was “The same [referring to “Telegraph companies may erect lines,
etc.]: damages, etc.” (1892 Code), which remained largely unchanged until the 1972 title. We
find these titles consistent with our analysis of the text as we will discuss.

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      Telegraph and telephone companies or associations shall be
      responsible for any damages which any person shall sustain by the
      erection, continuance, and use of telegraph and telephone lines and
      the fixtures thereof. In any action for the recovery thereof brought
      by any owner or possessor of land over or along which such line may
      run, damages shall be assessed for the permanent continuance of
      such line and fixtures, and on payment thereof the right to continue
      and use such line and fixtures shall exist as if by leave and license
      of the owner of the land.

Miss. Code Ann. § 77-9-715.
      The district court held that this statute granted BellSouth a “constructive
license to leave its lines and fixtures in place” once compensation was paid. The
court rejected Marlow’s argument that the statute applied only when telephone
lines had been placed on public rights-of-way.
      Sitting in diversity, we employ the methods of statutory interpretation
used by the relevant state’s courts. See Keenan v. Donaldson, Lufkin & Jenrette,
Inc., 529 F.3d 569, 572-73 (5th Cir. 2008). In Mississippi, “[t]he primary rule of
construction is to ascertain the intent of the legislature from the statute as a
whole and from the language used therein.” DePriest v. Barber, 798 So. 2d 456,
458 (Miss. 2001) (quotation marks and citation omitted). The Mississippi
Supreme Court has said it “resorts to the canons of statutory interpretation only
where a statute is ambiguous or silent on a specific issue.” Lutz Homes, Inc. v.
Weston, 19 So. 3d 60, 62 (Miss. 2009). When the statute is ambiguous, “the
court, in determining the legislative intent, may look not only to the language
used but also to its historical background, its subject matter, and the purposes
and objects to be accomplished.” DePriest, 798 So. 2d at 458 (quotation marks
and citation omitted).
      Marlow argues that the statutory section on which BellSouth relies cannot
be understood without considering the two immediately preceding sections of the
Code that were adopted at the same time. Those sections, Marlow insists,


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provide the necessary context that reveal the limited reach of Section 77-9-715.
As we will explain, these three sections were adopted together a century and a
half ago and have remained largely unchanged.
      We first quote the prior two sections. The first authorizes telephone
companies to erect their lines along public roads and similar property:

      All companies or associations of persons incorporated or organized
      for the purpose of constructing telegraph or telephone lines shall be
      authorized to construct the same, and to set up and erect their posts
      and fixtures along and across any of the public highways, streets, or
      waters, and along and across all turnpikes, railroads, and canals,
      and also through any of the public lands. Such lines, posts and
      fixtures shall be so constructed and placed as not to be dangerous to
      persons or property, and as not to interfere with the common use of
      such roads, streets, or waters, or with the convenience of any
      landowner more than may be unavoidable. In case it shall be
      necessary to cross any highway, such lines, posts and fixtures shall
      be so constructed as to cross such highway at right angles.

Miss. Code Ann. § 77-9-711.
      The next section allows local officials to regulate the construction:
      The board of supervisors of any county, and the governing
      authorities of any city, town or village, through which any telegraph
      or telephone line may pass, shall have power to regulate, within
      their respective limits, the manner in which the same shall be
      constructed and maintained, with a view to the safe and convenient
      use of the public highways and streets. If the proprietors of any
      telegraph or telephone line refuse or omit to comply with such
      regulations, the board of supervisors, or the authorities of the city,
      town or village, may cause such line to be abated within its
      jurisdiction as a nuisance.

Miss. Code Ann. § 77-9-713.

      The district court rejected Marlow’s argument that these prior two sections
were relevant. The court’s first step was to determine whether Section 77-9-715
was ambiguous. The section itself contains no words limiting it to lines placed


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on public ways. Viewing the statute in isolation, the district court held it
unambiguously provided that if a telephone line were placed on land without an
easement first being acquired, it could remain upon payment of damages. The
court held that this clear language would be “subverted” if guidance from other
statutory sections were used to alter the meaning.
      The district court’s refusal to consider the series of three statutes together
has some plausibility. Meaning should be sought first in the language of the
statute; only when it is unclear will “canons of statutory interpretation” be
brought to bear. Lutz Homes, 19 So. 3d at 62. Where we find error is the
manner in which the district court applied that principle. If each section of a
lengthy enactment must be interpreted solely by determining whether the words
within the watertight compartment of that single section are ambiguous, then
all premises and limitations that are clear from looking at the entire enactment
must be restated in every relevant subpart.           That rule would create a
cumbersome drafting requirement not reflective of common practice.
      The Lutz Homes court stated the rule that the language of the statute
controls, but it then quoted three different sections of the enactment involving
regulation of residential builders and also referred generally to the entirety of
the act. Id. at 62-63. Though the court never declared whether any section of
the statute was ambiguous, it also never identified a principle of construction it
was using to find meaning. We conclude the court implicitly determined there
was no ambiguity after examining all relevant sections of the enactment.
      Consistent with our conclusion that multiple-section statutes are written
to be viewed together is a doctrine called the “whole-act rule.” It provides that
one section of an enactment is analyzed in light of the whole:
      All parts of the act should be considered, compared, and construed
      together. It is not permissible to rest the construction upon any one
      part alone, or upon isolated words, phrases, clauses, or sentences,
      or to give undue effect thereto. The legislative intention as collected

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      from an examination of the whole as well as the separate parts of a
      statute, is not to be defeated by the use of particular terms, but, to
      the contrary, will prevail over the literal import thereof.

Kellum v. Johnson, 115 So. 2d 147, 150 (Miss. 1959) (quotation marks and
citation omitted). More recently, the court wrote that a “disputed section should
be interpreted in light of all other provisions of the Act.” State v. Beebe, 687 So.
2d 702, 707 (Miss. 1996) (citing Broadhead v. Monaghan,117 So. 2d 881, 886
(Miss. 1960) (holding that when “construing a statute the court must seek to
ascertain the legislative intent from the statute as a whole, and not from a
segregated portion, considered apart from the rest of the statute”)).
      Even if the whole-act rule is one of the canons that cannot be used until
first finding ambiguity, Section 77-9-715 alone does not provide an answer to the
issue before us. That Section says nothing about telephone companies having
a right to construct their lines. The statute is premised on there being a right,
but the breadth of the right is unstated. BellSouth perceives an implication that
it may lawfully construct telephone lines without first getting an easement from
the fact that telephone companies must pay damages caused by “the erection,
continuance, and use” of the lines, and that upon payment “the right to continue
and use such line and fixtures shall exist” as if by a license. We do not see what
BellSouth sees. A statute solely about liability for damages from construction
does not imply that construction can be anywhere.
      A grant of a license across any particular land in the state is not found in
this one section’s words. Thus we follow Mississippi’s direction and look at all
the relevant sections from the same enactment. Sections 77-9-711 through 77-9-
715 have been largely unchanged since they were first adopted in 1857. Miss.
Code Ch. XXXV, arts. 45-47 (1857). The original enactment applied only to the
technological marvel of that age, the telegraph. The legislature added telephone
lines and companies when it adopted a new code in 1906. Miss. Code §§ 925-27


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(1906).3 As in today’s Section 77-9-711, the 1857 statute allowed companies to
string lines on “posts and fixtures, along and across any of the public highways,
streets, or waters of this State, and along and across all turnpikes, railroads, and
canals, and also through any of the public lands.” Miss. Code Ch. XXXV, art. 45
(1857). There was no right granted across private lands. The next section,
continued today as Section 77-9-713, empowered local officials to regulate the
construction within their jurisdictions “with a view to the safe and convenient
use of the public highways.” Miss. Code Ch. XXXV, art. 46 (1857). The second
section is a limitation on the first, namely, that the construction of lines which
the first section authorized could be regulated by local officials.
       We consider these two related provisions as we decide what the 1857
version of Section 77-9-715 meant. The original statute began: “Such companies,
or associations, shall be responsible for any damages which any person may
sustain, by the erection, continuance, and use of such line, and the fixtures
thereof. . . .” Miss. Code Ch. XXXV, art. 47 (1857). The damages which require
compensation are those involving “such line.” The only possible antecedent
telegraph line (and later, telephone line) to which “such line” could refer is one
strung across public highways, streets, waters, and the like. Upon “payment [of
damages], the right to continue, and use such line and fixtures shall exist as if
by leave and license of the owner of the land.” Id. This damage section applies
only to “such line,” which means the statute cannot be read as a general
authorization to build on private land and pay damages later.
       We have already noted that the coverage of what is now Section 77-9-715
was extended to telephone companies in 1906. That was done by changing the


      3
        The commissioners authorized to draft a new code had authority to “submit for the
consideration of the legislature such amendments, alterations and additions as they might
deem pertinent to existing general legislation, and which in their judgment would make it
more effective.” Whitfield, Catchings, and Hardy, Miss. Code of 1906, Preface at iii (Draft
1905). They suggested the insertions. Id., Amendments following p. 1366, at [1], 17.

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first words of the section from “Telegraph companies or associations” to
“Telegraph and telephone companies.” Compare Miss. Code § 856 (1892) with
Miss. Code Ch. 24, § 927 (1906). What is now Section 77-9-715 otherwise
remained unchanged from 1857 through adoption of the 1942 Code; in 1972,
“such line” was replaced with “telegraph and telephone lines,” and the lengthy
first sentence was broken in two. Compare Miss. Code Ch. 7, § 7839 (1942) with
Miss. Code Ann. 77-9-715 (1972). No further changes have been made.
       This extremely modest set of revisions supports a finding that the three
statutes remain true to their original application only to public ways.
       We have not yet considered a fourth statute in the current series involving
telephone companies. Section 77-9-717 grants the right of eminent domain. The
three sections we have been discussing have been kept together since 1857. The
first Code to have eminent domain authority for telegraph companies was in
1892. Miss. Code § 858 (1892).4 The current statute is brief:
       Telegraph and telephone companies, for the purpose of constructing
       new lines, are empowered to exercise the right of eminent domain,
       as provided in Chapter 27 of Title 11, Mississippi Code of 1972.

Miss. Code Ann. § 77-9-717. BellSouth argues that a constructive license
“complements” the power of eminent domain in the following way. If the
telephone company cannot reach an agreement with a landowner, then it may
condemn the property. Alternatively, if a telephone company installs a line
without authority, then the landowner is owed damages.
       We disagree. BellSouth’s interpretation would make the statutes compete,
not complement. Under its theory, once the company’s negotiations with a



       4
        The 1857 enactment granted no right of eminent domain. Such authority was later
given and at least twice repealed. See So. Teleg. Co. v. Ala. Great So. R.R., 1 Miss. Dec. 489,
494 (1885) (1876 condemnation authority for telegraph companies repealed in 1880); Ala. &
V. Ry. Co. v. Cumberland Tel. & Teleg. Co., 41 So. 258, 259 (Miss. 1906) (1886 condemnation
authority for telephone companies repealed in 1892).

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landowner failed, it could either just construct the line and pay later, or instead
file for condemnation, allow the proceedings to be completed, pay compensation,
then build. Whether accidentally or intentionally done, build now without
permission and pay later upon agreement or court order could displace eminent
domain. There is a limited right of immediate possession available to certain
holders of eminent domain authority, not including telephone companies. Miss.
Code Ann. § 11-27-81. Under that scheme, there must be a complaint filed in
court, an appraisal done under court order, and initial compensation filed in
court before construction begins. Id. § 11-27-83, -85. BellSouth erroneously
interprets Section 77-9-715 to give more expansive power on this subject than
does any other statute to any other entity.
      Eminent domain authority complements the original grant of rights, but
the original grant was limited to using public ways. Our interpretation is that
the later explicit grant of eminent domain authority regulated the crossing of
private lands as a complement to the original grant of authority that regulated
the crossing of public lands.
      Beyond arguments about the language, BellSouth argues policy. It says
the complement of a constructive license is needed to prevent “forfeiture of lines
already laid. . . .” That appears to be incorrect under Mississippi law. If the
holder of eminent domain rights lays a errant line, there may be a corrective:
             In the case before the Court, United has the power of eminent
      domain, and although it was a trespasser on Berry’s land when it
      constructed its pipeline, Berry is not entitled to have the value of
      the pipeline added to the value of the easement in determining his
      damages for taking his property by eminent domain. However,
      Berry is entitled to maintain a separate suit for trespass against
      United which right was reserved to him in the final judgment [in
      the condemnation action]. Berry’s damages for taking his property
      for public use in the condemnation proceedings, and his damages for
      the trespass by United in another action constitute the full measure
      of the right of Berry.


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Berry v. United Gas Pipe Line Co., 370 So. 2d 235, 237 (Miss. 1979). We are not
holding this precedent applies but only noting its possible relevance.
      BellSouth’s fundamental argument is that Section 77-9-715 evinces a
public policy of allowing telephone lines to remain in place once constructed,
never to be torn down for the mere absence of an easement. Such a right has
never previously been recognized by the state’s courts. It would be even more
difficult to make that argument had the three parts of the act we have discussed
been subsections of the same statute. By that, we are only observing that it
would then be an unavoidable fact that the damage section is ancillary to the
earlier section on construction. Under the whole-act rule, though, the connection
still must be recognized.
      Helping confirm our understanding of Section 77-9-715 is some early
caselaw explaining how the provision for damages might be used. Some public
streets were built only on easements, and the adjacent land owners had title to
the center of the streets. Stowers v. Postal Telegraph-Cable Co., 9 So. 356 (Miss.
1891). In such a situation, the Mississippi Supreme Court held that a city could
not authorize a telegraph company to erect its line without first paying
compensation to the private land-owner who owned the fee. Id. Authority to
build over the objection of the private owner “can only be secured by the exercise
of the right of eminent domain, and upon due compensation being first made.”
Id. The statutes we are reviewing were not discussed in the court’s brief opinion,
but we conclude the holding is consistent with Section 77-9-715.
      Another possible example of when damages are owed under the statute
was when, during construction, a company cut timber on the adjacent land-
owner’s property. Clay v. Postal Telegraph-Cable Co., 70 Miss. 406, 11 So. 658
(1892) (facts stated only in 70 Miss.). Nothing in the opinion suggests the line
itself was on private property. The company had first obtained permission from
the county to build “along the public highways,” and also “to cut, trim and

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remove any trees, limbs or other obstructions in the way of same, upon the
margin or within the width of said highways.” Id. at 406-07. The court held that
the land-owner had a right to trespass damages.
      In conclusion, the statute is not ambiguous. The whole act pertains to
lines placed on public ways. Section 77-9-711 grants a right to build on certain
public land. Section 77-9-713 involves local government in regulating the
construction. Section 77-9-715 provides a remedy to landowners whose property
is damaged during construction or continuation of the authorized lines. We see
nothing in these provisions that grant to telephone companies any rights to place
their lines on property other than those on which there already were public
rights.
      Accordingly, the district court erred by interpreting these statutes to allow
BellSouth simply to pay compensation for its failure to acquire a valid easement.
      In support of its motion for summary judgment in the district court,
BellSouth raised the alternative argument that it had a prescriptive easement
whose use dates from at least 1996. After resolving the Section 77-9-715 issue
in BellSouth’s favor, the district court did not reach BellSouth’s other argument.
We do not either because the issue has not been briefed. BellSouth can decide
whether again to present that alternative argument on remand.
II. Damages
      The district court granted summary judgment denying Marlow’s claim for
compensatory damages. It quite logically held the constructive license concept
we have just discussed also barred the need for additional compensation to
Marlow beyond what was paid the prior owners in 2002. Because we have
rejected the use of Section 77-9-715 to provide a license to BellSouth, that
statute also is not a basis for denying damages.
      The district court also denied damages based on Mississippi’s prior
trespass doctrine.    Under that doctrine, a purchaser of land is generally

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                                  No. 11-60394
precluded from recovering for trespasses or property damage that occurred prior
to the land’s purchase unless such right to recovery has been explicitly assigned
by the seller. Flowers v. McCraw, 792 So. 2d 339, 342 (Miss. Ct. App. 2001). It
is undisputed that Marlow did not receive from the sellers an assignment of a
claim for trespass. The doctrine’s rationale is that “the price paid by the
purchaser should reflect the [trespassed or damaged] condition of the property
at the time of the purchase and [thus] no harm to the purchaser by the prior
trespass would have occurred.” Id. In these cases, the damages caused by the
trespasser diminished the value of the property. Generally, though, the trespass
itself has ended.
      The McCraw case was similar to several that use this doctrine in that it
was a suit for damages for the improper cutting of timber. Id. at 341. The
timber was gone and so were the timber cutters. BellSouth presents a precedent
that it argues is more analogous to the facts here.        That suit involved a
purchaser’s challenge to the prior construction of a seawall across his
predecessor’s land. Henritzy v. Harrison Cnty., 178 So. 322 (Miss. 1938). The
defendant county’s seawall remained on the plaintiff’s land just as BellSouth’s
fixtures remain here. A statute allowed the county to publish notice describing
land it wished to take along the shoreline for building the seawall; the owners
had 30 days to file a claim with the county. Id. at 323. The landowner at the
time of the condemnation and construction did not file for compensation. Id. at
323-24. Ten years later, the land was sold and the new owner built a structure
that interfered with the rights of the county. Id. at 324. The bulk of the court’s
analysis concerned whether the statute allowing condemnation in this way was
constitutional. It was. Id. at 324-26. The court also held that the prior trespass
doctrine prevented the subsequent owner from bringing the claims the prior
landowner might have had for compensation. Id. at 326.



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                                  No. 11-60394
      One distinction between those facts and ours is that the court upheld the
propriety of the taking under the unusual state statute. The county had the
right to possess the property and there was no continuing trespass. The right
to compensation was a temporary one that the prior owner allowed to lapse.
Further, even if the prior owner had a claim, it had not been assigned to the
plaintiff. Conversely, we have held that BellSouth did not gain the right to
maintain its lines and fixtures on this property under Section 77-9-715.
      We start at a different point than did the district court. It rejected
damages after finding BellSouth had the right to maintain its lines and other
fixtures. We conclude that BellSouth’s rights have not yet been shown. If
BellSouth is found to be a trespasser, what damages are owed? According to the
district court, Marlow “has never sought any damages for any trespass prior to
its ownership of the property in 2006.” As to possible damages after 2006,
Marlow is not entitled to damages for a hidden burden on the property at the
time of purchase because we agree with the district court that Marlow was on
notice of the presence of the telephone lines. Those lines could have factored into
Marlow’s decision on what it was willing to pay for the property. If they did not,
that failure is not something about which Marlow can now complain.
      We agree, then, that damages are not owed for diminished value of the
property at the time of purchase. We also conclude that the prior trespass
doctrine is not a relevant principle in deciding what damages would be owed if
BellSouth is a continuing trespasser with fixtures on Marlow’s property for
which it has no right of possession. We leave the appropriate elements of
damages for the district court to determine in further proceedings should
BellSouth not succeed on its alternative argument for an easement.
      We reverse the dismissal of Marlow’s claim for compensatory damages.




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                                 No. 11-60394
III. Slander of Title
      Finally, the district court granted summary judgment against Marlow’s
claims for slander of title and punitive damages.       “One who falsely and
maliciously publishes matter which brings in question or disparages the title to
property, thereby causing special damage to the owner, may be held liable in a
civil action for damages.” Walley v. Hunt, 54 So. 2d 393, 396 (Miss. 1951). The
basis for Marlow’s claims is that in 2010, upon learning of its defective
easements, and after Marlow filed suit in state court, BellSouth obtained Helen
Burkett’s signature on two additional easements in an attempt to memorialize
her intentions regarding the 2002 easements and improve its equitable position.
The 2010 easements contained a false statement warranting that Helen Burkett
was the true owner of record of the subject property (when, in fact, she had not
owned it since 2006). BellSouth acknowledges the falsity of this statement,
maintaining it was a mistake and resulted from a failure to remove form
language. In granting summary judgment, the district court found there was
“absolutely no evidence from which to infer that BellSouth acted with malice in
obtaining the 2010 [e]asements, rather than in good faith and in reliance on the
advice of counsel.” We agree.
      Although Marlow has shown at least one false statement in the 2010
easements, namely, that Helen Burkett presently owned the subject property,
it has failed to present any evidence supporting an inference that any false
statements resulted from BellSouth’s acting with malice. Rather, the execution
of the 2010 easements is entirely consistent with BellSouth’s strategy, prompted
by advice of counsel, to improve its equitable position in the dispute over the
validity of its easements by showing the omission of Helen Burkett’s signature
on the 2002 easements was inadvertent. Indeed, the 2010 easements state:
“This easement is to correct the inadvertent omission of the Grantor, Helen L.
Burkett, on the original easement recorded . . . in the Forrest County Land

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  Case: 11-60394   Document: 00511902147    Page: 16   Date Filed: 06/27/2012



                                No. 11-60394
Records. Grantor certifies that it was her intention to sign the easement her
husband previously signed in February 2002 in favor of BellSouth on this same
property for the same purpose.” The wisdom of BellSouth’s strategy can be
debated, but the strategy cannot be described as malicious.
      Summary judgment against Marlow’s claims for slander of title and
punitive damages was appropriate.
      The judgment of the district court is REVERSED in part, AFFIRMED in
part, and REMANDED for further proceedings consistent with this opinion.




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