                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CA-00102-SCT

LEROY CALVERT, JR.

v.

BRIAN D. GRIGGS AND TANYA N. GRIGGS


DATE OF JUDGMENT:                         12/18/2006
TRIAL JUDGE:                              HON. KENNETH M. BURNS
COURT FROM WHICH APPEALED:                CLAY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   GARY STREET GOODWIN
ATTORNEYS FOR APPELLEES:                  MICHELLE D. EASTERLING
                                          THOMAS B. STOREY, JR.
NATURE OF THE CASE:                       CIVIL - REAL PROPERTY
DISPOSITION:                              REVERSED AND REMANDED - 10/16/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This case involves a dispute between Bryan D. and Tanya N. Griggs and Leroy

Calvert, Jr., over an easement which crosses the Griggses’ property, which is Calvert’s only

means of access to a public road. The Griggses constructed a fence along this easement and

planned eventually to install gates at each end. After Calvert destroyed portions of their

fence, the Griggses filed suit seeking declaratory and injunctive relief. Calvert asserted a

counterclaim to enjoin the Griggses from constructing a fence and to require them to remove

any existing fencing as well as other improvements. The chancery court granted summary
judgment to the Griggses. The court found that the Griggses could erect fences and gates,

so long as Calvert was given keys to any locks. Calvert was enjoined from any further

interference, and was assessed $11,396 in damages. Because we find genuine issues of

material fact exist concerning the reasonableness and necessity of the Griggses’ fence and

gates, we reverse and remand.

                                          FACTS

¶2.    Leroy Calvert bought a residential parcel of property with no frontage near Hamlin

Road in West Point, Mississippi. His deed contained an express easement, forty feet wide,

which ran from his property, across the property of Bryan and Tanya Griggs, to Hamlin

Road.1 The Griggses’ deed contained an express easement, as well.2

¶3.    After his purchase, Calvert began building a house on the property. During this time,

the Griggses began constructing a barbed-wire fence around their property. This fence ran

the length of the easement and, according to Calvert, crossed it and “blocked” access to his

house. The Griggses left a gap in the fence so that he could access his property. On two

occasions, the fence prevented a “big truck” from accessing his property during the

       1
         The record includes no map of the land or easement. It appears that Hamlin Road
runs north and south, and the Griggses’ property is on the western side of the road. Calvert’s
property is separated from Hamlin road by two properties, one of which is the Griggses’
property. The Griggses’ property is burdened with an easement that gives Calvert access to
the road. Other than this easement, Calvert’s property is landlocked.
       2
          Unfortunately, the deeds do not appear in the record. Calvert includes them in his
record excerpts, but there are no corresponding documents in the record itself. The same is
true of letters written by the descendants of the grantor of the easement. These documents
were the subject of a motion to supplement the record filed by Calvert, which was denied
without prejudice for failure to attach certified copies of the proposed records. The
Griggses’ complaint, however, includes a description of their property along with the
easement. This language appears to have been taken directly from the Griggses’ deed.

                                              2
construction of his home. Aside from these two occasions, Calvert maintained access to his

property via the easement.

¶4.    The Griggses also intended to install gates at both ends of the easement, one at Hamlin

Road and one at the boundary of Calvert’s property. Calvert would be given keys to these

gates. Calvert saw this as an attempt to “box” or “block in” the easement, and interfere with

his right of passage.

¶5.    After the Griggses erected the fence, Calvert cut the barbed wire and removed some

of the fence posts along the easement. When the Griggses replaced the fencing, Calvert

damaged it as well. Prior to the commencement of this action, no gates had been erected.

¶6.    On April 15, 2005, the Griggses filed a complaint for injunctive relief, damages, and

a declaratory judgment. They sought (1) to enjoin Calvert from destroying the fence they

had erected along their property line and his general easement, (2) to recover damages for

Calvert’s destruction of the fence, and (3) declaratory relief as to each parties’ rights

concerning the easement.      Calvert filed a counterclaim to enjoin the Griggses from

constructing the fence across his easement and to have them remove a gazebo and shrubbery

which allegedly interfered with his use of the easement. The Griggses filed a motion for

summary judgment.

¶7.    Following a hearing, the chancellor granted summary judgment to the Griggses. The

chancellor awarded $11,396.23 in damages to the Griggses and issued a declaratory

judgment granting the Griggses permission to erect fences and gates at either end of the

easement, conditioned on their furnishing Calvert with keys to any locks. The chancellor

enjoined Calvert (1) to keep the gates closed and locked except when he accessed his


                                              3
property, (2) to keep vehicles or equipment from parking on the easement, and (3) to

maintain the surface road on the easement. Several months later, the Griggses filed a second

motion for summary judgment on Calvert’s counterclaim, and moved for final judgment

under Rule 54 of the Mississippi Rules of Civil Procedure. The chancellor granted the

Griggses’ second motion for summary judgment, and dismissed Calvert’s counterclaim.

¶8.    Calvert now appeals, raising one assignment of error: whether the chancellor erred in

awarding summary judgment to the Griggses. The Griggses, however, contend that Calvert’s

appeal is untimely.

                                       DISCUSSION

I.     Whether Calvert’s appeal is untimely.

¶9.    A timely-filed notice of appeal is a jurisdictional prerequisite to invoking this Court’s

review, and we review jurisdictional matters de novo. Busby v. Anderson, 978 So. 2d 637,

638-39 (Miss. 2008) (citing Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 929

(Miss. 2006)); RAS Family Partners, LP v. Onman Biloxi, LLC, 968 So. 2d 926 (Miss.

2007)). The Griggses argue that Calvert’s appeal from the summary judgment order entered

on June 21, 2006, is untimely. We find this issue to be without merit.

¶10.   An appeal to this Court may be taken as a matter of right only after the trial court

disposes of all the claims against all defendants. Miss. R. Civ. P. 54(b); Briscoe’s Foodland,

Inc. v. Capital Associates, Inc., 502 So. 2d 619, 622 (Miss. 1986). “Absent certification

under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears

to adjudicate a separable portion of the controversy, is interlocutory.” Miss. R. Civ. P. 54

cmt. At the hearing on the Griggses’ first motion for summary judgment, the chancellor

                                               4
reserved ruling on the counterclaim. After the chancellor granted the Griggses’ first motion

for summary judgment, they filed a second motion for summary judgment on Calvert’s

counterclaim and sought certification of a final judgment. The chancellor’s December 18,

2006, order subsequently disposed of Calvert’s counterclaim. Notably, the December 18

order also stated that “[t]he [s]ummary [j]udgment of this court dated June 21, 2006, is

hereby made the final judgment of this court under Rule 54 MRCP . . . .” When a trial court

certifies a claim for appeal under Rule 54(b), the time for taking the appeal begins to run on

the date of certification. 10 C. Wright, A. Miller & M. Kane, Federal Practice and

Procedure § 2661, at 128 (2d ed. 1983). Therefore, we find that the chancellor’s December

18 order constituted the final, appealable judgment. Because Calvert’s appeal was filed

within thirty days of this December 18 order, we find his appeal to be timely.

II.    Whether the chancellor erred in awarding summary judgment to the
       Griggses.

¶11.   This Court reviews a trial court’s grant of summary judgment de novo. Callicutt v.

Prof’l Servs. of Potts Camp, Inc., 974 So. 2d 216, 219 (Miss. 2007). In evaluating a grant

of summary judgment, we consider all evidentiary matters, including admissions in

pleadings, answers to interrogatories, depositions, admissions, and affidavits. Glover v.

Jackson State University, 968 So. 2d 1267, 1275 (Miss. 2007) (citing Miss. R. Civ. P. 56

(c)). This evidence must be viewed in the light most favorable to the non-moving party.

Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004) (quoting Palmer v. Anderson

Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)). The existence of a genuine

issue of material fact will preclude summary judgment. Massey v. Tingle, 867 So. 2d 235,



                                              5
238 (Miss. 2004). A fact is material if it “tends to resolve any of the issues properly raised

by the parties.” Simpson, 880 So. 2d at 1050 (quoting Palmer, 656 So. 2d at 794). The

motion “should be overruled unless the trial court finds, beyond a reasonable doubt, that the

plaintiff would be unable to prove any facts to support his claim.” Simpson, 880 So. 2d at

1050 (quoting Palmer, 656 So. 2d at 796).

¶12.   Calvert argues that there are genuine issues of material fact concerning the intention

of the parties who created the easement, as well as the reasonableness of the Griggses fence

and any future improvements. He further submits that the chancellor failed to apply the

correct legal standard in awarding summary judgment to the Griggses.

¶13.   Where an easement is silent, we consider the surrounding circumstances to determine

the intent of the grantor and grantee. Rowell v. Turnage, 618 So. 2d 81, 86 (Miss. 1993).

Unless the creators’ intent indicates otherwise, the owner of a servient estate “may erect gates

or bars across a way provided they are so located, constructed, and maintained as not

unreasonably to interfere with the right of passage and they are necessary for the preservation

and use of the servient estate.” Rowell, 618 So. 2d at 86 (quoting 28 C.J.S. Easement § 98

at 781 (1941)).

¶14.   This case is somewhat unique because the Griggses sought a declaratory judgment as

to their rights with respect to the easement, and more specifically whether they could erect

a fence and gates. Cf. Rowell, 618 So. 2d at 82, 87 (The dominant landowner sought

injunction to prohibit servient landowner from interfering with his enjoyment and use of

easement. The burden was on dominant estate holder to show that the servient estate owner’s

gates unreasonably interfered with his use of the easement.). By filing for a declaratory

                                               6
judgment and an injunction, the Griggses assumed the burden of proof. Thus, the Griggses

must prove either that: (1) the original executors intended to allow the servient estate to erect

gates and fences around or alongside the easement; or (2) the original executors intent is

undeterminable, but the erection of the fence or gates does not unreasonably interfere with

Calvert’s right of passage and is necessary for the preservation and use of the Griggses’

property. See Rowell, 618 So. 2d at 87 (quoting 28 C.J.S. Easement § 98 at 781 (1941)).

       A.     The original intent of the grantor and grantee.

¶15.   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.” Rowell, 618 So. 2d at 86 (quoting 25 Am. Jur. 2d Easements

§ 91 (1966)). Where there is any doubt or ambiguity concerning the intention of the parties

to the creation of an easement, the language granting the easement will be construed against

the grantor. Boggs v. Eaton, 379 So. 2d 520, 522 (Miss. 1980); Ouber v. Campbell, 202 So.

2d 638, 641 (Miss. 1967).

¶16.   The record is almost completely silent with respect to the grantor and grantee’s intent

concerning fencing or gates. The easement itself describes only metes and bounds. The little

evidence concerning the parties’ intent deals with the status of the two estates at the time the

easement was created and the prior use of the easement. At the time of its creation, the

easement was unencumbered by any fence or gates. It is also unclear whether any surface

road existed at that time. It appears there was no residence on Calvert’s land prior to his

decision to build a home there.




                                               7
¶17.     We find that the Griggses failed to meet their burden of proving that the original

creators intended to allow the servient estate to erect fencing and gates on or alongside the

easement. Yet, because we cannot determine that the creators sought to preclude such

actions, we must further consider whether the Griggses established that the fencing and/or

gates did not unreasonably interfere with Calvert’s right of passage, and are necessary for the

preservation and use of their property. See Rowell, 618 So. 2d at 86 (quoting 28 C.J.S.

Easement § 98 at 781 (1941)).

         B.     Whether the fencing and/or gates unreasonably interfere with Calvert’s
                right of passage and are necessary for the preservation and use of the
                Griggses’ property.

¶18.     Calvert submits that the Griggses’ improvements unreasonably interfere with his right

of passage. On two occasions, the fence blocked a “big truck” from accessing his property

during the construction of his home. Additionally, if gates are installed, Calvert asserts that

he would be required to (1) enter his driveway; (2) exit his vehicle and open the first gate;

(3) return to his vehicle and drive through this gate; (4) exit his vehicle once again and close

the gate; and (5) return to his vehicle, drive to the second gate, and start the process all over

again.

¶19.     We have held that a locked gate does not unreasonably interfere with the right of

passage to an easement. Rowell, 618 So. 2d at 86; see also Lindsey v. Shaw, 210 Miss. 333,

337-38, 49 So. 2d 580, 583 (1950); Bd. of Trustees of Univ. of Miss. v. Gotten, 119 Miss.

246, 80 So. 522 (1919).       In Gotten, the plaintiff sought to enjoin the University of

Mississippi from erecting a gate across the only road that afforded him ingress and egress to

his property. Gotten, 119 Miss. at 253. This Court affirmed the right of the university to

                                               8
maintain the gate. Id. at 256. The Court cited approvingly the following language from

Kohler v. Smith, 3 Pa. Super. 176, 180 (1896):

       In the case before us there was no evidence that the gate, erected by the
       defendant was a practical hindrance, nor that it was, under the circumstances,
       an unreasonable obstruction to the plaintiff's use of the right of way across the
       defendant's uninclosed field. There is some evidence on the part of the plaintiff
       that it was an inconvenience to open the gate, but his explanation shows that
       it was only the usual and necessary inconvenience which was caused by
       descending from his wagon, opening the gate, driving through it, and closing
       it again. This we think, under all the authorities, cannot be considered in any
       sense as an unreasonable obstruction nor a hindrance to the free use of the
       way by the owner of the easement. The court below was therefore correct in
       that part of the charge to the jury which is complained of; and, as this is the
       only assignment of error, the judgment is affirmed.

Gotten, 119 Miss. at 255-56 (quoting Kohler, 3 Pa. Super. at 180) (emphasis added).

¶20.   Based on the totality of the circumstances, we find the case before us distinguishable.

Calvert would be required to proceed through not just one, but two gates, in order to access

his own residence. Reasonable persons could differ as to whether this constitutes an

unreasonable interference with a homeowner’s right of passage, and therefore, this question

is best left to the trier of fact. Rowell, in which we affirmed a chancellor’s ruling that three

gates did not impose an unreasonable restriction, is also distinguishable. Rowell, 618 So. 2d

at 82, 86-87. In Rowell, the dominant owner purchased the property with knowledge of the

servient owner’s existing gates and cattle operation. Id. at 84.

¶21.   We further find a genuine issue of material fact exists as to whether the fencing and

gates are necessary for the preservation and use of the Griggses’ property. The Griggses

have a horse and have indicated that the fence was necessary to keep neighbors’ cattle from

roaming onto their property. Yet the timing and circumstances surrounding the Griggses’



                                               9
improvements raise some questions. The Griggses did not erect the fence until almost four

years after their purchase of the servient estate, and right at the time Calvert began building

his home. Even then, no gates were were installed. Considering these circumstances and the

vagueness of the notion of roaming cattle, we find that this issue merits further development.

¶22.   Because we find that genuine issues of material fact remain, we find that the trial court

erred in its award of declaratory relief on summary judgment.

                                       CONCLUSION

¶23.   We find that genuine issues of material fact exist as to whether the fencing and/or

gates unreasonably interfere with Calvert’s right of passage, and whether such obstructions

are necessary for the use and preservation of the Griggses’ estate. Because the damages and

injunction against Calvert are inextricably dependent upon the parties’ respective legal rights,

we reverse and remand this matter for a trial on the merits.

¶24.   REVERSED AND REMANDED.

      SMITH, C.J., DIAZ, P.J., CARLSON, GRAVES, DICKINSON AND LAMAR,
JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY SMITH, C.J., WALLER, P.J., CARLSON AND
DICKINSON, JJ. EASLEY, J., NOT PARTICIPATING.


       RANDOLPH, JUSTICE, SPECIALLY CONCURRING:

¶25.   I concur with the analysis of the majority and write separately only to further address

Issue II.(B.), namely, “[w]hether the fencing and/or gates unreasonably interfere with

Calvert’s right of passage . . . .” (Majority Opinion at paragraph 18).

¶26.   I agree with the majority that in the case sub judice, “[r]easonable persons could differ

as to whether this constitutes an unreasonable interference with a homeowner’s right of

                                              10
passage, and therefore, this question is best left to the trier of fact.” (Majority Opinion at

paragraph 20). The majority notes that the 1919 Gotten case cited language from the 1896

Kohler case which stated, in part, that:

       [t]here is some evidence on the part of the plaintiff that it was an
       inconvenience to open the gate, but his explanation shows that it was only the
       usual and necessary inconvenience which was caused by descending from his
       wagon, opening the gate, driving through it, and closing it again.

Bd. of Trustees of Univ. of Miss. v. Gotten, 119 Miss. 246, 255, 80 So. 522 (1919) (quoting

Kohler v. Smith, 3 Pa. Super. 176, 180 (1896)) (emphasis added). The language in Kohler

reflects how times have changed, and accordingly the legal concept of unreasonable

interference must evolve therewith. The days of horses and wagons have long since passed.

What was not an “unreasonable interference” in 1896 might be so deemed today.

¶27.   As pertinently stated by Benjamin Cardozo, “[p]recedents drawn from the days of

travel by stage coach do not fit the conditions of travel to-day. The principle . . . does not

change, but the things subject to the principle do change. They are whatever the needs of life

in a developing civilization requires them to be.” MacPherson v. Buick Motor Co., 217

N.Y. 382, 111 N.E. 1050, 1053 (1916). See also Roscoe Pound, Interpretation of Legal

History 1 (1923) (in evaluating developments in society, courts “must seek principles of

change no less than principles of stability.”). In 1896, there were no meter readers for

electricity, 3 and no electric pumps to furnish water. Moreover, package deliveries, repairs,




       3
      In Clay County, the 4-County Electric Power Association, through a grant from the
Works Project Administration, “became a distributor of TVA power and, on July 25, 1939,
power was available to energize 700 miles of line to serve 1,224 consumer/members.” 4-
County Electric Power Association, http://www.4county.org (last visited Sept. 18, 2008).

                                             11
and yard maintenance when no one was home were infrequent or non-existent. Therefore,

the presence of locked gates, with keys solely provided to a homeowner,4 may today be

insufficient, and a locked gate may constitute unreasonable interference, depending on the

circumstances.

¶28.   On remand, the chancellor should apply the unreasonable interference principle to

“whatever the needs of life in a developing civilization require them to be.” MacPherson,

111 N.E. at 1053. In determining the necessity of a gate and how all parties may be

accommodated, the chancellor should take into account available technological advances and

modern conveniences.

     SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., JOIN THIS
OPINION.




       4
           Many of whom work at least several miles from home.

                                            12
