text:
    Lee Madison PALMER, Jr. v. CITY OF OXFORD, Mississippi.
    No. 2002-KM-00848-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      David G. Hill, Oxford, attorney for appellant.
    Bela J. Chain, III, Oxford, attorney for appellee.
   EASLEY, Justice, for the Court.

¶ 1. Near midnight on June 20, 2001, Lee Madison Palmer, Jr. (Palmer), a minor, was pulled over by Officer Ray Sockwell (Officer Sockwell) of the City of Oxford Police Department. The officer initially stopped Palmer on a speeding violation, traveling 45 miles per hour in a 30 mile per hour zone. Upon speaking with Palmer, Officer Sockwell noticed the strong smell of alcohol. This police stop eventually led to Palmer being tried and convicted of first offense driving under the influence (DUI) and speeding by the Oxford Municipal Court. Palmer then appealed the decision to the Circuit Court of Lafayette County for a de novo trial. On April 22, 2002, Palmer was tried and convicted in the circuit court, the Honorable Andrew K. Howorth presiding, of the crimes of first offense driving under the influence (DUI) and speeding. Palmer was sentenced to serve a term of 24 hours at the Lafayette County Detention Center, pay a $1,000 fine and taxed with court costs and assessments. Palmer now appeals to this Court from the DUI first offense conviction and sentence only.

FACTS

¶ 2. On the night of June 20, 2001, Officer Soekwell stopper Palmer for speeding, traveling 45 miles per hour in a 30 mile per hour zone. The officer determined the speed that Palmer was traveling through the use of radar. When Officer Sockwell spoke to Palmer, he noticed the strong smell of alcohol from Palmer’s breath. Officer Sockwell asked Palmer whether he had been drinking. Palmer told the officer that he had had a few beers. Officer Sockwell then asked Palmer to step out of the vehicle. The officer noticed Palmer used the vehicle to support himself. Officer Sockwell also noted that when Palmer spoke he slurred his speech.

¶ 3. Next, Officer Sockwell administered field sobriety tests including the HGN, walk and turn and one legged stand. Officer Sockwell wrote down Palmer’s test results contemporaneously with the administration of the tests on an Alcohol Drug Influence (ADI) report. After administering the HGN test, the officer noted that he observed four out of the possible six clues on this test.

¶ 4. A heel to toe test also was administered to Palmer. Officer Sockwell described the heel to toe test as follows:

Okay, sir. The subject is placed in a position on which right foot will be in front of his left foot on a line. His hands down at his side and he is given instructions on how to perform the test. He was told to take nine heel to toe steps down the line, turn by taking a series of small steps and nine heel to toe steps back during this time he is to keep his hands at his side without looking at his feet while he walks. Count out loud so I can hear him and don’t stop the test until he has completed the whole test and then he is asked if he understands.

Officer Soekwell saw Palmer exhibit six out of a possible eight clues, which included: Palmer being unable to keep his balance during the test instruction period, starting the test too soon, stopped walking, missed a heel to toe movement, raised his arms, and performed 10 steps instead of nine.

¶ 5. Officer Sockwell also administered the one legged stand test. Out of the four possible clues for this test the officer observed all four clues which included swaying, raising his arms, hopping and putting his foot down. The officer also stated that Palmer exhibited three classic signs of intoxication which included the strong odor of alcohol on his breath, being unsteady on his feet and slurred speech. From his observation of the classic signs of intoxication, Officer Sockwell stated that he felt that Palmer was under the influence of intoxicating beverages. The officer made this determination before he administered the field sobriety tests to Palmer. Upon completion of the field sobriety tests, Officer Sockwell felt that Palmer was operating a motor vehicle under the influence of intoxicating beverages.

¶ 6. Soon thereafter, Officer Sockwell transported Palmer to the Lafayette County Detention Center to offer Palmer the Intoxilyzer 5000 test. At the center, Palmer was placed in the intoxilyzer room for observation by Officer Sockwell. Officer Sockwell is certified to use the Intoxi-lyzer 5000 machine. Before administering the intoxilyzer test, Officer Sockwell observed Palmer for 20 minutes to make sure that he neither ingested nor regurgi-fated anything by mouth. Palmer was offered three intoxilyzer tests at 00:48, 01:10 and 01:13 a.m. on June 21, 2002. All of the test cards were part of the record. Two of the tests administered on June 21, 2001, at 00:48 and 01:10, resulted in no blood alcohol content (BAC) reading. The two test results from the Intoxilyzer 5000 machine stated “Invalid test, check ambient conditions.” The last test administered at 01:13 indicated that Palmer’s BAC was .127. Officer Sockwell testified that he showed and told Palmer the test result of .127.

¶ 7. A citation document was given to Palmer on or about June 21 by Officer Sockwell. Officer Sockwell admitted that the copy of the citation that he served upon Palmer did not record the .127 BAC result. Officer Sockwell merely checked block A and C on the citation served upon Palmer. Also, Officer Sockwell did not record the second invalid test (01:10 a.m.) on an intoxilyzer log sheet. Officer Sock-well stated that he read Palmer his rights with each test although there was no documentation to show that he had read Palmer his rights on the third test (01:13 a.m.). Between the second and third test Officer Sockwell stated that he just changed the mouthpiece on the machine.

¶ 8. After hearing the testimony from Officer Sockwell, the sole witness at trial, and hearing arguments by both the prosecution and defense, the trial judge ruled that Palmer was guilty of speeding and DUI first offense. The trial judge also stated:

I am going to have to say that, you know, there are issues here and there are things that procedures that are to be followed but nothing has been brought to the Court’s attention either by statute or any case law that supports the propositions that the defendant’s procedural rights or any rights of the defendant in this case were violated in this arrest.

From this ruling Palmer appeals to this Court raising the following issues:

ISSUES
I. Whether the trial court erred in admitting the intoxilyzer test over Palmer’s objection to a series of substantive and procedural irregularities.
II. In the alternative, whether the trial court erred in convicting Palmer despite the testing officer’s failure to follow established procedures approved by the Commissioner of Public Safety and the State Crime Lab, and specifically, the Officer’s failure to follow the instructions on the Intox-ilyzer 5000 Operator’s Manual.
III. Whether the trial court erred in convicting Palmer of DUI over his objection to irregularities in the “copy” of the citation/affidavit he received.
IV. Whether the trial court erred in convicting Palmer of “common law” DUI in the absence of specific proof that Palmer’s “ability to drive a vehicle” has been impaired by the ingestion of intoxicating liquor.
V. If Palmer is found guilty of DUI first offense “common law” DUI standards is Palmer entitled to petition the trial court for non-adjudication under the zero tolerance for minors portion of the implied consent law.

LEGAL ANALYSIS

I. Intoxilyzer Test

¶ 9. Palmer’s main contention is that the BAC test result should not have been admitted into evidence. In his testimony, Officer Sockwell, the sole witness at trial, referenced a “booklet” which was the operating manual for the Intoxilyzer 5000 machine. Palmer argues that the trial court erred by not admitting in toto the operating manual of the Intoxilyzer 5000 machine. He also argues that the trial judge never explicitly ruled on his motion for admission of the manual. He claims that the failure to admit the manual deprived him “of convincing evidence of the test’s unreliability and of the failure of the testing officer to follow protocol as established by his training and the source of the testing instrument.” Palmer requests that this Court reverse the trial court and, at a minimum, remand for a rehearing with the admission of the manual. In the alternative, Palmer requests that this Court take independent notice of the manual and remand for a rehearing and deny the admission of the BAC test because of violations of the procedures mandated by the Implied Consent Law.

¶ 10. This Court in the DUI case McIlwain v. State, 700 So.2d 586, 590 (Miss.1997), held that:

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Hentz v. State, 542 So.2d 914, 917 (Miss.1989), Monk v. State, 532 So.2d 592, 599 (Miss.1988). The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.

McIlwain, 700 So.2d at 590 (quoting Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). In McIlwain, the Court set forth a three-prong test based upon Johnston, “for laying the predicate prior to admitting the results of a D.U.I. test.” Id.

The court must determine whether the 1) proper procedures were followed, 2) whether the operator of the machine was properly certified to perform the test, and 3) whether the accuracy of the machine was properly certified.

Id. (citing Johnston, 567 So.2d at 238).

¶ 11. Officer Sockwell was the sole witness to testify at trial. During his testimony, a certificate certifying that the in-toxilyzer machine was inspected, working, calibrated and met acceptable standards was admitted into evidence. Officer Sock-well also stated that he had a certificate showing that he was qualified to use the Intoxilyzer 5000 machine. The certificate, entitled “Mississippi Department of Public Safety Permit To Conduct Breath Analysis,” was admitted into evidence.

¶ 12. When questioned by the prosecution about the test result readings for the first two tests (00:48 and 01:10), Officer Sockwell stated that the results on both test cards stated “invalid test, check ambient conditions.” The prosecution then asked the officer what the results meant resulting in the following exchange:

Q.[State] Do you know what — when in-toxilyzer five thousand machine gives you that message [Invalid test, cheek ambient conditions], do you know what that means, sir? What are you supposed to do?
# # % %
A. It says in the booklet.
[Defense] May I object to a booklet being received.
[Court] I think you have already objected to him answering his question. I am going to see what his answer is and if you need to make a further objection after he answers it I will let you.
[Defense] I apologize. Just wanted to be timely.
[Court] I understand?
A. Showed invalid test check ambient conditions. The intoxilyzer has detected a presence of substance in the room which will stop the instrument from completing an air reading.
[Defense] I object to him having read on a booklet and if the Court is going to consider it I will ask that it be admitted so the court can consider whether or not it be allowed without.
[Court] Your objection will be noted and I’m going to allow him to continue with the examination and allow you to cross examine him on this point so I can be a little more edified, if that is a word before this is over with.
Q. [State] Now let’s talk about [where] you said you got that from a booklet. Where did you get that definition?
A. Well actually it was given to me by the chief DUI Officer, Sergeant Goolsby. Part of our training process when you come across certain things I asked him about this I had on an earlier case and he give me a copy of this so I could refer to it.
Q. What is protocol once you receive that error message that you have got on those two test cards that you have in front of you. What do you do?
A. Run the test again.
Q. After doing what if anything?
A. It’s not necessary, from my training it’s not necessary but I waited for an additional 20 minutes and offered him the test again.

¶ 13. On cross-examination, Officer Soekwell stated that he allowed Palmer over 40 minutes total for the intoxilyzer tests. The officer waited twenty minutes before administering the first test, another twenty minutes before the second test and two minutes between the second and third test. Pursuant to Mcllwain, the three-prong test for laying a predicate for admission of the test was properly completed as indicated in the testimony and submission of the certificates.

¶ 14. As for the manual, the trial judge stated that he would allow Officer Soekwell to be cross-examined on that point. However, during the whole trial including cross-examination no manual was ever presented to the trial judge for consideration. While it is somewhat unclear from the record, the State argues that Officer Sock-well did not have a manual with him on the day of his testimony nor was a subpoena requested for the production of the manual. Nevertheless, the officer did testify that he was trained to run the tests again whenever there was a reading of an “invalid test check ambient conditions.” Officer Brian Goolsby, chief DUI officer, had given Officer Soekwell the definition as part of the training process. In addition, Officer Soekwell explained that his training taught him that a strong odor of an intoxicating beverage in a room will cause this type of machine reading. Officer Soekwell then stated that on the night in question, only Palmer and he were in the intoxilyzer room which is very small, only a little bit bigger that the size of a closet. On cross-examination there was an indication that Officer Soekwell had some sort of “form” which contained the definition. When questioned about the training that Officer Soekwell received on ambient conditions, he also stated that “Sergeant Goolsby giving me that form showing me the reason for that type of reading.” (emphasis added)

¶ 15. The record is unclear about the alleged reference to the operating manual. Officer Soekwell does refer to a “booklet”; however, he stated that Officer Goolsby gave him information for the “check ambient condition” test result as part of his training process. On cross-examination, Officer Soekwell refers to a “form” that Officer Brian Goolsby gave to him. The manual was not excluded by the trial court rather the trial court allowed the defense to cross-examine Officer Soekwell on this point. There was no manual introduced into evidence in this case. Accordingly, this Court finds that the trial court did not err and the issue is without merit.

¶ 16. Furthermore, we find that despite Officer Sockwell’s reference to the definition on the “form,” his testimony still was independent and sufficient. In other words, Officer Soekwell testified independently based on his training process and experience. Officer Soekwell explained that “[tjhrough my training we have been taught that the strong odor of intoxicating beverages in a room will cause that type [an “invalid test check ambient condition”] of reading.” This issue is without merit.

II. Testing Procedure

¶ 17. Palmer next argues that there were irregularities in the testing procedure. At trial, he argues that there were two key procedural deficiencies: (1) improper logging of the intoxilyzer test; and (2) failure to read Palmer his rights prior to the third BAC test.

A. The Logbook

¶ 18. Officer Soekwell testified as to the existence of an intoxilyzer logbook. The logbook sheet was admitted into evidence. The logbook has two entries for Palmer on June 21, 2001 at 00:48 and 01:13 only. During his direst testimony, Officer Sockwell stated that he administered three tests to Palmer at 00:48, 01:10 and 01:13. These three test cards were admitted into evidence. However, on cross-examination, Officer Sockwell stated that in the intoxi-lyzer logbook he only recorded two tests, those being the first test (00:48) and the last test (01:13). Therefore, the second test at 01:10 was not on the logbook sheet. At trial, the following exchange occurred:

Q. [Defense] And based on your training you’re required to note all test[s] which are given; is that not correct?
A. There are a lot of time[s] they are not noted in here. The subject goes under it might not be a notation here. I didn’t feel it was needed in there. The middle one [test], I didn’t feel it was needed to be in there. It was showing the same as the first.
Q. Are you suggesting that you don’t note when they go under. Aren’t there some on there that are lower reading[s]?
A. I am saying that some people do and some people don’t, sir.

Palmer asserts that Officer Sockwell’s nonchalance about selectively recording the tests on the logbook had bearing on the hearsay exception for admissibility of public records and their purported reliability and the substantial compliance requirement of the Implied Consent Law.

¶ 19. Palmer relied upon Jones v. State, 798 So.2d 592, 594 (Miss.Ct.App.2001), a DUI case involving authentication of certificates for the proposition “[w]here one of the safeguards is deficient the State bears the burden of showing that the deficiency did not affect the accuracy of the result.” (citations omitted). The State argues that the logbook was for record keeping to determine the number of tests given. In addition, the State argues that the test cards have all the information on them. While the Officer stated that he only logged two test on the intoxilyzer logsheet, he retained the three test cards. Therefore, the State maintains that Palmer was not prejudiced by the logging of the two tests when the officer retained three test cards. Further, the State maintains that the three test cards could not surprise Palmer and the log sheet contained no information not indicated on the actual test cards. We agree that the State is correct in its argument that Palmer was not prejudiced by the failure to note three tests on the log sheet where the actual test cards were part of the record.

B. Reading Palmer His Rights

¶ 20. Palmer argues that the warning is statutory pursuant to § 63-11-21 and part of the procedure approved by the State Crime Lab and the Commissioner of Public Safety. Further, Palmer asserts that the State must prove the warning beyond a reasonable doubt as an element of § 63-ll-30(c). The State argues that the officer did not deviate from the implied consent warning and that there was only one completed test with a breath sample. At issue is the second checklist which has a warning time of 01:09 prior to the second test at 01:10. Likewise, Officer Sockwell testified that he read Palmer his rights when he administered the test. On cross-examination, Officer Sockwell also testified that he read Palmer his rights prior to each and every intoxilyzer test. However, there are only two intoxilyzer checklists. On redirect, Officer Sockwell stated that the rights that he read to Palmer never changed between the first, second or third reading. The testimony indicates that Officer Sockwell read Palmer his rights before attempting to administer the intoxilyzer test and obtaining a BAC reading. Accordingly, this issue is without merit.

III. Irregularities in the “copy” of the citation/affidavit

¶ 21. Palmer’s argument again boils down to whether there was substantial compliance by the officer in the administration of the citation. Palmer asserts that the copy of the citation that he received was different than the original filed citation. He cites to three irregularities, two of which he admits are of “relatively insignificance” and one that is “substantial.” Significantly, Palmer received a copy of citation that had a blank space or no BAC reading under subsection C of the citation. He contends that at a minimum this Court should reverse and remand as to the conviction and exclude the intoxilyzer test result. The State argues that Palmer has never asserted that he did not know with what offense he was charged and all proceedings were based upon the original ticket at the arraignment, the municipal court and the circuit court.

¶ 22. Indeed, Officer Sockwell admitted that the copy of the citation that he served upon Palmer did not have the .127 BAC result. Officer Sockwell merely checked block A and C on the citation served upon Palmer. However, Officer Sockwell also testified that he explained the test to Palmer that night and told him his test result.

¶ 23. Palmer relies in part upon Edwards v. State, 800 So.2d 454, 461 (Miss.2001), a case dealing with statutory construction of burglary of a business as opposed to a dwelling. In Edwards, this Court stated:

This Court in Reining v. State, 606 So.2d 1098, 1103 (Miss.1992), provided guidance in cases involving criminal statutes as follows:
Although a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose. United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 380, 92 L.Ed. 442, 448 (1948); see also State v. Burnham, 546 So.2d 690, 692 (Miss.1989). Strict construction means reasonable construction. State v. Martin, 495 So.2d 501, 502 (Miss.1986). This Court has held that the test concerning statutory construction is whether a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden. Burnham, 546 So.2d at 692; Roberson v. State, 501 So.2d 398, 400 (Miss.1987); Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981).

800 So.2d at 461. Miss.Code Ann. § 63-9-21(3)(b) and (c) and § 63-9-21(6)(2001) state:

(b) The traffic ticket, citation or affidavit which is issued to a person arrested for a violation of the Mississippi Implied Consent Law shall be uniform throughout all jurisdictions in the State of Mississippi. It shall contain a place for the trial judge hearing the case or accepting the guilty plea, as the case may be, to sign, stating that the person arrested either employed an attorney or waived his right to an attorney after having been properly advised of his right to have an attorney. If the person arrested employed an attorney, the name, address and telephone number of the attorney shall be written on the ticket, citation or affidavit.
(c) Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.
(6) The original traffic ticket, unless the traffic ticket is filed electronically as provided under subsection (8) of this section, shall be delivered by the officer issuing the traffic ticket to the clerk of the court to which it is returnable to be retained in that court’s records and the number noted on the docket. The officer issuing the traffic ticket shall also give the accused a copy of the traffic ticket. The clerk of the court shall file a copy with the State Auditor within forty-five (45) days after judgment is rendered showing the amount of the fine and cost or, in cases in which no judgment has been rendered, within one hundred twenty (120) days after issuance of the ticket. Other copies that are prescribed by the State Auditor pursuant to this section shall be filed or retained as may be designated by the State Auditor. All copies shall be retained for at least two (2) years.

(emphasis added). Palmer argues that the statute requires that a copy of the information comprising a complaint, and that pursuant to § 63-9-21(6) the original ticket, are filed and the accused is given a copy of the ticket.

¶ 24. The ticket that Palmer received had the following pertinent part under section (c):

□ Having an alcohol concentration of two one-hundredths percent. (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, to wit: _%.

While Palmer did not have an exact BAC reading listed on the copy of the citation that he received, we find that he nevertheless was aware that the second portion of Section C, concerning the BAC level allowable for individuals under the legal age to purchase alcohol, was checked by the officer. The exact BAC level was not indicated but it is clear that Palmer had to have a level above .02% to be cited for the violation. As stated in Edwards, 800 So.2d at 461, while a criminal statute that imposes a penalty is strictly construed it is not so strictly construed as to be devoid of common sense or statutory purpose. An ordinary person who reads the citation would have notice of the type of forbidden behavior. In addition, Miss.Code Ann. § 63-9-21 (3) (c) provides that a ticket have adequate information which will constitute a complaint from which prosecution may proceed whereas § 63-9-21(6) provides that the ticket must be filed and a copy given to an accused. Palmer’s argument is strained. Palmer was provided a copy of the ticket prior to leaving the detention center.' Under Palmer’s argument any accused would have to wait at a detention center or jail until such time as the clerk’s office is open to file the ticket and then give a copy to the accused. Theoretically, a person arrested for a DUI on Friday night would then have to wait in jail until Monday morning when the clerk’s office opens to receives his filed copy of the ticket. We find that this argument does not reflect the intent of Miss. Code Ann. § 63-9-21 when read as a whole. Accordingly, this issue is without merit.

IV. “Common law” DUI

¶ 25. This next issue is predicated upon this Court finding that the admission of the BAC test is erroneous. Palmer argues that if this Court finds, as he believes, that the BAC was erroneously admitted then he requests this Court to determine whether the State adequately proved the element of what is commonly called “common law” DUI.

¶ 26. We find that the BAC test was properly admitted and as such this Court need not address this issue in further detail. Accordingly, this issue is without merit.

¶ 27. In the alternative, there was sufficient evidence to convict Palmer under Miss.Code Ann. § 63-11-30. Block “a” of the ticket states that a person is in violation of the statute if he “willfully and unlawfully drive[s] or otherwise operate[s] a motor vehicle within this state (a) [u]n-der the influence of intoxicating liquor.” Palmer argues that Officer Sockwell witnessed no erratic driving by him, and therefore, block “a” is inapplicable to him. Palmer’s argument is without merit.

¶ 28. The officer stopped Palmer for speeding. When he spoke to Palmer, the officer noticed the smell of an intoxicating beverage from Palmer’s breath. The officer had Palmer step away from the car to determine if the smell was coming from the car or from Palmer himself. As Palmer stepped out of the vehicle he had to support himself on the vehicle. The officer then determined that the smell was from Palmer. The officer noticed that Palmer had some of the classic signs of intoxication such as the smell of an intoxicating beverage, slurred speech and unsteadiness. The officer then had Palmer perform a number of field sobriety tests, such as the walk and turn and one legged stand, all of which indicated that Palmer was impaired and was under the influence of intoxicating beverages. Officer Sock-well initially stopped Palmer for speeding, Palmer was driving the vehicle at the time the officer stopped him. The officer then determined that observed Palmer and determined that he was impaired and operating the vehicle under the influence of intoxicating beverages. This issue is without merit.

V. Non-adjudication

¶ 29. Palmer argues, that if this Court finds that he is guilty of a first offense DUI under a “common law” theory, he is eligible for non-adjudication pursuant to the Zero Tolerance for Minors provision of the Implied Consent Law. Palmer received his citation and was convicted in 2001. Miss Code Ann. § 63 — 11— 30(3)(a) (2001) which was applicable at this time stated:

(3)(a) This subsection shall be known and may be cited as Zero Tolerance for Minors. The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If such person’s blood alcohol concentration is eight one-hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.

According to the 2001 Zero Tolerance for Minors provision of the Implied Consent Law, the subsection only applied if the BAC reading is at least .02% and no more than .08%. This Court finds that the BAC test is admissible and since Palmer’s BAC level was .127% it is not within the parameters of the Zero Tolerance for Minors provision of the Implied Consent Law. Therefore, he is not afforded this provision of law. This Court need not address any analysis of this provision under a common law theory because this Court has found that the BAC test results are admissible. This issue is without merit.

CONCLUSION

¶ 30. For the foregoing reasons, the judgment of the Circuit Court of Lafayette County is affirmed.

¶ 31. CONVICTION OF FIRST OFFENSE DUI AND SENTENCE OF 24 HOURS IN THE LAFAYETTE COUNTY DETENTION CENTER AND FINE OF $1,000.00, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . In 2003 the alcohol concentration level were amended by the Legislature, however, the levels reflected in the citation below were the proper levels in June 2001 when Palmer received his citation. The 2001 citation states the in pertinent part:
      That the aforesaid person did, in violation of § 63-11-30(1) Mississippi Code 1972, willfully and unlawfully drive or otherwise operate a motor vehicle within this state:
      □ (a) Under the influence of intoxicating liquor; or.
      □ (c) □ Having an alcohol concentration of ten one-hundredths percent. (.10%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, to wit: _% or
      □ Having an alcohol concentration of two one-hundredths percent. (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, to wit: _%
      Both boxes (a) and (c) and the second section of section (c) concerning the alcohol concentration levels of .02% for a person below the legal age to purchase alcoholic beverages were checked on the citation.

      . The correct citation appears to be § 63-11-5.

      . Palmer indicated that his copy listed the make of car as a Ford whereas the filed original listed a Nissan. Also, the copy was signed by Officer Sockwell but he did not attest it.


source: Caselaw Access Project

author: GRAVES, Justice, for the Court. McRAE, Presiding Justice,

license: Public Domain

text:
    Bobbie GAINES v. K-MART CORPORATION.
    No. 2000-CA-00097-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2003.

      Thomas Jones, Charles Raymond Ward, Jr., attorneys for appellant.
    H. Gray Laird, III James D. Holland, Ridgeland, attorneys for appellee.
    Before PITTMAN, C.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. In this premises liability case a customer was injured when she fell from a stepladder in a K-Mart store while trying to retrieve a displayed item. The jury found the customer 95% at fault but assessed her damages at a fraction of the uncontradicted past and future medical expenses. After the trial court granted an additur, the customer appeals contending that the jury’s apportionment of fault was against the weight of the evidence and that the trial court abused its discretion in excluding testimony about and photographs of other stepladders at the store. K-Mart also cross-appeals arguing that the trial court erred in granting an additur. Finding no reversible error by the trial court, we affirm its post-additur judgment.

FACTS AND PROCEEDINGS BELOW

¶ 2. On December 14, 1994, Bobbie Gaines (Gaines) and her sister went to the Super K-Mart department store (K-Mart) in Jackson, Mississippi to do some Christmas shopping. While in the store, Gaines spotted a popcorn tin located on the top shelf in the holiday display section. A six-foot stepladder was located next to the shelf. When Gaines climbed the ladder to retrieve the popcorn tin, she fell, sustaining injuries to her head and lower back. Melvin Jones, a K-Mart employee in loss prevention, filed an accident report, and an ambulance was called to assist Gaines. Gaines was taken to St. Dominic’s Hospital in Jackson where she was treated and released a few hours later.

¶ 3. Later that same day Gaines went to several emergency rooms in Neshoba County and Leake County complaining of back pain and headaches. Each time she was given pain medication and released. After experiencing persistent incontinence, chronic back pain and migraine headaches, Gaines was examined by several specialists, including a psychologist who opined that Gaines may have been malingering as to the extent of her pain. At the time of trial, Gaines’s medical bills approached $83,000. In addition, Gaines learned that she would have to wear a catheter the rest of her life.

¶4. Gaines brought suit in the Circuit Court of the First Judicial District of Hinds County alleging that K-Mart was negligent in placing the ladder where a customer could use it. The jury returned a verdict in favor of Gaines assessing her damages as $10,000, but found that Gaines was 95% at fault. The jury then reduced the award to $500. The trial judge granted an additur of $20,491, based upon an expert’s estimate that Gaines’s present and future medical expenses would total approximately $610,000. The additur raised the award to approximately 5% of $610,000. K-Mart did not accept the addi-tur, and both parties appealed.

DISCUSSION

I.

WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 5. Gaines argues that the jury verdict was against the overwhelming weight of the evidence in that K-Mart’s negligence was substantially greater than the 5% assessed by the jury. In support of this position Gaines cites Moore v. Winn-Dixie Stores Inc., 252 Miss. 693, 173 So.2d 603 (1965). In Moore this Court held that a property owner owes an invitee the duty to use reasonable care to keep its store in a reasonably safe condition for the protection of its invitees, or the owner owes an invitee the duty to warn of any dangerous conditions not readily apparent which the owner knew, or should have known, in the exercise of reasonable care and the duty to conduct reasonable inspections to discover dangerous conditions existing on the premises. Id. Therefore, Gaines submits that K-Mart owed its customers the following duties:

(1) A duty to use reasonable and ordinary care to keep its store reasonably safe for the protection of its customers; or
(2) A duty to warn its customers of any dangerous conditions not readily apparent existing in the store which K-Mart knew or should have known in the exercise of reasonable care; and
(3) A duty to conduct reasonable inspections to discover and correct dangerous conditions existing in the store.

¶ 6. Gaines posits that K-Mart breached its duty to her by placing unsafe ladders on the sales floor which it knew, or should have known, were being used by customers. Gaines further posits that K-Mart knew that its customers were using these ladders and despite a store policy which prohibited such use, K-Mart failed to remove them or warn Gaines of their condition. Gaines argues that she provided the jury with unrefuted evidence that she suffered injuries due to her fall from the defective ladder in K-Mart’s store. Gaines argues further that it is undisputed that her injuries resulted in severe urological damage.

¶ 7. K-Mart counters that this Court has consistently held that if reasonable men might have a difference of opinion as to whether the negligence of a party constitutes a substantial factor in bringing about the injury, the question of negligence is for the jury, and that all questions of negligence and contributory negligence are for the jury with proper instructions from the trial court. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 772 (Miss.1992); Smith v. Walton, 271 So.2d 409, 410 (Miss.1973). K-Mart submits that the jury in the instant case was properly instructed in the law and properly rendered a verdict apportioning fault between the two parties.

¶ 8. K-Mart agrees that under Mississippi law the owner or operator of business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition and, if the operator is aware of the dangerous condition which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988). K-Mart submits, however, that an invitee is still required to use that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss.1995). It is undisputed that Gaines failed to ask for assistance from one of K-Mart’s employees before climbing the stepladder to retrieve the popcorn tin from the top shelf. K-Mart submits that this was sufficient to establish that Gaines’s injuries were the result of her own carelessness.

¶ 9. Gaines counters that at the time of her injuries, the ladder was already on the sales floor in a dangerous condition so as to be used by K-Mart customers. Gaines points to the absence of conflicting testimony establishing that warnings were posted. Gaines also points to the testimony of a former K-Mart employee, Melvin Jones, who investigated the accident after it happened. Jones testified that the ladder appeared to be “ramshaek” and unstable. He also testified that some screws in the middle steps appeared to be loose. Gaines submits that since this was the only testimony submitted concerning the condition of the ladder, any objective assessment by the jury should have led to the conclusion that the K-Mart ladder was not reasonably safe for K-Mart customers to use.

1110. K-Mart counters that there was conflicting evidence presented as to the condition of the ladder. K-Mart points out that upon cross-examination, Jones admitted that the ladder was not broken or cracked and if such was the case, he would have noted it on the accident report which he prepared. K-Mart submits further that the jury was not required to believe the testimony of Melvin Jones. Finally, K-Mart argues that the jury viewed three photographs of the scene of the accident which showed the ladder involved and could reach its own conclusion as to the ladder’s condition.

¶ 11. K-Mart cites Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172 (Miss.1990), in which this Court held that the jury is in the best position to evaluate and weigh the truthfulness of each witness’s testimony. Id. at 1177. “The demeanor or bearing, the tone of voice, the attitude and appearance of the witnesses, all are primarily for inspection and review by the jury. The jury not only has the right and duty to determine the truth or falsity of the witness, but also has the right to evaluate and determine what portions of the testimony of any witness it will accept or reject.” Id., (quoting Travelers Indem. Co. v. Rawson, 222 So.2d 131, 134 (Miss.1969)).

¶ 12. The jury heard testimony from both sides and was in the best position to determine which version of events was more credible. As stated above, the jury has the right to evaluate and determine what portions of the testimony of any witness to accept or reject. In the instant case, the jury heard the testimony of Gaines and Jones as to the condition of the ladder. The jury also saw pictures of the accident scene with the ladder in question lying on the floor beside Gaines. Finally, the jury heard testimony from Gaines’s doctor and that of an expert witness who presented estimates of Gaines’s future medical expenses.

¶ 13. As disparate as the verdict may seem as it relates to the degree of fault accorded the parties, it is not this Court’s place to substitute its judgment for that of a lawfully impaneled jury. Only when the verdict evinces bias, passion or prejudice will a reviewing court have cause to overturn. McIntosh v. Deas, 501 So.2d 367, 369 (Miss.1987). There is insufficient evidence to establish that such is the case here. It was certainly reasonable for the jury to have expected that a customer would not attempt to retrieve an item from the top shelf of a department store without the assistance of an employee. Furthermore, it was certainly reasonable for the jury to have found that Gaines’s own negligence significantly contributed to her injuries, and thereby apportion fault as it did. In light of the evidence presented, these findings do not shock the conscience, nor rise to the level of evidencing bias, passion or prejudice. Accordingly, Gaines’s point of error is without merit. The jury’s verdict as to the apportionment of fault should be upheld.

II.

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING TESTIMONY AND PHOTOGRAPHS OF ALLEGEDLY DEFECTIVE LADDERS.

a.

¶ 14. Gaines next argues that the trial judge erred in excluding the testimony of the former K-Mart employee, Melvin Jones, regarding other ladders situated on K-Mart’s sales floor. Gaines submits that Jones’s testimony would have established that K-Mart allowed faulty, defective or damaged ladders returned by customers to be placed on the sales floor. Gaines cites Rule 406 of the Mississippi Rules of Evidence. It states, “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion is in conformity with the habit or routine practice.” M.R.E. 406.

¶ 15. The line of questioning at issue went as follows:

Q: Would these — well you’ve already said these types of ladders were available for sale to the public?
A: Yes sir.
Q: Were these ladders ever returned by customers?
A: Yes.
Q: What are some of the reasons why these ladders would have been returned?
BY MR. HOLLAND: Your Honor, I would object to the relevance of this. That returning other ladders does not relate to this particular ladder.
BY THE COURT: Where are you going with this, counsel?
BY MR.WARD: To show that there are other problems with ladders, your Honor.
BY THE COURT: The Court is going to sustain the objection.

¶ 16. Gaines posits that had the court allowed this line of questioning to continue, the jury would have been given the relevant information that K-Mart routinely and customarily placed defective ladders on the sales floor. Moreover, Gaines submits that the jury would have come to the conclusion that the ladder involved in Gaines’s accident was indeed defective.

¶ 17. K-Mart submits that Gaines’s argument is nothing more than an attempt to stack several inferences upon each other in an effort to disguise pure speculation. K-Mart cites Rule 403 of the Mississippi Rules of Evidence which states in pertinent part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. K-Mart submits that there was no issue at trial as to how the ladder involved in the accident got on the sales floor. K-Mart further submits that Gaines failed to present evidence that the ladder involved had been returned by a customer or had been returned in a defective condition. K-Mart urges that the admission of evidence concerning other ladders would have only encouraged the jury to speculate that this ladder was within a group of other ladders returned by customers and that such speculation would only detract from the jury’s evaluation of the direct evidence in the case. We agree.

¶ 18. This Court has stated that the admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion. Barrett v. Parker, 757 So.2d 182, 183 (Miss.2000). Moreover, this Court has held that for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party. Hansen v. State, 592 So.2d 114, 115 (Miss.1991).

¶ 19. Although Rule 406 allows the admission of evidence tending to establish a business’s routine, habit or practice, Rule 403 prohibits the use of any evidence that substantially confuses the issues. At trial, Gaines, through the testimony of Melvin Jones, sought to establish that K-Mart routinely left defective ladders on its sales floor. If Gaines had simply sought to establish that K-Mart routinely left ladders on its sales floor, then testimony regarding this practice may have been admitted, if relevant. The conflict arises because the jury is left to speculate about the inferences Jones’s testimony raises: (1) that the ladder involved in the instant case was defective, and (2) that K-Mart knew of the ladder’s dangerous condition. Such inferences muddy the issues and confuse the jury. Accordingly Gaines’s argument is without merit. The trial judge did not err in excluding the proposed testimony of Melvin Jones concerning the condition of other ladders in the store.

b.

¶ 20. Gaines next argues that the trial court erred in excluding photographs of other ladders on the basis that the actual photographer had not identified the photographs. While Gaines is correct that the trial judge should not have excluded the photographs on that basis, See Wells v. State, 604 So.2d 271, 277 (Miss.1992) (citing Jackson v. State, 483 So.2d 1353 (Miss.1986)), the photographs were still inadmissible for the same reasons addressed in the preceding section; such evidence confuses the issues as the photographs do not address whether the ladder involved in Gaines’s accident was defective. Accordingly, Gaines’s argument is without merit.

III.

WHETHER THE TRIAL COURT ERRONEOUSLY GRANTED AN ADDI-TUR TO THE JURY’S AWARD.

¶ 21. K-Mart submits in its cross-appeal that the trial court’s decision to grant an additur to the jury award was erroneous and should be reversed. In reviewing a trial court’s grant of an additur, this Court’s standard of review is limited to an abuse of discretion. Maddox v. Muirhead, 738 So.2d 742, 743 (Miss.1999) (citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992)). The party seeking the additur bears the burden of proving his injuries, loss of income, and other damages. This Court views the evidence in the light most favorable to the defendant, giving him all favorable inferences that may reasonably be drawn therefrom. Rodgers, 611 So.2d at 945.

¶22. Miss.Code Ann § 11-1-55 (Rev. 2002) provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

¶ 23. K-Mart first argues that § 11 — 1— 55 requires that one of two conditions exist prior to an order granting an additur. K-Mart cites McIntosh v. Deas, 501 So.2d 367 (Miss.1987). In McIntosh this Court held that before the trial judge may usurp the jury’s function in setting a damage award, he must comply with the language of the statute and find either: (1) that the jury’s verdict is so shocking to the conscience that it evinces bias, passion and prejudice on the part of the jury; or (2) that the verdict was contrary to the overwhelming weight of the credible evidence. Id. at 370.

¶ 24. K-Mart argues that the trial court’s order in the instant case failed to comply with either of these requirements. In further support of this position, K-Mart cites Gibbs v. Banks, 527 So.2d 658 (Miss.1988). In Gibbs this Court held that an implicit finding of an inadequate award does not suffice to meet the requirements of § 11-1-55. Id. at 660.

¶ 25. It would have been helpful if the trial judge in the instant case made an explicit finding that the damages awarded were against the overwhelming weight of the evidence. However, we find that the affirmative statement made by the trial judge is more than implicit. The trial court’s order provides in pertinent part:

The court finds that the jury’s verdict indicated that Plaintiff was 95% negligent in causing $609,832.91, of Plaintiffs reasonable and necessary medical expenses and/or other damages asserted by Plaintiff at trial. The jury verdict nonetheless awarded Plaintiff only $10,000 damages, which is less than the calculation of 5% of the reasonable and necessary medical expenses and damages substantiated by Plaintiff at trial. Moreover, the jury’s award is not consistent with the 5% damage assessment. Accordingly, the court is of the opinion that an additur which reflects 5% of the reasonable and necessary medical expenses or total damages asserted by the Plaintiff at trial is appropriate.

¶ 26. Hence, we find that it is reasonable to conclude from the aforementioned order, that the trial court found that the damage award by the jury was inadequate because it was against the overwhelming weight of credible evidence.

¶ 27. Gaines counters that the trial judge noted in her order that, “the jury’s verdict indicated that the Plaintiff was 95% negligent in causing $609,832.91 of the Plaintiffs reasonable and necessary medical expenses and/or other damages asserted by Plaintiff at trial. The jury verdict nonetheless awarded Plaintiff only $10,000 damages, which is less than the calculation of 5% of the reasonable and necessary medical expenses substantiated by plaintiff at trial. Moreover, the jury’s award is not consistent with the 5% damage assessment.”

¶ 28. Gaines submits that since the trial judge obviously believed that the jury’s verdict was contrary to the overwhelming weight of credible evidence, her subsequent additur was in accordance with § 11-1-55. Gaines especially notes the trial judge’s remark concerning the damages that were substantiated at trial. Gaines concludes that to disregard the trial judge’s finding simply because she failed to add a statement that the jury’s verdict was contrary to the overwhelming weight of credible evidence, would serve only to punish Gaines for what is at most a judicial misstep.

¶ 29. The jury award went against the overwhelming weight of the evidence. It is hard to imagine, after reviewing the record in this case, how the jury could come have come up with such a paltry amount. Gaines’s medical expenses at the point of trial had already approximated $83,000. Even if the jury believed that Gaines was malingering as to the extent of her back pain, the fact remains that she has to wear a catheter for the rest of her life. It was not an abuse of discretion for the trial judge to have given credence to the expert testimony presented by Gaines regarding her medical expenses. Furthermore, the trial court left intact the jury’s apportionment of fault.

¶ 30. Although the order granting the additur failed to meet the technical requirements of § 11-1-55, the statute allows the reviewing court to make the specific findings if it deems such necessary. Accordingly, we hold that the jury’s verdict went against the overwhelming weight of the evidence and that the trial court’s additur was an appropriate amount in keeping with the proportion of the allocated fault.

CONCLUSION

¶ 31. For these reasons, we affirm the trial court’s post-additur judgment.

¶ 32. AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 33. I agree with the majority that the trial court’s grant of an additur was not in error. Nevertheless, I believe that the display of bias by the jury is so evident as to warrant reversal as to the apportionment of liability. Therefore, I respectfully dissent.

¶ 34. As it pertains to liability, the majority noted that a reviewing court may have cause to overturn when a jury’s verdict evinces bias, passion or prejudice. See McIntosh v. Deas, 501 So.2d 367, 369 (Miss.1987). Subsequently, the majority found that there was insufficient evidence to show bias enough to warrant such action here.

¶ 35. However, in its discussion of the propriety of the grant of an additur in this matter, the majority finds that the jury award was against the overwhelming weight of the evidence in this case. The jury found only $10,000 in damages and that the plaintiff was only entitled to $500 of that amount since the defendant was only 5% liable. However, the trial court found the plaintiff proved present and future medical expenses of around $610,000, and thus it granted the additur to reflect 5% of that amount.

¶ 36. Therefore, despite finding that the defendant was 5% responsible for around $610,000 worth of damages, the jury-awarded only .082% of that amount. Such an award shocks the conscience. It certainly shocked the conscience of the trial court, which took steps to correct the award, described by the majority as “paltry.” However, the jury’s award speaks volumes as to the frame of mind of this jury.

¶ 37. As the majority noted, a psychologist testified that the plaintiff may have been malingering. Such a general statement was sufficient to inflame the jury and perhaps caused this evident bias and passion that warrants the reversal of that verdict. Accordingly, I would reverse the judgment and remand this case for a new trial. Therefore, I respectfully dissent.


author: BRIDGES, J., for the Court.

text:
    McKennsey AUSTIN a/k/a Lucky, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00920-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.
    Rehearing Denied Dec. 9, 2003.
    Allan D. Shackelford, Clarksdale, Johnnie E. Walls, Greenville, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J., for the Court.

¶ 1. The grand jury of Coahoma County, Mississippi indicted McKennsey Austin on Count I, murder, Count II, drive-by shooting. On May 22, 2001, Austin was tried by a jury and was found guilty as to Count I, murder of Jones, and was found not guilty as to Count II, drive-by shooting. Austin was then sentenced to a term of life imprisonment within the custody of the Mississippi Department of Corrections. Feeling aggrieved by the conviction, Austin filed a motion for a JNOV, or in the alternative, a new trial, which was denied by the trial court on June 1, 2001. A notice of appeal was timely filed on June 4, 2001. Appointed counsel for Austin, Allan Shack-elford, filed a brief on behalf of Austin which contained a representation, pursuant to Turner v. State, 818 So.2d 1186, 1189(¶ 11) (Miss.2001), that the appeal was without merit. Austin has now filed his appeal through his attorney, Johnnie Walls.

STATEMENT OF THE ISSUES

I. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE’S DENIAL OF JURY INSTRUCTION D-4, A SELF DEFENSE INSTRUCTION.

II. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE’S DENIAL OF JURY INSTRUCTION D-5, AN ALTERNATE THEORY OF ACCIDENT AND MISFORTUNE.

FACTS

¶ 2. On the night of August 25, 2000, there was a party or social gathering held at the community center on Yates Street in Friars Point, Mississippi. There were a number of people at the party including, Corinthian Jones, a/k/a. “Cat Man” (the name of the victim appears in the indictment as “Crenthians” but also appears in numerous places as “Corinthian”), Nathan Goodlow, Calvin “Bone” Williams, Bervin Hopson, and McKennsey Austin, a/k/, “Lucky.”

¶ 3. Later that evening, shortly after midnight, Corinthian Jones was shot and killed near the community center. There were numerous eyewitnesses to the crime who also testified at the trial.

¶ 4. Nathan Goodlow, a friend of Jones and who was present at the scene, testified that earlier in the evening Jones grabbed Austin and choked him. After the altercation, Austin and Hopson left the party together. About an hour later they came back to the party. They started circling around Goodlow, Williams and Jones while circling the block several times. As they rode around, Jones shouted curse words at the vehicle in which Austin was riding. Jones started to approach the car with Williams while Goodlow followed behind them. It was then that Goodlow heard a shot, which he thought came from the window of the driver’s side of the vehicle, but Goodlow could not see who fired the shot. Austin then got out of the car from the driver’s side and Goodlow heard three or four more shots.

¶ 5. Calvin Williams, a close friend of Jones and an eyewitness, testified that he was with Jones from about 8:00 p. m. on the night of the shooting. He was also present when the fight broke out between Austin and Jones. He further testified that when Austin’s car came back, he and Jones were walking on a sidewalk when someone hollered, “Cat Man go to the car.” Williams did not go to the car; however, Jones did with his hands in his pockets. Austin then jumped out of the car and shot Jones. Williams thinks five or six shots were fired which came from the direction of Austin’s car. When he heard the shots Williams hit the ground and did not get up until the police arrived at the scene.

¶ 6. Bervin Hopson, Austin’s cousin, testified to the same thing the others had testified to except that Hopson said that Austin did nothing in response to Jones’s cursing and that Austin just made another loop through the party area. Hopson further recalled that after they made the loop, everything became strange. Hopson remembered Jones’s cursing at the car, and that Austin jumped out of the car. He did hear shots but did not see who fired them because he was trying to stop the car which was still in motion.

¶ 7. Dr. Steven Hayne, the state pathologist who performed the autopsy on Jones, found that Jones died of a gunshot wound to the back of the neck and that the trajectory was consistent with turning and running away from the shooter. He also testified that there was another gunshot wound that entered the back of the right arm.

ANALYSIS

I. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE’S DENIAL OF JURY INSTRUCTION D-4, A SELF DEFENSE INSTRUCTION.

¶ 8. Austin asserts that the trial judge erred in refusing a self-defense instruction and that he is consequently due a new trial.

¶ 9. This Court has held that in reviewing the denial of a jury instruction we must “consider not only the denial instruction but all of the instructions which were given to ascertain if error lies in the refusal to give the requested instruction. A defendant is entitled to have instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence.” Guillen v. State, 825 So.2d 697, 698(¶ 5) (Miss.Ct.App.2002).

¶ 10. The trial judge refused instruction D-4 on the ground that it was not supported by the evidence. However, the judge modified an instruction which gave Austin a lesser-included-manslaughter-not-in-necessary-self-defense instruction. Also, the judge did not find that a self-defense instruction should be given in light of the testimony that Austin got out of the car, which was still in motion, and purposefully shot Jones, who sustained a shot to the back of his right arm and another shot to the back of the neck. There was also evidence that the victim, Jones, was running away from the shooter.

¶ 11. Also noteworthy is the fact that Austin’s appointed counsel, Allan Shackel-ford, filed a brief, in accordance with Turner, 818 So.2d at 1189(¶ 11), and stated that after scouring the record thoroughly for reversible error, he found none that would not be frivolous.

¶ 12. We find that based on the evidence presented in the record, the trial judge properly denied jury instruction D^4 for lack of an evidentiary foundation. Therefore, this issue is without merit.

II. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE’S DENIAL OF JURY INSTRUCTION D-5, AN ALTERNATE THEORY OF ACCIDENT AND MISFORTUNE.

¶ 13. Austin also claims that the trial judge was in error in his denial of a jury instruction based on accident or misfortune.

¶ 14. The record clearly shows the purposefulness of Austin’s acts and paints a picture of malice and a determination to kill. Austin’s excuses that Jones was yelling at him and walked up to the car with his hands in his pockets, do not excuse his actions. As stated in Hart v. State, “one does not have the right to kill another merely because he is afraid of him; nor may one kill another because he is afraid he will receive some bodily harm.” Hart v. State, 637 So.2d 1329, 1341 (Miss.1994) (quoting Shinall v. State, 199 So.2d 251, 259 (Miss.1967)).

¶ 15. Using the above standard of law, we find that the trial judge properly denied jury instruction D-5 for lack of an evidentiary foundation. Therefore, this issue is meritless.

¶ 16. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING AND SOUTHWTCK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., AND IRVING, J. CONCUR IN RESULT ONLY.


author: CHANDLER, J., for the court. LEE, J.,

text:
    John D. FIKE, Appellant, v. James B. SHELTON, III, Appellee.
    No. 2002-CA-00668-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      John D. Fike, Pro Se, attorney for appellant.
    John Hinton Downey, Jackson, attorney for appellee.
    Before McMILLIN, C.J, THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. James B. Shelton, III filed a complaint in the Chancery Court of Hinds County for establishment of an easement. Shelton named John D. Fike, the Hinds County Board of Supervisors and any parties interested in the property formerly owned by Levi Sturgis, Sr. as defendants in the action. Shelton petitioned the chancery court to decree an easement by necessity across the Fike and Sturgis properties or, alternatively, if the court held that Shelton was required to proceed under Mississippi Code Annotated Section 65-7-201 (Supp.2002), that the court order the board of supervisors to construct a private road. Shelton and Fike agreed to a bifurcated hearing in which the court would first rule as to whether Shelton was entitled to an easement. If the court ruled that Shelton was entitled to an easement, the court would then reconvene to decide the remaining issues of width, nature and location of the easement.

¶ 2. In the first hearing, the chancery court held that Shelton was entitled to an easement by necessity across the Fike and Sturgis properties. At the second hearing, the court ordered that the easement should be fifty feet wide. The ditches, shoulders and width of the road were limited to twenty-five feet with the remaining width to be used for utilities and making repairs. Feeling aggrieved, Fike appeals the following errors to the Court:

I. WHETHER THE AWARD BY THE CHANCELLOR OF AN EASEMENT BY NECESSITY TO APPELLEE WAS IMPROPER AND AN ABUSE OF THE COURT’S DISCRETION AS APPELLANT PROVED APPELLEE HAD ACCESS AND PERMISSION TO USE OTHER AVAILABLE ROUTES FOR INGRESS AND EGRESS INTO HIS PROPERTY.
II. WHETHER APPELLEE HAD PROPER STANDING BEFORE THE CHANCERY COURT AS HE FAILED TO EXHAUST ALL MANDATORY ADMINISTRATIVE REMEDIES PRIOR TO FILING LITIGATION, AND FAILED TO JOIN ALL NECESSARY PARTIES TO HIS SUIT.
III. WHETHER THE CHANCELLOR ERRED IN AWARDING APPELLEE A FIFTY FOOT WIDE UTILITY EASEMENT OVER APPELLANT’S PROPERTY WHEN STATUTORY AUTHORITY ONLY ALLOWS FOR INGRESS AND EGRESS.
IV. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY FAILING TO AWARD APPELLANT COMPENSATION FOR THE TAKING OF HIS PROPERTY.

¶ 3. Finding no merit to any of the issues, we affirm.

FACTS

¶ 4. Shelton purchased forty acres of real property in Raymond, Mississippi that has no road access. Shelton’s forty acres were at one time two separate twenty acre tracts of land, although Shelton purchased both twenty acre tracts together as one and on the same date. This appeal centers around which twenty acre tract of the forty acres provides Shelton with an easement by necessity through adjoining property.

¶ 5. Shelton asserted that he was entitled to an easement by necessity through Fike’s property because twenty acres of Shelton’s forty acre parcel were at one time part of a commonly-owned tract of land with the Fike property prior to its partitioning in 1932. Shelton’s twenty acre tract that was in common ownership with the Fike property is hereinafter called parcel one. Shelton’s twenty acre tract that was not in common ownership with the Fike property is hereinafter called parcel two.

¶ 6. Fike owns a sixty acre tract of land located to the southwest of Shelton’s property and it connects with parcel one. The Fike property adjoins Lebanon-Pine Grove Road, a public road, along the southwest corner of the property. North of the Fike property and west of the Shelton property (parcel one) is a twenty acre tract of land owned by Levi Sturgis, Jr.

¶ 7. The Shelton, Fike and Sturgis properties were at one time part of a hundred acre tract of land owned by Christiana Sturgis. The land was partitioned among the three heirs of Christiana Sturgis in 1932, as follows: Fike’s sixty acre tract was conveyed to Calvin Sturgis; the Levi Sturgis, Jr. property, which is north of Fike’s property and consists of twenty acres, was conveyed to Levi Sturgis, Sr.; and the twenty acres owned by Shelton (parcel one), which is east of the Levi Sturgis property, was conveyed to Minnie Sturgis Washington. Shelton investigated the land records and discovered that road access for Christian Sturgis’ property before partitioning had been through the Fike property because Lebanon-Pine Grove Road was in existence in 1932 and adjoined the Fike property prior to its partitioning.

¶ 8. Fike argues that Shelton had access to his property because other adjoining landowners had granted Shelton verbal permission to cross their property. Parcel one adjoins the Sturgis property and the Robinson property abuts the Sturgis property to the west. Parcel two is surrounded by the Berry property to the north and east. Shelton says he was given permission by Robinson to walk across his land to reach his property but was not given permission for motorized travel. Fike asserts that Shelton was given unrestricted access to Berry’s land for entry to his property. Shelton contended that use of the Berry property was in the form of a license that was revocable at will.

¶ 9. Lebanon-Pine Grove Road and Dry Grove Road, are the only public roads that would provide access to Shelton’s forty acres. Access from Dry Grove Road would require an easement through Berry’s property that would intersect with Shelton’s tract (parcel two) that was not in common ownership with the Christiana Sturgis property. Access from Lebanon-Pine Grove Road would require an easement through the Fike and Sturgis properties that would connect to Shelton’s twenty acre tract (parcel one) that at one time had been in common ownership with the Chris-tiana Sturgis property.

I. WHETHER THE AWARD BY THE CHANCELLOR OF AN EASEMENT BY NECESSITY TO APPEL-LEE WAS IMPROPER AND AN ABUSE OF THE COURT’S DISCRETION AS APPELLANT PROVED APPELLEE HAD ACCESS AND PERMISSION TO USE OTHER AVAILABLE ROUTES FOR INGRESS AND EGRESS INTO HIS PROPERTY.

¶ 10. There are two types of implication easements: easements essential to the enjoyment of the land and easements by necessity. Bonelli v. Blakemore, 66 Miss. 136, 143, 5 So. 228, 230-31 (1888). Necessity easements arise from “the implication that someone who owned a large tract of land would not intend to create inaccessible smaller parcels.” Cox v. Trustmark Bank, 733 So.2d 353, 356(¶ 11) (Miss.Ct.App.1999).

¶ 11. A claimant seeking an easement by necessity has the burden of proof and must establish that he is entitled to a right of way across another’s land. Broadhead v. Terpening, 611 So.2d 949, 954 (Miss.1992). An easement by necessity arises by operation of law when part of a commonly-owned tract of land is severed in a way that renders either portion of the property inaccessible except by passing over the other portion or by trespassing on the lands of another. Id. See also Rogers v. Marlin, 754 So.2d 1267, 1272(¶ 11) (Miss.Ct.App.1999). The party asserting the right to an easement must demonstrate strict necessity and is required to prove there is no other means of access. Id. An easement by necessity has a “right of access that is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists. By acquiring the dominant estate, one has already paid for and procured the legal right of access to and from that parcel.” Id. The easement or right-of-way will last as long as the necessity exists and will terminate after other access to the landlocked parcel becomes available. Pitts v. Foster, 743 So.2d 1066, 1068-69(¶ 8) (Miss.Ct.App.1999).

¶ 12. Fike argues the chancery court erred in encumbering his property with an easement because Shelton was given permission from adjoining landowners to access his property defeating the strict necessity prerequisite. Fike claims there was no right to an easement by necessity because Shelton had “unrestricted access” to his property. The access that Fike refers to is Shelton’s permission to gain access from the Robinson property to the west and the Berry property to the north.

¶ 13. Shelton purchased the property in order to build a weekend home. Access from the Shelton property to the Robinson property was limited to foot travel and no permission for motorized travel was given. Access from the Berry property was by oral permission and was in the form of a license which is revocable at will. The limited scope of permission granted to Shelton by Robinson and Berry is not sufficient to extinguish his right to an easement by necessity. It does not rise to the level of unrestricted access.

¶ 14. Shelton has the burden to prove he is entitled to an easement by necessity. During the chancery court proceedings, Shelton’s expert witness testified that parcel one was in common ownership with the Fike and Levi Sturgis properties, prior to its partitioning by Christiana Sturgis in 1932. Evidence at trial showed the Lebanon-Pine Grove Road was in existence in 1932. Fike submitted no evidence that parcel two was in common ownership with the Berry property at any time. Shelton, therefore, never possessed a legal right to an easement through the Berry and Robinson properties without their consent and compensation.

¶ 15. Based on the evidence at trial an easement by necessity arose by operation of law at the moment the property was severed in 1932. The “right of access to the property is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists.” Broadhead, 611 So.2d at 953.

¶ 16. The fact that Shelton purchased the property with knowledge that it was landlocked has no effect on the disposition of this case. Nor does it matter that prior property owners of the Shelton tracts (parcel one and two) had never asserted their right to an easement through the Fike or Sturgis properties. Accordingly, the chancellor properly applied the legal standard in granting Shelton an easement by necessity.

II. WHETHER APPELLEE HAD PROPER STANDING BEFORE THE CHANCERY COURT AS HE FAILED TO EXHAUST ALL MANDATORY ADMINISTRATIVE REMEDIES PRIOR TO FILING LITIGATION, AND FAILED TO JOIN ALL NECESSARY PARTIES HIS SUIT.

¶ 17. Fike argues that Shelton lacked standing to bring suit because he failed to exhaust all administrative remedies prior to bringing the cause of action. The Mississippi Supreme Court has held that the proper method for seeking a private way across neighboring land was by petitioning the county board of supervisors. Wills v. Reid, 86 Miss. 446, 453, 38 So. 793, 795 (1905). Fike contends that Shelton’s failure to petition the Hinds County Board of Supervisors violates Mississippi Code Annotated Section 65-7-201 (Supp.2002), which provides:

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 board of supervisors of the county, which shall, the owner of the land being notified at least five days before, determine the reasonableness of the application. If the petition be granted, the same proceedings shall be had thereon as in the case of a public road; but the damages assessed shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

¶ 18. The Mississippi Supreme Court in Broadhead made an important distinction between the rights granted under section 65-7-201 and the common law right of an easement by necessity. In Broadhead, the plaintiff did not comply with the notice requirements of section 65-7-201. The supreme court held that section 65-7-201 does not apply to an easement by necessity because it requires the petitioner to compensate the landowner for the taking of his land. Broadhead, 611 So.2d at 955. An easement by necessity has a “right of access that is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists. By acquiring the dominant estate, one has already paid for and procured the legal right of access to and from that parcel.” Id. Shelton was not required to petition the Hinds County Board of Supervisors under section 65-7-201 because he was entitled to an easement by necessity.

¶ 19. Fike asks the Court to reevaluate the supreme court’s ruling in Broadhead and to review the Hinds County Board of Supervisors’ policy of rejecting all petitions for private ways. Fike directs the Court’s attention to the dissenting opinions in Broadhead. The Broadhead holding is a unanimous decision referenced with approval in Rowell v. Turnage, 618 So.2d 81, 85 (Miss.1998). The Hinds County Board of Supervisors’ policy of rejecting all petitions for private ways for the reasons set forth in Broadhead is not within the jurisdiction of the Court. See also Cox v. Trustmark Bank, 733 So.2d 353, 356(¶ 13) (Miss.Ct.App.1999).

¶ 20. Fike contends that Shelton “sat on his rights” because he did not exhaust all administrative remedies with the Hinds County Board of Supervisors before initiating litigation. Fike claims that Shelton should have filed a petition or sought a writ of mandamus ordering the board to accept the petition. Shelton testified that he attended a board of supervisors meeting and was informed of the board’s policy of rejecting all petitions under section 65-7-201 based on the supreme court’s ruling in Broadhead. Notwithstanding the board’s policy, an easement by necessity was created when the property was partitioned in 1932; therefore, Shelton was under no obligation to petition the board of supervisors or seek a writ of mandamus.

¶ 21. Fike claims that all necessary parties have not been joined in this suit. “A person subject to the jurisdiction of the court shall be joined as a party in the action if: (1) in his absence complete relief cannot be accorded among those already parties.” M.R.C.P. 19. Fike does not identify a specific party that is necessary to the action. Based on the evidence before this Court, all necessary parties have been joined; therefore, Fike’s claim is without merit.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING APPEL-LEE A FIFTY FOOT WIDE UTILITY EASEMENT OVER APPELLANT’S PROPERTY WHEN STATUTORY AUTHORITY ONLY ALLOWS FOR INGRESS AND EGRESS.

¶ 22. The Court will not interfere with the chancellor’s findings unless he was “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 568 So.2d 594, 596-97 (Miss.1990). If there is substantial evidence in the record to support the chancellor’s findings of fact, those findings must be affirmed here. Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983).

¶ 23. Fike asserts that the chancellor erred in awarding Shelton a fifty foot easement and that the location of the easement has put an undue burden on the use and enjoyment of his land. Fike argues the chancellor was misled by Shelton’s expert witness and granting a fifty foot easement was unreasonable. Fike is correct that an easement of twenty-five feet is the minimum width required for one residence by the Hinds County Planning Commission. But Shelton’s expert witness stated that Shelton required additional footage to run electricity, water and telephone lines because the property is located a distance from the road. Electrical lines would have to be run to the property and the local electrical provider requires a minimum easement of thirty feet for this service.

¶24. The chancellor sits as the finder of fact. Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988). The chancery court limited the width of the easement for purposes of ingress and egress to twenty-five feet, including the shoulders of the road. The remaining twenty-five feet of the easement was to be used solely for utility accommodation and to give Shelton room to bring equipment in to construct and repair the road. Furthermore, if Shelton decides to build a second residence on the property the Hinds County Planning Commission would require a fifty foot easement. The chancellor was not in error in granting Shelton a fifty foot easement.

¶25. Fike argues that the location of the easement unduly interferes with the use and enjoyment of his property. He contends the easement should have been located on the east property boundary. There was expert testimony that the east property line was not as practical due to the number of trees that would need to be removed and the existence of numerous drainage ways. Each drainage way would require a large culvert in order to make the land accessible. Many of the drainage ways run parallel with the east property boundary and would require dirt to be hauled onto the property in order to build a road at this location. There is a large creek on the upperside of the Fike property which requires the placement of a large culvert in order to reach Shelton’s property. If the easement is located where Fike proposes, Shelton would be required to install at least two large culverts in drainage ways as well as a large culvert in the creek.

¶ 26. A logging road is located at the site where the chancellor located the easement. The evidence reflects the most logical location for the easement was the location chosen by the trial court.

IV. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY FAILING TO AWARD APPELLANT COMPENSATION FOR THE TAKING OF HIS PROPERTY.

¶ 27. Fike contends that compensation should be awarded for encumbering his land with an easement because it results in a taking of his property. An easement by necessity has a “right of access that is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists. By acquiring the dominant estate, one has already paid for and procured the legal right of access to and from that parcel.” Broadhead, 611 So.2d at 955. As previously discussed, if a landowner is entitled to an easement by necessity section 65-7-201 does not apply and compensation for the taking should be denied. Id. The trial court did not err in refusing to award Fike compensation for the easement.

¶ 28. In conclusion, this Court holds that Shelton was entitled to an easement by necessity at the moment the property was partitioned in 1932 by Christiana Stur-gis.

¶ 29. Shelton was not required to proceed under section 65-7-201. Fike is not entitled to compensation for the taking of his property because Shelton was entitled to an easement by necessity. The chancellor did not abuse his discretion in awarding Shelton a fifty foot easement.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, J.

LEE, J.,

dissenting:

¶ 31. The majority affirms the decision of the chancellor relying on the supreme court’s decision in Broadhead v. Terpening, 611 So.2d 949 (Miss.1992). However, as I believe the Broadhead decision needs to be revisited, I dissent.

¶ 32. I believe the court in Broadhead misreads Mississippi Code Annotated Section 65-7-201 (1972). The statute specifically gives the proper procedure in order to acquire an easement by necessity. It states as follows:

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 board of supervisors of the county, which shall, the owner of the land being notified at least five days before, determine the reasonableness of the application. If the petition be granted, the same proceedings shall be had thereon as in the case of a public road; but the damages assessed shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

The Broadhead court states that, under the statute, the petitioner must pay the landowner the fair market value of the land taken for the right of way. The court further states that because easements by necessity run with the land and are considered paid for at the time the dominant estate is acquired, then the petitioner would not have to pay for the land if he was determined to have an easement by necessity. However, the statute says nothing explicitly about compensation for land, only damages and costs incurred in the proceedings to acquire the right of way.

¶ 33. In response to Broadhead, the Hinds County Board of Supervisors has refused to follow the law pursuant to Mississippi Code Annotated Section 65-7-201, as evidenced by their order attached hereto. While obviously meaning well and in furtherance of judicial economy, the Board has not afforded Shelton procedural due process. The Board cannot deny petitions across the board before they are even submitted for review. Although Shelton did not petition the Board as a result of its order, he should have done so to exhaust all possible remedies before appealing his cause. Further, Shelton would have been proeedurally correct in filing a writ of mandamus to the supreme court requesting that the Board perform its statutory duties in reviewing his petition.

¶ 34. The majority also takes the position that once land is divided and any part thereof is landlocked, the grantee of the landlocked property is entitled to an easement by necessity under the theory that the grantor has been compensated for such in the purchase price. This seems reasonable on the first sale, but unreasonable and inequitable for subsequent landowners, especially over sixty years later, as in the present case. The property in question was divided in 1932, and for over sixty years no efforts were made to secure an easement across the property Fike now owns. After all, failure to use property for more than ten years could lead to the loss thereof due to adverse possession. See Miss.Code Ann. § 15-1-13 (Rev.2003).

¶ 35. Presently, different owners are in possession of the subject properties, and Shelton has neither paid for an easement nor has Fike been compensated. In my opinion, Shelton has been unjustly enriched while Fike has been penalized. This approach creates a windfall for a purchaser who acquires landlocked property for a very low price with the guaranteed assurance that he can obtain an easement by necessity through another’s frontage property, which most certainly was acquired for a much higher cost. This is a win-win situation for the landlocked owner and a lose-lose situation for the frontage property owner who is forced to give up some of his property without compensation.

¶ 36. As an added difficulty, under Broadhead, the owner with the frontage property has to be concerned for any property owner who may need an easement. Under this reasoning, property could be divided, re-divided, and even further divided and at some later date, because it was part of the original property, any subsequent owner may assert his right for an easement without payment, leaving any subsequent owner of the frontage property subject to losing his valuable property without prior notification. Further, the dominant owner must not only be concerned about existing landlocked owners but any who may purchase landlocked property in the future. How can one ever be sure of acquiring property that is unencumbered? All property is adjacent and connected in one way or another, and many property searches only go back thirty-two years, so how can anyone ever be sure that the property he owns is not subject to or going to be subject to an easement under this theory? How can an attorney ever certify to his client that his property is unencumbered or that it may not be used without compensation? Simply put, under Broadhead, he cannot.

¶ 37. Neither Fike nor Shelton was grantor or grantee at the initial division. Shelton has the advantage of buying the land at a lower cost because it is landlocked and then acquiring the land needed for the easement at no cost. The end result is that Fike has been deprived of as much as 14% of his sixty acre property without due process or compensation. Under article 3, Section 17, Mississippi Constitution (1890), “private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law....” It seems patently unfair for Fike to be punished by the taking of his land for this easement without some compensation. However, as I believe Mississippi Code Annotated Section 65-7-201 provides an adequate remedy at law, I would reverse the ruling of the chancellor to allow Shelton to file his petition according to the statute.

BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION.