Gator day! – Miss. S..Ct. at 1:30

(reposted)

Christmas v. Exxon Mobile – The Christmases own property adjacent to property owned by Exxon. They allege that their property has been overrun with alligators coming from Exxon’s land. Exxon’s land is used for refinery waste and alligators were brought in to serve as the proverbial canaries in the coal mine. Exxon was granted summary jud gment on the alligator contamination claim based on the SOL and the “prior trespass” doctrine. (Under the doctrine of prior trespass, the deed to land does not implicitly convey any right of action for trespasses or property damage that occurred prior to the transaction”; assignment of the cause of action to the purchaser must be express”). The Christmases appealed. The Court of Appeals reversed on the grounds that there was a material factual dispute as to when the Christmases should have learned of the damage via alligator. “Whether an injury to real property is reasonably discoverable depends not only on the nature of the injury, but the character of the property and the uses to which it is put,” the Ct. of Appeals stated. Exxon filed for certiorari which the Mississippi Supreme Court granted. The State Dep’t of Wildlife Fisheries and Parks has filed an amicus brief arguing that private parties have no right to sue. That it has the sole authority over the “regulation, management and protection of wildlife and in particular wild alligators.”

Ct. App. opinion

Exxon’s supp. brief

MDWFP’s amicus brief

If you are watching, you just learned that if you desire to use a visual aide during oral argument, you need to get the Court’s permission first. (This could be in a rule).

Sort of an interesting issue – how many alligators make up a nuisance so as to start the SOL running? Also, does it start to run when you notice the alligators or when you learn where they come from. As usual, you can count on Dickenson to be on top of things but there were good questions from all the justices who were sitting en banc. There was no discussion of the position taken by the Department of Wildlife.

4 thoughts on “Gator day! – Miss. S..Ct. at 1:30

  1. Physical exhibits other than documents: M.R.A.P. 34(h). Doesn’t quite say “permission,” but should be close enough.

    • I had an appeal where my client insisted that I procure a photo of the victim displaying a weapon (the photo existed but I never got it) and show it to the court during oral argument. I explained over and over again why I could not do that (it wasn’t in the record). Unfortunately I did not have the foresight to also warn him that he could not have his pastor send the court a petition begging for his release. I’m not sure this last is a rule exactly but now we all know.

  2. Got an answer to the exhibit question today. Write a letter to the Court (the clerk) asking for permission to use the exhibit. Copy opposing counsel (of course). Specify whether you can bring your own easel or whether you have any special needs for said exhibit.

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