MCHARD MCHARD ANDERSON ASSOCIATES PLLC v. ROBERTSON (2025)

¶1. McHard, McHard, Anderson & Associates PLLC (McHard) appeals from the judgment of the Jones County Special Court of Eminent Domain denying its petition to establish a private road across lands owned by Jennifer Campbell Robertson and Joe Michael Robertson (the Robertsons).¹

¶2. After our review, we find that McHard failed to meet its burden to prove that its proposed road was necessary. We therefore affirm the trial court's judgment denying McHard's petition.

FACTS

¶3. This case involves a suit for a private road to landlocked tracts of land owned by McHard (McHard Property).

¶4. In March 2021, McHard filed a petition with the County Court of the Jones County in the Special Court of Eminent Domain (“trial court”) requesting a “private road” across the Robertsons’ property (Robertson Property) pursuant to Mississippi Code Annotated section 65-7-201 (Rev. 2021). In the petition, McHard set forth that it owned real property in Jones County that was landlocked with respect to other lands owned by other persons and did not adjoin any publicly maintained right-of-way. McHard explained that Jordan Road, a fifty-foot-wide public roadway, did not extend a few feet across the Robertson Property to provide access to the McHard Property. McHard asserted that a private road across the Robertson Property was necessary for ingress and egress to its landlocked property.

¶5. The Robertsons filed their answer to the petition and opposed McHard's request for a private road across their property.

¶6. After a trial on the matter, the trial court entered its judgment on January 26, 2023, denying McHard's petition. The trial court found that McHard failed to meet the requirements of section 65-7-201; specifically, the trial court found that McHard had “failed to establish good and marketable title to the property it purports to own[,]” “failed to join all necessary parties to the eminent domain action[,]” “failed to demonstrate that an easement by eminent domain was necessary[,]” and failed to prove that the “proposed easement was reasonable.”

¶7. In addition to a motion for attorney's fees, after the trial court entered its judgment, the Robertsons filed several post-trial motions. McHard filed a motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e), arguing that the trial court's judgment “was a clear error of law and creates manifest injustice.” The trial court ultimately denied McHard's motion to alter or amend the judgment, granted the Robertsons’ motion for attorney's fees, and certified the judgment as final.

¶8. McHard now appeals.

STANDARD OF REVIEW

¶9. When reviewing decisions of a special court of eminent domain, “[w]e review questions of law de novo, and we will not overturn findings of fact where they are supported by substantial evidence in the record unless there was abuse of discretion by the trial judge or the findings were manifestly wrong or clearly erroneous.” Morley v. Jackson Redevelopment Auth., 874 So. 2d 973, 975 (¶11) (Miss. 2004) (citations omitted).

¶10. A party moving to alter or amend a judgment pursuant to Mississippi Rule of Civil Procedure 59(e) “must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004). We review a trial court's denial of a Rule 59 motion for an abuse of discretion. Id.

DISCUSSION

¶11. On appeal, McHard argues that the trial court erred by failing to grant its petition to establish a private road pursuant to section 65-7-201. McHard maintains that its petition complied with the requirements set forth in section 65-7-201, as articulated by the Mississippi Supreme Court in Mississippi Sand Solutions LLC v. Otis, 312 So. 3d 349 (Miss. 2020). McHard submits that the trial court failed to follow the supreme court's guidance in Otis and improperly engrafted additional requirements for compliance with section 65-7-201. McHard therefore argues that the trial court's “interpretation of [section 65-7-201] is unconstitutionally vague.” McHard further asserts that the trial court's judgment amounted to a collateral attack on orders entered by the Jones County Chancery Court. See infra ¶¶31-32.

¶12. We first turn to examine the requirements for compliance with section 65-7-201 and determine whether the trial court improperly imposed additional requirements.

I. Requirements for Compliance with Section 65-7-201

¶13. Section 65-7-201 provides a statutory remedy for a landlocked landowner to acquire a private road over the land of another for purposes of ingress and egress. Section 65-7-201 states:

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 [s]ection 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.

¶14. In Otis, the supreme court held that “to successfully invoke this statute, [a party] must do two things: (1) establish that this course of action is necessary for it to access its land and (2) convince the special court of eminent domain that the proposed plan is reasonable.” Id. at 353-54 (¶6). Although only two steps for successfully invoking section 65-7-201 are outlined, the supreme court's analysis in Otis—and our relevant caselaw—reflect that these steps are multifaceted.

A. “Establish that this course of action is necessary for [the petitioner] to access its land.”

¶15. The petitioner's burden of proving that the proposed private road is necessary is twofold: “To show necessity, our law requires both a showing that the property has no access to the public road and that the party seeking the private road has attempted to secure a right of way by contract or grant.” Ward v. Trimac Invs. LLC, 78 So. 3d 341, 344 (¶6) (Miss. Ct. App. 2011) (citing Rotenberry v. Renfro, 214 So. 2d 275, 278 (Miss. 1968)).

¶16. First, a petitioner must establish that it “does not have access to its property[,]” and therefore a private road is necessary for ingress and egress to the land-locked parcel. Otis, 312 So. 3d at 354 (¶8); Ward, 78 So. 3d at 344 (¶4). “The showing required is only that the right of way is ‘reasonably necessary,’ as opposed to absolutely necessary.” Ward, 78 So. 3d at 344 (¶5) (citing Quinn v. Holly, 244 Miss. 808, 813, 146 So. 2d 357, 359 (1962)). The supreme court has further clarified that “this requirement does not mean that the proposed road and route are the only possible route, ․ but the petitioner must demonstrate that a right-of-way is a real, actual necessity, not a ‘mere convenience.’ ” Otis, 312 So. 3d at 354 (¶8).

¶17. Second, the petitioner must “show that it has attempted to obtain access through its own private efforts before petitioning the special court to redistribute private property.” Id. at (¶9). In support of this requirement, the Otis court cited to Rotenberry, 214 So. 2d at 278, where the supreme court stated that “the landlocked landowner must allege and show that he has been unable to obtain a reasonable right-of-way from all of the surrounding property owners.”

¶18. After a petitioner has established a lack of access to its property and that its neighbors will not negotiate, the petitioner can utilize section 65-7-201 and file a petition claiming that a private road is necessary. Otis, 312 So. 3d at 354 (¶10).

B.“[C]onvince the special court of eminent domain that the proposed plan is reasonable.”

¶19. In Otis, the supreme court explained that “if necessity has been established, the petitioner must still satisfy the special court that the proposed right-of-way is reasonable.” Id.; accord Miss. Code Ann. § 65-7-201; see also McDonald v. King, 60 So. 3d 217, 220 (¶7) (Miss. Ct. App. 2011) (“The statutory language instructs the Special Court of Eminent Domain to determine the reasonableness of the petitioner's application for a private road.”). This requires the petitioner “to show there was no other reasonable access to the property other than going through [its neighbor's] property.” May v. Adirondack Timber I LLC, 129 So. 3d 219, 222 (¶14) (Miss. Ct. App. 2013) (affirming the judgment granting a private road after finding that the special eminent domain judge “properly applied section 65-7-201 and supported his finding of reasonable necessity with substantial evidence from the record”). Having explained the law's requirements, we now address the issues in this appeal.

II. Whether the trial court improperly imposed additional requirements for compliance with section 65-7-201.

¶20. McHard claims that in addition to the requirements already set forth in section 65-7-201, the trial court improperly engrafted the following requirements: a petitioner seeking to establish an easement by eminent domain is required to demonstrate good and marketable title to its property; a petitioner must name and join as parties all the owners of the affected property; and a showing of necessity requires a petitioner to attempt to secure a right-of-way by contract or grant from all adjacent owners, including tendering a written offer to the adjacent owner, and testify as to the cost or expense of an easement and building a road over adjacent properties. We will address each of these alleged “additional requirements” in turn.

A. Ownership of Landlocked Property

¶21. The judgment on appeal reflects that the trial court denied McHard's petition for a private road based, in part, on its finding that McHard “failed to establish good and marketable title to the property it purports to own.” McHard argues that neither section 65-7-201 nor the supreme court's opinion in Otis requires a petitioner seeking to establish a private road to demonstrate good and marketable title to its property. We agree that the statute and caselaw do not require a petitioner to demonstrate good and marketable title to the landlocked property, and therefore the trial court erred in this finding. Nonetheless, the petitioner must have ownership of the landlocked property it seeks to access when proceeding under section 65-7-201. We base this finding on our review of relevant caselaw, which includes the legislative history of section 65-7-201.

¶22. In Warwick v. Pearl River Valley Water Supply District, 246 So. 2d 525, 528 (Miss. 1971), the supreme court explained that by enacting a statutory remedy for a landlocked landowner to acquire a private road over the land of another for purposes of ingress and egress, the Legislature acknowledged “that an owner is entitled to the full enjoyment of his property where feasible, especially if the enjoyment of the right would make useful and valuable that which otherwise would be useless and valueless.” The supreme court held that a “property owner is entitled as a matter of right and public policy to its full enjoyment and that the state will lend its arm to establish by implication of law a right of ingress and egress where none exists in order to accomplish this purpose.” Id. at 529. Additionally, our appellate courts have consistently interpreted section 65-7-201 as requiring the petitioner to own the landlocked property to which it seeks access. See Otis, 312 So. 3d at 354 (¶8) (“Step one requires a petitioner seeking to condemn property to establish that it does not have access to its property.” (emphasis added)); Rotenberry, 214 So. 2d at 278 (“[T]he landlocked landowner must allege and show that he has been unable to obtain a reasonable right-of-way from all of the surrounding property owners.” (emphasis added)); Ward, 78 So. 3d at 347 (¶17) (“Again, the burden falls on [the property owner] to prove that its property is landlocked; it must show that it has no right-of-way and cannot obtain one from the other property owners.” (emphasis added)); Ganier v. Mansour, 766 So. 2d 3, 7 (¶14) (Miss. Ct. App. 2000) (Section 65-7-201 “allows the owner of land-locked land to petition the board of supervisors if he desires to have a private road laid out through someone else's land when necessary for ingress and egress.” (emphasis added)).

¶23. We therefore conclude that a petitioner seeking a private road pursuant to section 65-7-201 must own the landlocked property.

B. Joinder of Necessary Parties

¶24. The trial court also held that McHard “failed to join all necessary parties to the eminent domain action.” We will discuss the merits of the trial court's ruling on this matter below; however, as a procedural matter, we clarify that section 65-7-201 only requires that the petitioner join as a party the owner of the property that the petitioner seeks to condemn: “The owner of the property shall be a necessary party to the proceedings.”

C. Requirements for Necessity

¶25. Finally, McHard argues that the trial court improperly found that McHard was required to take the following actions to show that the proposed private road was necessary: attempt to secure a right-of-way by contract or grant from all adjacent owners, testify as to the cost or expense of an easement and building a road over adjacent properties, and tender a written offer to the landowner of the property subject to the easement.

¶26. As stated above, the petitioner's requirement to prove that the proposed private road is necessary is twofold: “To show necessity, our law requires both a showing that the property has no access to the public road and that the party seeking the private road has attempted to secure a right of way by contract or grant.” Ward, 78 So. 3d at 344 (¶6) (citing Rotenberry, 214 So. 2d at 278). The supreme court has clarified that “the landlocked landowner must allege and show that he has been unable to obtain a reasonable right-of-way from all of the surrounding property owners.” Rotenberry, 214 So. 2d at 278. This includes “show[ing] that these potential alternatives were unreasonable, that is, that they involve disproportionate expense and inconvenience.” Ward, 78 So. 3d at 345 (¶10) (quoting Evanna Plantation Inc. v. Thomas, 999 So. 2d 442, 446 (¶12) (Miss. Ct. App. 2009); see also McDonald, 60 So. 3d at 219 (¶4) (affirming that petitioner did not prove its proposed right-of-way was reasonable, reasoning petitioner failed “to provide any monetary figures regarding the cost of building an alternate road to access their property”). Accordingly, we find that the trial court correctly stated that a petitioner seeking a private road across the property of another must show that it has attempted to secure a reasonable right-of-way from all adjacent owners, and in showing that these alternate routes were not reasonable, the petitioner must offer proof as to the cost or expense of these potential alternate routes.

¶27. Additionally, while the statute and relevant caselaw do not expressly require that a petitioner tender a written offer to the surrounding property owners in an attempt to secure a private road, we recognize that a petitioner must provide some proof to show that he has met the necessity requirement.

¶28. Based on our findings above, the trial court did not improperly impose any additional requirements on McHard for proving necessity under section 65-7-201. We also find no merit to McHard's assertion that the trial court's interpretation of section 65-7-201 is unconstitutionally vague.

III. Whether the trial court erred by finding McHard did not meet the requirements of section 65-7-201.

¶29. We now turn to review whether the trial court erred in finding that McHard failed to meet the requirements of section 65-7-201, as articulated above.

A. Ownership

¶30. In denying McHard's petition for a private road, the trial court determined that “not only does [McHard] not have good and marketable title [to the landlocked property], but perhaps no title at all.” (Emphasis added). As stated, a petitioner seeking a private road pursuant to section 65-7-201 must own the property that is landlocked.

¶31. In determining that McHard failed to show it possessed title to the landlocked property, the trial court explained that the property at issue was once owned by Elizabeth Moffett, who died intestate in 1917. The trial court acknowledged that “in the absence of a will, title of real property vests immediately in the heirs at law upon the owner's death.” (Citing Est. of Mace v. Gardner, 66 So. 3d 1265, 1268 n.1 (Miss. Ct. App. 2011)). The trial court found that in 2016, one of Moffett's heirs, Nathaniel Crump, initiated an action in the Jones County Chancery Court to acquire title to the property. Crump filed an affidavit, later determined to be fraudulent, asserting that he was the sole and only heir of Moffett. Based on the affidavit, the chancery court entered an order vesting title to the property in Crump and, upon Crump's request, transferred an undivided one-half interest to McHard. McHard subsequently received an administrator's deed to the property. The trial court found that the chancery court's “orders and instruments purporting to vest title were tainted by fraud, and therefore, they are void.”

¶32. The trial court acknowledged that in August 2020, the chancery court eventually entered a judgment finding that Crump's affidavit was fraudulent and setting aside the order vesting title to the property in Crump. However, the trial court found that the chancery court's judgment “contained some ambiguous language regarding exactly what tracts of land were impacted by the order.” The trial court determined that because the affidavit and process by publication were fraudulent as to Crump's interest in the property, the affidavit and process by publication were also fraudulent and, therefore, void as to McHard's interest in the property. The trial court ultimately held that “this fraudulent affidavit and void publication render any subsequent legal action regarding title to the property that derived from it null and void.”

¶33. On appeal, McHard argues that the trial court erred in finding that McHard “perhaps [has] no title at all” to the landlocked property. McHard submits that the chancery court had already determined the issue of title to the landlocked property, and the trial court is not permitted to make a collateral attack on a judgment that it did not render.

¶34. “Our supreme court has held that judgments generally are not subject to collateral attack.” Ray v. O'Possum Ridge Farms, 289 So. 3d 319, 324 (¶18) (Miss. Ct. App. 2019) (citing Reed v. Gen. Motors Acceptance Corp., 228 Miss. 121, 87 So. 2d 95, 96 (1956) (“Unless the judgment is void, it is not subject to collateral attack.”)). However, the supreme court has held that “when a special court of eminent domain has subject matter jurisdiction of a condemnation proceeding, it may exercise pendent jurisdiction over any questions of title which may arise in the proceedings.” Delta MK LLC v. Miss. Transp. Comm'n, 57 So. 3d 1284, 1291 (¶19) (Miss. 2011) (citing McDonald's Corp. v. Robinson Indus. Inc., 592 So. 2d 927, 936 (Miss. 1991)); see also McCarty v. Wood, 249 So. 3d 425, 433 (¶26) (Miss. Ct. App. 2018) (“[Q]uestions of title are logically antecedent to [a] condemnation claim. Before the court may condemn property or award just compensation for a taking, the court must resolve any unanswered questions of title.”). Because the Robertsons disputed that McHard actually owned the McHard Property, a question of title arose in the condemnation proceedings. As a result, the trial court in this case had jurisdiction to resolve the question of whether McHard had title to the McHard Property.

¶35. We therefore turn to determine whether the trial court erred in finding that McHard might not have title to the landlocked property. This analysis requires a review of the lengthy and complicated history of the property at issue.

¶36. The record before us shows that Elizabeth Moffett originally owned 160 acres of land in Jones County, including the property at issue. In 1917, Moffett died intestate. In 1965, the Mississippi State Highway Commission opened Moffett's estate for the purpose of substituting Moffett's estate as the defendant in an eminent domain proceeding. The Commission ultimately condemned approximately fourteen acres of Moffett's land for the purpose of constructing and maintaining an interstate. After the condemnation action, Moffett's estate consisted of approximately 148 acres.²

¶37. In 1971, the Jones County Chancery Court entered an order approving the first and final accounting, adjudicating Moffett's heirs, authorizing disbursement of funds, discharging the administrator, and closing the estate. In the order, the chancellor identified and adjudicated approximately seventy-seven heirs at law of Moffett. The chancellor ordered that Moffett's 148 acres of real property “descends ․ to [Moffett's] adjudicated heirs at law” and that “each heir has an undivided interest in and to said real property according to their pro-rata share in said estate.” The order set forth the following description of the real property:

W 1/2 of NE 1/4 and SE 1/4 of NE 1/4 and SE 1/4 of NW 1/4 of Section 26, Township 7 North, Range 13 West, less 13.99 acres to the highway department[.]

No administrator's deed conveying title of the 148 acres to Moffett's heirs was recorded.

¶38. In 1999, Moffet's estate was reopened for the purpose of pursuing a claim for damages resulting from timber cut on the Moffett property. The litigation resulted in this Court's opinion in Tolbert v. Southgate Timber, 943 So. 2d 90 (Miss. Ct. App. 2006). The opinion identified Elouise Gaines and Nathaniel Crump as two of Moffett's approximately seventy-two heirs. Id. at 92 (¶3). The 1971 order closing Moffett's estate further identified Elouise Gaines and Crump as brother and sister.

¶39. In July 2010, several of Moffett's heirs (Crump, Joe Gaines, Candace Gaines Ruffin, and Mary Elizabeth Gaines-Hall) filed a complaint to remove clouds on title and to confirm title to the 148 acres in themselves alone. The record reflects that Gaines, Ruffin, and Gaines-Hall are the children of Elouise Gaines, Crump's sister. The complaint alleged that Crump, Gaines, Ruffin, and Gaines-Hall had paid all taxes on the real property and that they had “ousted” the other heirs from the property. Crump, Gaines, Ruffin, and Gaines-Hall requested that the chancellor enter a judgment confirming title as to these four heirs. However, on May 1, 2014, the complaint was dismissed for lack of prosecution.

¶40. On February 9, 2016, Crump filed a complaint against the rest of Moffett's heirs for partition or, in the alternative, adverse possession of the 148 acres. Crump submitted an affidavit stating that he is Moffett's only known heir. Crump also submitted proof of publication to all known and unknown heirs of Moffett. The publication stated that Crump was the only known surviving heir of Moffett.

¶41. The chancery court appointed an administrator de bonis non for the Moffett estate. In October 2016, the chancery court entered an order adjudicating the heirs of Moffett's estate and finding that Crump was the sole heir.

¶42. On February 17, 2017, Crump filed a petition to waive the first and final accounting of the estate, to disburse assets, to close the estate, and to discharge the administrator. In the petition, Crump requested that all the Estate's assets be distributed to him as the sole heir. Crump also requested that the 148 acres of real property be distributed to him and McHard by administrator's deed.

¶43. On March 16, 2017, the chancery court entered an agreed order to waive the first and final accounting of the estate, disburse assets, close the estate, and discharge the administrator. The order specifically authorized the administrator of Moffett's estate to distribute the 148 acres of real property to Crump and McHard. On November 14, 2017, the administrator of Moffett's estate executed an administrator's deed conveying the 148 acres to Crump and McHard as tenants in common.

¶44. McHard then filed a motion to partition the land, which the chancellor granted. On March 12, 2019, the chancery court entered an order awarding McHard two partitioned sections of the 148 acres identified as Tract A and Tract C.

¶45. On September 18, 2019, Joe Gaines, Mary Elizabeth Gaines-Hall, and Joe Ruffin Sr. (“the additional Moffett heirs”) filed a petition to set aside the March 2017 agreed order, as well as the administrator's deed. The additional Moffett heirs’ petition listed Crump, McHard, and the administrator of the Estate as defendants. The petition alleged that Crump's affidavit stating that he is the only known heir of Moffett was fraudulent and that Crump was “well aware” of the additional Moffett heirs. (As stated above, two of the additional Moffett heirs—Joe Gaines and Mary Elizabeth Gaines-Hall—along with Crump and Joe Ruffin's mother, Candace, had filed a complaint in July 2010 seeking to confirm title to the 148 acres in themselves alone.)

¶46. McHard filed a counterclaim against the additional Moffett heirs, alleging quantum meruit and unjust enrichment. On March 2, 2020, the additional Moffett heirs filed a motion for summary judgment.

¶47. The record reflects that in May 2020, the additional Moffett heirs and McHard entered into a settlement agreement: the additional Moffett heirs agreed to dismiss with prejudice all their claims against McHard, and McHard agreed to dismiss with prejudice all its claims against the additional Moffett heirs. The additional Moffett heirs also agreed to execute a quitclaim deed to convey Tract A and Tract C of the 148 acres to McHard and to “assist and take reasonable action to provide [McHard] good and marketable title to Tract A and Tract C.” In May 2020, the additional Moffett heirs executed a quitclaim deed conveying Tract A and Tract C to McHard.

¶48. On August 4, 2020, the chancery court entered an agreed order dismissing with prejudice the additional Moffett heirs’ claims against McHard. The order reflects that the additional Moffett heirs “specifically and expressly release any and all claims to Tract A or Tract C” and “expressly affirm and agree with the ․ allocation and distribution” of Tracts A and C to McHard. The order directed McHard to deposit $20,402 into the registry of the chancery court and to file the quitclaim deed executed by the additional Moffett heirs conveying Tracts A and C to McHard.

¶49. On August 28, 2020, the chancery court entered an order granting summary judgment in favor of the additional Moffett heirs.³ The chancery court found that Crump's August 2016 affidavit of heirship was fraudulent, and the chancery court accordingly set aside the March 16, 2017 agreed order to disburse assets, close Moffett's estate, and discharge the administrator, as well as the November 14, 2017 administrator's deed. The chancery court ordered that the 148 acres of real property be restored to Moffett's estate, less and except Tract A and Tract C (the property deeded to McHard).

¶50. On September 17, 2020, McHard filed and recorded the quitclaim deed in the Jones County Chancery Court Clerk's Office. In March 2021, in preparation for litigation of the action currently before us, McHard retained real estate attorney Jerry Sharp to perform title work on the McHard Property. After performing a title search, Sharp issued a Certificate of Title confirming that McHard owned and had title to Tracts A and C. The record also reflects that since the chancellor's March 2019 order partitioning the Moffett property and awarding McHard title and ownership of Tracts A and C, McHard has consistently been assessed with and paid the property taxes for the land.

¶51. At trial in the present matter, the court heard testimony from Sharp and real estate attorney Mason Wood. Both attorneys performed a title search of the McHard Property and reviewed all the chancery court orders addressed above. Sharp testified that based on his review, McHard is the owner of Tracts A and C. Wood, however, opined that “the title to tracts A and C of the McHard property is not marketable and that the owners of that property are the heirs of Elizabeth Moffett[.]” Wood explained that if the additional Moffett heirs “are truly the heirs, then [McHard] would have a minority interest in the property” due to the large number of Moffett heirs set forth in the 1971 chancery court order and this Court's opinion in Tolbert.

¶52. After hearing testimony and reviewing the evidence, the trial court entered its January 26, 2023 order denying McHard's petition based, in part, on its finding that McHard failed to prove it owned the landlocked property. McHard filed a Rule 59(e) motion to alter or amend the judgment, arguing that the trial court's judgment was a collateral attack on the chancery court's August 2020 order excepting McHard's property from being restored to Moffett's estate. McHard also argued the trial court erred by finding that McHard failed to prove it owned the landlocked property.

¶53. In relation to its motion to alter or amend, McHard meanwhile petitioned the chancery court to clarify its August 2020 order to specifically provide that McHard's title to Tract A and C was not affected by the August 2020 order and remained vested in McHard “as specified and intended by the Settlement Agreement and Mutual Release reviewed and approved by [the chancery court].” The chancery court held a hearing on the motion, and McHard attached the transcript to its reply brief in support of the motion to alter or amend. The transcript reflects that the chancellor disagreed with the trial court's finding that the August 2020 order was “ambiguous” as to whether Tracts A and C were excepted from the order restoring the 148 acres of real property to Moffett's estate.⁴

¶54. The trial court ultimately denied McHard's motion to alter or amend.

¶55. After our review, we find that the record does not support the trial court's January 26, 2023 order finding that McHard failed to prove it possessed title to the landlocked property. The record is clear that four of the Moffett heirs—Crump and the three additional Moffett heirs—intended for McHard to own Tracts A and C, which were originally part of the Moffett estate. At Crump's request, the administrator of Moffett's estate executed an administrator's deed conveying the 148 acres to Crump and McHard as tenants in common. The chancellor then granted McHard's motion to partition that land, awarding Tracts A and C to McHard. Even after Crump's affidavit was found to be fraudulent, the additional Moffett heirs took active steps to deed Tracts A and C to McHard and provide it with title. Based on the agreement between the additional heirs and McHard, the chancellor entered the August 2020 order excepting Tracts A and C from being restored to the Moffett estate.

¶56. The question of whether McHard owns the property in full or possesses only a minority interest is one that this Court will not endeavor to answer. The only question before us is whether, for the purposes of filing a petition for a private road pursuant to section 65-7-201, McHard owns the landlocked property. We find that McHard does own it for these purposes. As stated, in enacting section 65-7-201, the Legislature acknowledged that “an owner is entitled to the full enjoyment of his property where feasible, especially if the enjoyment of the right would make useful and valuable that which otherwise would be useless and valueless.” Warwick, 246 So. 2d at 528. As an owner of the McHard Property, McHard is entitled to “the full enjoyment” of the property. Furthermore, we find no language in the statute or relevant caselaw requiring that the owner seeking access to its landlocked property be the sole owner.

B. Joinder of Necessary Parties

¶57. As discussed, the petitioner seeking a private road pursuant to section 65-7-201 must own the landlocked property at issue. Section 65-7-201 also requires that the petitioner join as a party the owner of the property that the petitioner seeks to condemn: “The owner of the property shall be a necessary party to the proceedings.”

¶58. Here, the trial court held that McHard “failed to join all necessary parties to the eminent domain action.” The trial court explained that McHard was required to join as parties “all of the individuals with an ownership interest” in McHard's property. The trial court based this decision on its finding that McHard may have “no title at all” to the property at issue, because “any title [McHard] received was derived from [Crump's] fraudulent and void process by publication.”

¶59. Our review of the record shows that McHard has title to the landlocked property at issue and properly joined as a party the owners of the property McHard sought to condemn for a private road. We therefore find that the trial court erred in finding that McHard failed to join all necessary parties.⁵

C. Necessity for Access

¶60. Next, the trial court found that McHard failed to meet its burden of showing the proposed road was necessary. As stated, to prove necessity, McHard must show that its “property has no access to the public road” and that McHard “has been unable to obtain a reasonable right-of-way from all of the surrounding property owners.” Ward, 78 So. 3d at 344 (¶6); Rotenberry, 214 So. 2d at 278.

¶61. At trial, the court heard expert testimony regarding the necessity of McHard's proposed private road from professional land surveyors Troy Gardner and Harvey Saul. Sam McHard testified on behalf of McHard, and he was admitted as an expert in farming. The trial court also heard testimony from Joe Robertson and real estate attorneys Sharp and Wood.

¶62. After reviewing the testimony and evidence, the trial court found that McHard “met its burden of proof to establish that its purported property was landlocked.” Our review of the record confirms that the evidence presented at trial reflects that the McHard property could not be accessed from any public road.

¶63. However, the trial court found that McHard failed to establish necessity because the evidence at trial showed that McHard “failed to attempt to secure a right-of-way by contract or grant from all adjacent landowners.” Specifically, the trial court found that McHard failed to attempt to secure a right of way by grant or contract from the owners of the Jordan Property, the Stewart Property, the Westervelt/Fruit of the Vine LLC Property, and the Notluge/Palmer Property.⁶ The trial court also found that McHard failed to present any testimony “as to the cost or expense of building an easement to [a public road] over the Jordan [P]roperty” or “the cost or expense of constructing an access easement over” the Notluge/Palmer Property.

¶64. Regarding the Robertson Property, the trial court found that McHard “failed to meet his burden to show that he attempted to obtain an easement by contract or grant from Joe and Jennifer Robertson[,]” explaining that “[Sam] admitted that he never contacted Jennifer Robertson with an offer to purchase an easement, ․ [and] [Sam's] assertion that he submitted an offer to purchase an easement to Joe Robertson is based entirely on disputed facts.” The trial court further found that McHard “failed to tender a written offer to Joe Robertson to purchase a right-of-way.”

¶65. On appeal, McHard argues that the trial court erred in finding that McHard failed to investigate all other potential rights-of-way from the surrounding properties. McHard maintains that the evidence at trial showed that it attempted to secure an easement from the Robertsons and Westervelt/Fruit of the Vine LLC, but both property owners refused. McHard admits that it did not attempt to obtain access from the Stewarts; however, McHard explains that testimony at trial showed that an easement granting access on the Stewart Property would be impossible without the Stewarts joining with Westervelt/Fruit of the Vine LLC or with both Westervelt/Fruit of the Vine LLC and the Robertsons. McHard asserts that because both Westervelt/Fruit of the Vine LLC and the Robertsons refused to grant McHard an easement for a private road, McHard did not have to perform the “useless act” of seeking an easement from the Stewarts. In that same vein, McHard also asserts that due to the unreasonableness of accessing the McHard Property through the Jordan Property or Notluge/Palmer Property, McHard did not attempt to secure an easement from the owners.

¶66. McHard, as the petitioner, must “show it has been unable to otherwise obtain a reasonable right-of-way from all of the surrounding property owners.” Ward, 78 So. 3d at 345 (¶10). In showing that these alternate routes through surrounding properties are not reasonable, McHard must offer proof as to the cost and expense of these potential alternate routes. Id. Regarding this burden of proof, this Court has explained that “[t]he facts that these potential routes would be longer, more expensive, and less convenient than the proposed road over [the preferred access route] do not amount to a showing that these alternatives were unreasonable.” Id. Rather, the petitioner must “show that these potential alternatives were unreasonable, that is, that they involve disproportionate expense and inconvenience.” Id. (internal quotation marks omitted). “An alternative would involve disproportionate expense and inconvenience if the expense of making the means of access available would exceed the entire value of the property to which access was sought.” Id.

¶67. This Court has explained that section 65-7-201 “does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense.” Id. (quoting Whitefort v. Homochitto Lumber Co., 130 Miss. 14, 26, 93 So. 437, 439 (1922)). Rather, “[t]here must be real necessity before private property can be invaded by a citizen for private purposes, if that can be done at all. The right to the control and use of one's property is a sacred right, not to be lightly invaded or disturbed.” Id.

¶68. In determining whether the trial court erred in finding that McHard failed to prove that the proposed private road was necessary, we turn to review the evidence and testimony regarding McHard's inability to obtain a reasonable right-of-way from the owners of all the surrounding properties: the Jordan Property, the Westervelt/Fruit of the Vine Property, the Stewart Property, the Notluge/Palmer Property, and the Robertson Property.

¶69. The record reflects that the Jordan Property is located immediately west of Tract A of the McHard Property, and it adjoins Pittman Road, a public road. At trial, Sam admitted that McHard did not make an offer to the owners to purchase an easement over the Jordan Property “because it was just an unreasonable area in which to try and traverse” due to the vegetation. Sam, on behalf of McHard, explained that accessing the McHard Property by an easement through the Jordan Property was not a reasonable route because the property was overgrown. Sam testified that the Jordan Property contains a creek, a beaver pond, and swamp land. Gardner also testified that when surveying the land for a potential easement to the McHard Property, he was unable to drive any type of equipment across the swamp land.

¶70. However, Joe Robertson disputed Sam's testimony about the accessibility of the Jordan Property. Joe testified that approximately the first half of the Jordan Property is pastureland, and the rest of the property is wooded. Joe opined that the wooded portion of the Jordan Property “certainly isn't impassable ․ with equipment and those sorts of thing[,]” explaining that he had traveled through that part of the property on his four-wheeler “with no problem.” As to the creek located on the Jordan Property, Joe testified that in some places on the property, the creek is “about [fifteen] feet” wide and then narrower in other places. When asked if a route over the creek would require a bridge, Joe responded, “Absolutely not.”⁷

¶71. The Westervelt/Fruit of the Vine Property is located north of Tract C of the McHard Property. Sam testified that he asked Dr. Westervelt if he could get an easement through his property, but Dr. Westervelt declined. Sam admitted that although he asked Dr. Westervelt if he would grant him an easement, Sam did not offer a specific price.

¶72. As for the reasonableness of accessing the McHard Property through the Westervelt/Fruit of the Vine Property, Sam opined that an easement through this property “wasn't possible or reasonable,” explaining that Dr. Westervelt “graze[s] cattle there year round and have their fences set up so that we would have had to go through one locked gate to get into the main road going to blueberry farm, then go through another locked gate to get into his south pasture that adjoins our [property].” Sam testified that he also would have had to build two barbed wire fences on either side of the proposed easement. Sam opined that this easement “would have been unreasonable, and very expensive” for McHard and “extremely burdensome” for Dr. Westervelt.

¶73. As for the cost and expenses involved in this potential route, Sam testified that he had calculated the cost of the fence, but he admitted that he had not calculated the total cost required for an easement through the Westervelt/Fruit of the Vine Property. He opined that it would be “in excess of $10,000 ․ closer to [$20,000].” McHard did not offer any documentary evidence regarding the cost or expense of this alternate route. Saul also testified regarding the potential cost of this route, stating that the cost of field dirt for the easement would be $6,000, and the cost to remove and replace the fences would be less than $600.

¶74. The Stewart Property is located on the east side of Jordan Road and adjoins Tract C of the McHard Property at the northwest corner. At trial, Sam testified regarding the reasonableness of Saul's proposed alternate route to the McHard Property from Jordan Road that would pass through the Stewart Property. The testimony at trial reflects that this route would also require access through the Westervelt/Fruit of the Vine Property. Sam testified that because Dr. Westervelt had already refused to allow McHard to purchase an easement through his property, and because this alternate route required access through both the Westervelt/Fruit of the Vine Property and the Stewart Property, Sam did not contact the owners of the Stewart Property and offer to purchase an easement on their property. Sam explained that this effort would have been futile.

¶75. The Notluge/Palmer Property is located south of the McHard Property and adjoins a public road. Sam testified that he approached Milton Palmer, one of the owners of the Notluge/Palmer Property, about selling McHard an easement of access through his property or purchasing the McHard Property. According to Sam, Palmer did not want anyone driving over his property, but Palmer expressed interest in purchasing the McHard Property if there was access to a public road. Sam clarified that he did not make a formal offer to Palmer to purchase an easement across his property, explaining that Palmer told Sam that “he was unwilling, at any price, to sell any access easement” over his property.

¶76. Sam also testified that this alternate route through the Notluge/Palmer Property was “totally unreasonable and would require over a mile of going through forest that's under cultivation.” McHard did not offer any testimony or evidence as to the cost or expense of the potential alternate route.

¶77. The Robertson Property is located west of Tract C of the McHard Property. McHard maintains, and the record confirms, that McHard did contact Joe Robertson about purchasing an easement over the Robertson Property. The record contains text messages, an email, and a letter from Sam to the Robertsons referencing the easement proposed by McHard. According to Sam, Joe “ultimately wasn't willing” to allow McHard to purchase the proposed easement access. Sam admitted that he did not approach Jennifer Robertson, Joe's wife and an owner of the Robertson Property, about obtaining an easement through the Robertson Property, but he did address the letter regarding the easement to both Joe and Jennifer. Sam also testified that Joe told him that he spoke with Jennifer, and she did not want to grant McHard an easement.

¶78. At trial, Sam testified that he verbally offered to purchase the easement for $1,000. However, Joe testified that Sam never made a written offer to secure or inquire about a right-of-way over the Robertson Property. The text messages, email, and letter from McHard to the Robertsons referencing the offer to purchase an easement do not list a monetary amount offered by McHard.

¶79. Joe admitted that Sam called him about obtaining an easement to access the landlocked McHard Property. Joe testified that he told Sam that he was welcome “to go over our property” to access the McHard Property and that there was “no need for an easement[.]” Several weeks later, Joe received an email from Sam regarding the proposed easement through the Robertson Property. Joe testified that he responded to the email and expressed his concerns about the length and width of the proposed easement.

¶80. At the hearing on McHard's motion to alter or amend the judgment, the trial court asked if McHard had presented “any proof about what it would cost to build something to traverse [the Jordan Property,] ․ [o]r do we just conclude because you've got to use a four wheeler, it's cost prohibited?” Robertson's attorney responded, “[T]here was no testimony, I think that's undisputed, of any cost to go over anybody else's property, including the Jordan property.” The trial court agreed and accordingly held that McHard failed to meet its burden of showing that it was unable to obtain a reasonable right-of-way from all surrounding property owners.

¶81. In Kalom v. Brady, 872 So. 2d 741, 744 (¶10) (Miss. Ct. App. 2004), this Court reviewed the decision of the Board of Supervisors ⁸ denying a landlocked landowner's petition for a private road over the property of another. The Board of Supervisors based its decision on its finding “that there were other routes through which [the landowner] could gain access to a public road but that [the landowner] failed to present sufficient evidence that his proposed route was the least intrusive to the current owners and the most reasonable to [the landowner].” Id. at (¶9). In support of its ruling, the Board of Supervisors found that the landowner offered “no proof, other than his own statements, ․ regarding the infeasibility of alternate routes.” Id. In affirming, this Court explained that the landowner “could have easily attained such proof [of the infeasibility of the alternate routes] by having an expert walk the tract and give his opinion regarding the ease or difficulty of constructing a road[.]” Id. at (¶10).

¶82. In the case before us, the trial court heard testimony as to the reasonableness of several of the alternate routes from McHard, Gardner, Joe, and Saul. However, the record does not contain sufficient evidence regarding the cost or expenses involved in accessing the McHard property through the surrounding properties. McHard argues that due to the condition of the Jordan Property, a potential route over that property was unreasonable, and therefore McHard was not required to attempt to obtain an easement from the owners. Our review of the record shows conflicting testimony as to the condition of the Jordan Property. Joe testified that conditions of the Jordan Property did not render it “unpassable,” and a bridge was “absolutely not” required to access the property. We recognize that “[i]n a bench trial, the trial judge is charged with the responsibility of weighing and considering the conflicting evidence of the witnesses and determining whose testimony should be believed.” Massey v. Neely, 309 So. 3d 138, 143 (¶20) (Miss. Ct. App. 2021). This Court “cannot reweigh the evidence and must defer to the trial judge's findings of the facts, so long as they are supported by substantial evidence.” Id.

¶83. In Ward, the trial court found that the potential routes to the landlocked property over two surrounding properties “were unsuitable because of a slough or lowland area.” Ward, 78 So. 3d at 346 (¶11) (internal quotation marks omitted). On appeal, this Court found that although one of the surrounding property owners testified that “her property was impassable by logging trucks in its present state, ․ she did not give competent testimony as to what improvements would be required or what they would cost.” Id. This Court further found that “[t]he only evidence about the lowland on [the other surrounding] property came from [the owner of an adjacent property], and she just described it as a slough,’ without further elaboration.” Id. This Court held that “[t]his evidence is simply insufficient to show that these potential routes are unreasonable.” Id.; see also Hobby v. Ott, 382 So. 3d 1156, 1163-64 (¶19) (Miss. Ct. App. 2023) (finding that a chancellor abused her discretion in finding that the landlocked landowners “presented sufficient proof that they were entitled to an easement by necessity without presenting any evidence regarding the expenses involved in accessing their properties in some manner other than by traversing across” the proposed property and easement route).

¶84. Based on the record before us, and in light of our caselaw, we find that the trial court did not abuse its discretion in determining that McHard failed to meet its burden of establishing necessity pursuant to section 65-7-201. The trial court's finding on this issue is supported by substantial evidence in the record. Because McHard failed to establish necessity, we do not need to continue our analysis and address whether McHard met its burden of proving that the proposed private road is reasonable. Otis, 312 So. 3d at 353-54 (¶6) (“[T]o successfully invoke this statute, [a party] must do two things: (1) establish that this course of action is necessary for it to access its land and (2) convince the special court of eminent domain that the proposed plan is reasonable.” (emphasis added)).

CONCLUSION

¶85. As stated, we find the trial court erred in its determination that McHard failed to show that it owned the McHard Property and that McHard failed to join the necessary parties to its petition to establish a private road. However, we find that the record contains substantial evidence to support the trial court's finding that McHard failed to establish that its proposed private road was necessary. We therefore affirm the trial court's judgment denying McHard's petition for a private road pursuant to section 65-7-201. Additionally, because we find that McHard failed to show “(i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice[,]” we find that the trial court did not err by denying McHard's Rule 59(e) motion. Brooks, 882 So. 2d at 233 (¶15).

¶86. AFFIRMED.

FOOTNOTES

1.   The petition listed the following defendants: First South Farm Credit, John Does 1-20, including any and all other persons or parties in interest having or claiming any rights, title, or interest in and to the real property described here, and the Robertsons. The record reflects that First South Farm Credit, the mortgagee of the Robertsons’ land, was served with process, but did not answer or take a position in this litigation.

2.   Despite differences in calculation, the record consistently reflects that Moffett was left with 148 acres of real property.

3.   McHard and the administrator of the Moffett estate entered into settlement agreements with the additional Moffett heirs and were ultimately dismissed from the action; therefore, the order granting summary judgment was entered against the only remaining defendant: Crump.

4.   The record reflects that the chancellor did not enter an order as to McHard's motion for clarification. The chancellor explained that the best course of action for disputing the trial court's finding was for McHard to appeal the trial court's judgment denying McHard's petition.

5.   See Est. of Stephens v. Est. of Palmer, 324 So. 3d 1175, 1178 (¶14) (Miss. Ct. App. 2021) (“A necessary party is one who has such a substantial interest in the suit that no complete, practical, and final judgment can be made without directly affecting his interest or else leaving the controversy in such condition that its final determination may be wholly inconsistent with equity and good conscience.” (internal quotation marks omitted)).

6.   The record reflects that Dr. Chris Westervelt owns one of the surrounding properties, and that property is titled under the name Fruit of the Vine LLC. Milton Palmer owns two tracts of land adjacent to the McHard Property. One of the tracts owned by Palmer is titled in the name of Notluge LP.

7.   This Court has held that “a potential access requiring the construction of a bridge (over a drainage canal or a river) is unreasonable.” Ward, 78 So. 3d at 346 (¶11) (citing Rotenberry, 214 So. 2d at 278).

8.   The prior version of section 65-7-201 required landlocked landowners to petition the Board of Supervisors.

CARLTON, P.J., FOR THE COURT:

BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, WEDDLE AND ST. PÉ, JJ., CONCUR. EMFINGER, J., NOT PARTICIPATING.