NTV MSSC File

Electronic Document May-16-2019 13:29:13.
2018-CA-00425-SCT Pages: 1
Supreme Court of Mississippi

Court of Appeals of the State of Mississippi
Office of the Clerk
D. Jeremy Whitmire (Street Address)

Post Office Box 249 450 High Street
Jackson, Mississippi 39205-0249 Jackson, Mississippi 39201-1082
Telephone: (601) 359-3694
Facsimile: (601) 359-2407 e-mail:sctclerk@courts.ms.gov
May 16, 2019
This is to advise you that the Mississippi Supreme Court rendered the following decision
on the 16th day of May, 2019.
Supreme Court Case # 2018-CA-00425-SCT

Trial Court Case # 45CH1:17-cv-00791
Natchez Trace Village Property Owner's Association v. Lewis L. Culley, III, Nancy Culley,
Bethany Culley, Allen Cockrell and Paige Weeks Cockrell
Per Curiam Affirmance. Appellant taxed with costs of appeal.
* NOTICE TO CHANCERY/CIRCUIT/COUNTY COURT CLERKS *

If an original of any exhibit other than photos was sent to the Supreme Court Clerk and should
now be returned to you, please advise this office in writing immediately.
Please note: Pursuant to MRAP 45(c), amended effective July, 1, 2010, copies of opinions will not
be mailed. Any opinion rendered may be found by visiting the Court's website at:
https://courts.ms.gov, and selecting the appropriate date the opinion was rendered under the
category "Decisions."
FILED
APR OG 2019
OFF-1\..i::; OF THE CLERK
SUPREME COURT OF MISSISSIPPI SUPREME COURT
COURT OF APl9EALS
POST OFFICE BOX 1 17
JACKSON, MISSISSIPPI 39205
TELEPHONE (601) 359-3697
MICHAEL K. RANDOLPH JOSIAH D. COLEMAN

CHIEF JUSTICE JAMES D. MAXWELL II
DAWN H. BEAM
JAMES W. KITCHENS ROBERT P. CHAMBERLIN
LESLIE D. KING DAVID M. ISHEE
PRESIDING JUSTICES T. KENNETH GRIFFIS, JR.
April 05, 2019 JUSTICES
HUBBARD T. SAUNDERS IV
COURT ADMINISTRATOR
AND COUNSEL
Barry Douglas Hassell, Esq. Steven H. Smith, Esq.

Alexander Lee Morgan Bondurant, Esq. Steven H. Smith, PLLC
Copeland Cook Taylor & Bush, P.A. 4316 Old Canton Road, Suite 200
PO Box 6020 Jackson, MS 39211
Ridgeland, MS 39158-6020
Gene D. Berry, Esq.
Gene D. Berry PLLC
William Polk Thomas, Esq. P. 0. Box 1631
Butler Snow LLP Madison, MS 39130
P.O. Box 6010
Ridgeland, MS 39158-6010
Dear Counselors:
Re: Natchez Trace Village Property Owner's Association v. Lewis L. Culley, III 2018-CA-
00425-SCT
In accordance with Supreme Court of Mississippi Rule 34, the Court has studied the above
styled case and is of the opinion that it has been thoroughly briefed and no oral argument is required.
The caseload of this Court necessitates such a rule so that earlier disposition of cases might
be obtained.
Sincerely yours,
~~~F
Hubbard T. Saunders, IV
Court Administrator
cc: Supreme Court Clerk

E-Filed Document Feb 18 2019 15:15:18 2018-CA-00425-SCT Pages: 6
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

_______________________
NO. 2018-CA-00425-SCT
_______________________
NATCHEZ TRACE VILLAGE PROPERTY OWNER’S

ASSOCIATION, INC. APPELLANT
VS.
LEWIS L. CULLEY, III, NANCY CULLEY,

and BETHANY CULLEY APPELLEES
APPELLANT’S RESPONSE TO MOTION BY APPELLEES TO STRIKE

PORTIONS OF NTVPOA REPLY BRIEF
1.
The Culley Defendants’ Motion to Strike is a transparent attempt to get the last word and
“muddy the waters” of NVTPOA’s Appeal. The Google Earth images of Lake Caroline and
Reunion Lake, and references to the Rules and Regulations of Lake Caroline, Reunion Lake, and
Gray Castle Lake contained in the public Madison County Land Records were provided by
NTVPOA to the Court for context, not argument. This Court is well within its purview to take
judicial notice of each. Thompson v. Jones, 17 So. 3d 524, 528 (Miss. 2008). See also Mississippi
Rules of Evidence 201.
2.
The Record on Appeal is replete with references to the size and location of Culley Lake.
The Google Earth image of Culley Lake (which the Culley Defendants do not seek to strike) is no
different than the images of Lake Caroline and Reunion Lake derived from the same source. It was
intended to provide context for the Court. Likewise, the Rules and Regulations prohibiting jet
skiing and restricting other water sports on Lake Caroline, Reunion Lake, and Gray Castle Lake,
1
were offered for context, in response to the Culley Defendants’ attempted demonization of
NTVPOA for having a rule prohibiting jet skiing on the 30-acre Lake.
3.
“While parties on appeal may not add to the record under Mississippi Rules of Appellate
Procedure 10(f), this Court may take judicial notice of an adjudicative fact, pursuant to Mississippi
Rules of Evidence 201…” Jones, 17 So. 3d at 528 (Miss. 2008). 1 Mississippi Rule of Evidence
201 provides: (b)…A judicially noticed fact must be one not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot be reasonably

1
Id at 528. (“Neither Thompson nor Jones included information about the occurrence of the general
election in either of their briefs. Besides alluding to a general election in a portion of the trial
transcript, the record is almost silent to the fact that the general election for the Sheriff of Coahoma
County was held on November 6, 2007. While parties on appeal may not add to the record
under Mississippi Rules of Appellate Procedure Rule 10(f), this Court may take judicial notice of
an adjudicative fact, pursuant to Mississippi Rules of Evidence Rule 201, that a general election
was held and that Thompson was the winner of that general election. See also Rogers v. Holder,
636 So. 2d 645, 651 (Miss. 1994) (“Rogers contends that these results from November, 1992, are
totally irrelevant to this appeal and are merely an attempt to influence this Court through
introducing matters not of record and not part of the evidence presented at the trial of this
cause…Although parties to an appeal may not add to the record, pursuant to Miss. Sup. Ct. Rule
10(f), we may certainly take judicial notice of the adjudicative fact that a special election was held
and Holder was declared the victor. This information, while neither necessary nor determinative
in this appeal, is clearly relevant. Rogers' Motion to Strike is denied.”)
2
questioned…(c)…A court may take judicial notice, whether requested or not…(f) Judicial notice
may be taken at any stage of the proceeding.” See Mississippi Rules of Evidence 201.
4.
The five enumerated items which the Culley Defendants seek to strike in their Motion are
each generally known within the territorial jurisdiction of the trial court and capable of accurate
and ready determination by sources whose accuracy cannot be reasonably questioned. To be sure,
the Google Earth images are nothing more than public domain satellite imagery of three lakes
located in Madison County. There is no argument by the Culley Defendants that the images do
not accurately reflect the bodies of water. In fact, the Culley Defendants do not object to the image
of Culley Lake derived from the same source. This Court can and should take judicial notice of
the Google map images of geography. 2
5.
Further, the references to Rules and Regulations affecting Lake Caroline, Reunion Lake,
and Gray Castle Lake are contained in public records.3 There is no argument by the Culley
Defendants that these documents are not “capable of accurate and ready determination by resort
to sources whose accuracy cannot be reasonably questioned.” This very Court recently applied

2
See, e.g., Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013) (taking judicial notice of
facts based on Google maps) and United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir.
2012) (taking "judicial notice of a Google map and satellite image" under Rule 201). See
also David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39
Colo. Law. 19, 24 (2010) ("Most courts are willing to take judicial notice of geographical facts
and distances from private commercial websites such as MapQuest, Google Maps, and Google
Earth.").
3
https://lakecarolinems.com/information/rules-and-regulations/;
https://reunionpoa.org/amenities/reunion-lake/;
Madison County Public Land Records, Book 585, pp. 510-511.
3
Rule 201 to agree that an appellate record can include the court taking judicial notice of matters
available on a website, noting that there was no dispute as to the "content or accuracy" of the
judicially-noticed facts. City of Jackson v. Allen, 242 So. 3d 8, 24-25 (Miss. 2018) (affirming on a
record that included website-found facts presented to the circuit court sitting as appellate court).
See also Cowart v. State, 178 So. 3d 651, 655 n.1 (Miss. 2015) (taking judicial notice of facts
included on the MDOC website). As the Fifth Circuit has found, a company's official website---
here, the homeowners' association websites---can be considered a source for judicially noticing a
fact. United States v. Flores, 730 Fed. App'x 216, 219 n.1 (5th Cir. Apr. 18, 2018). Accordingly,
this Court can and should take judicial notice of these public records. 4
6.
The Culley Defendants’ Motion to Strike is the latest red-herring attempt to thwart the
well-reasoned appeal of NTVPOA, filed in an attempt to divert this Court’s attention from what
this case is about: whether NTVPOA can continue to regulate the Lake, by virtue of: (1) an
expressed or implied right; (2) equitable estoppel of the Culley Defendants; or (3) based upon an
Implied Reciprocal Negative Easement. For the reasons set forth above, the Motion by Appellees
to Strike Portions of NTVPOA Reply Brief should be denied.

4
For years, this Court has recognized that public records (such as the land record cited for the Gray
Castle covenants) provide facts that can be judicially noticed. See, e.g., Bridgeman v. Bridgeman,
6 So. 2d 608 (Miss. 1942).
4
THIS the 18th day of February 2019.
Respectfully submitted,
NATCHEZ TRACE VILLAGE PROPERTY

OWNER’S ASSOCIATION, INC.
By: /s/ Barry D. Hassell

BARRY D. HASSELL (MSB #101149)
STEVEN H. SMITH (MSB# 7610)
OF COUNSEL:
COPELAND, COOK, TAYLOR & BUSH
600 Concourse, Suite 100
1076 Highland Colony Parkway
Ridgeland, Mississippi 39157
Telephone: (601) 856-7200
Facsimile: (601) 353-6235
STEVEN H. SMITH, PLLC

2630 Ridgewood Rd. #C
Jackson, Mississippi 39216
Telephone: (601) 987-4800
Facsimile: (601) 987-6600
ATTORNEYS FOR APPELLANT
5
CERTIFICATE OF SERVICE
I, Barry D. Hassell, hereby certify that on this day I electronically filed the foregoing
Appellant’s Response to Appellees’ Motion to Strike with the Clerk of the Court using the MEC
system, which sent electronic notification of such filing to the following:
Gene D. Berry, Esquire ( geneberry@berryfirm.net )

P.O. Box 1631
Madison, Mississippi 39130
Will Thomas, Esquire ( will.thomas@butlersnow.com )

Butler Snow LLP
P.O. Box 6010
Ridgeland, Mississippi 39158-6010
Honorable James C. Walker (via MEC)

Chancery Court Judge
Madison County Chancery Court
Post Office Box 404
Canton, Mississippi 39046
THIS the 18th day of February, 2019.
/s/ Barry D. Hassell

Barry D. Hassell
6

No. 2018-CA-00425
NATCHEZ TRACE VILLAGE PROPERTY APPELLANT

OWNERS ASSOCIATION, INC.
V. CIVIL ACTION NO. 2018-CA-00425
LEWIS CULLEY, III, NANCY CULLEY

AND BETHANY CULLEY APPELLEES
MOTION BY APPELLEES TO STRIKE PORTIONS OF NTVPOA REPLY BRIEF
Appellees, Lewis Culley, II, Nancy Culley and Bethany Culley, pursuant to the MRAP, file
this Motion to Strike portions of the Reply Brief of Appellant, Natchez Trace Property Owners
Association, Inc., (“NTVPOA”) because the Reply Brief includes photographs and other alleged
information that are not in the record on appeal, as follows:
1.
Rule 30, MRAP, provides that “ [a]ppeals shall be on the record as designated pursuant to
Rule 10.” “Mississippi appellate courts may not consider information that is outside the record.”
Hatfield v. Deer Haven Homeowners Association, Inc. 234 So. 3d 1269, 1273 (Miss. 2017). The
Reply Brief of the NTVPOA includes the following that are not a part of the record on appeal:
1). Google Earth photograph purporting to be Lake Caroline. (Page 2 of Reply);

2). That “the Lake Caroline Owners Association prohibits jet skis and racing boats entirely
and limits skiing and tubing to a restricted depth area in its 830 acre lake.” (Page 2 of
Reply Brief);
3). Google Earth photograph purporting to be Reunion Lake. (Page 3 of Reply Brief);
4). That “jet skis are prohibited and skiing and tubing are limited on Reunion Lake.” (Page
3 of Reply Brief) and
5). That as to “Gray (sic) Castle Lake,..., the property owners association has prohibited all
non- electric motors, essentially creating a no-wake zone.” (Page 3 of Reply Brief).1
2.
These photographs and allegations are not in the record on appeal. Such were not admitted
into evidence at trial and were not even proffered at the trial. The NTVPOA does not cite the record
on the referenced points. The inclusion of these items in a Reply Brief is a violation of the MRAP,
Rules, 10(a), 28(e), and 30(a). There was no evidence at trial to back up these photographs or
allegations. The NTVPOA fails to mention who owns legal title to the other lakes. Lewis Culley and
Bethany Culley own legal title to Culley Lake. The NTVPOA cannot make misleading arguments
regarding other lakes. The land records of the Madison Chancery Clerk reveal that the Lake Caroline
Owners Association , Inc., acquired legal title to the lake at Lake Caroline by deed in 1989. (Book
1
The Declarations of Covenants and Restrictions of “Grey Castle Lake” are recorded
with the Madison County Chancery Clerk at Book 585 Page 499. (Ex. C). The Grey Castle
covenants contain a legal description that includes all the land on which the lake sits. In stark
contrast, there are no covenants recorded on the land which is Culley Lake. The covenants are
attached to the deeds to the lots not Culley Lake. The Grey Castle covenants also contain vastly
different terms and conditions from the lot covenants in Natchez Trace Village.
2
287 Page 277) (Ex. A).2 The records of the Madison County Chancery Clerk reveal that the lake at
Reunion was conveyed to the Reunion Property Owner’s Association by Deed recorded at Book
1992 Page 704 (Ex. B). In stark contrast, Culley Lake is owned by the Culleys not the NTVPOA.
No law mandates that an a lake, golf course or other amenity associated with a neighborhood be
owned by a property owners association. The NTVPOA argues the false idea that because something
is done in one subdivision that is somehow proof that it can do the same thing- regardless of
ownership of the land, covenants and controlling documents. No law supports such an outrageous
result.
3.
To the extent that other lakes are somehow relevant (which is denied) such would require
proof of who owns legal title to the lake, whether covenants are recorded on the lake, and the terms
and conditions of the covenants. None of that was done. Instead, the NTVPOA did not offer the
evidence at trial, did not mention any of this in its principal brief and, for the first time, attempts to
inject allegations and photographs of other lakes in its Reply Brief. MST, Inc. v. Mississippi
Chemical Corp., 610 So. 2d 299, 304 (Miss. 1992) (“ We do not consider matters from outside the
record”).
5.
These arguments should be stricken from the Reply Brief as grossly improper. Wilder v.
Currie, 97 So. 2d 384,385 ( Miss. 1957) ( “ An appeal in the Supreme Court can be considered solely
on the record made in the trial court.”); Lee v. State, 70 So. 2d 609, 610 ( Miss. 1954) ( “ We have
2
The land records of the Madison County Chancery Clerk are available on line at the
Madison County, Ms web site ( madison-co.com) and can be searched by Book and Page
number or by Grantor/ Grantee.
3
consistently held that a case appealed to this Court must be tried solely on the record made in the
trial court and that statements found in the briefs of counsel cannot be considered if not a part of the
record made in the trial court.”).
6.
If counsel wanted this evidence in the record, they should have attempted to offer same at
trial under the rules of evidence (if relevant and otherwise admissible in evidence) so the true facts
and complete documentation could be fleshed out at trial and explained by competent witnesses.
Martin v. McGraw, 160 So. 2d 89, 90 ( Miss. 1964) (“ An appeal to the supreme court must be
considered solely on the record made in the trial court. The appellate court is confined to the face
of the record in the trial court, and a case cannot be heard on a different record than that made in the
court below, duly certified.”); Wortham v. State, 219 So. 2d 923, 926-27 (Miss. 1969) (“We will not
go outside the record to find facts and will not consider a statement of facts attempted to be supplied
by counsel in briefs. The rule is so well settled that it is unnecessary to cite authority to support
it...”). “This amounts to an exercise in futility and is a waste of time and effort. It should not be
done.” Wortham, 219 So. 2d at 927.
WHEREFORE PREMISES CONSIDERED, Appellees respectfully request that an order
be entered striking the above-referenced portions of the Reply Brief.
This the 13th day of February, 2019.
s/Gene D. Berry
Gene D. Berry
4
OF COUNSEL:
Gene D. Berry, PLLC
MSB # 2459
950 Ebenezer Blvd., Suite A (39110)
P. O. Box 1631
Madison, MS 39130
(601) 898-0142 (telephone)
(601) 898-0144 (facsimile)
I, Gene D. Berry, attorney for Appellees, do hereby certify that I have this day served via the
MEC system by electronic means, a true and correct copy of the above and foregoing document to
the following:
Barry D. Hassell, Esq.

Alexander Bondurant, Esq
Copeland , Cook, Taylor & Bush P.A.
bhassell@cctb.com
abondurant@cctb.com
Steven H. Smith, Esq.

Steven H. Smith & Assoc., PLLC
ssmith@shsattorneys.com
William P. Thomas, Esq.

Butler Snow LLP
will.thomas@butlersnow.com
And I hereby certify that I have mailed by United States Postal Service the document to the
following non-MEC participants:
Honorable James C. Walker

P.O. Box 404
Madison, MS 39046
.
This 13th day of February, 2019.
s/Gene D. Berry
Gene D. Berry
5

_______________________
NO. 2018-CA-00425-SCT
_______________________

ASSOCIATION, INC. APPELLANTS
VS.

Appeal from the Chancery Court of Madison County, Mississippi
__________________________________________
REPLY BRIEF OF APPELLANT

__________________________________________
Oral Argument Requested
Barry Hassell (MSB # 101149)

Telephone: 601-856-7200
Steven H. Smith (MSB# 7610)

Telephone: (601) 987-4800
i

STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. Oral argument may be helpful to the Court if, after
considering the briefs, the Court has questions concerning the facts and the law. Oral argument
will aid the Court in its decision-making process.
ii

TABLE OF CONTENTS Page(s)
STATEMENT REGARDING ORAL ARGUMENT…………………………………………….ii

TABLE OF CONTENTS……………………………………………………………...................iii
TABLE OF AUTHORITIES……………………………………………………………………..iv
INTRODUCTION………………………………………………………………………………...1
ARGUMENT………………………………………………………………………………..…….4
I. Since there was No Verdict in Favor of the Cockrell Defendants, there was
Nothing for NTVPOA To Appeal………………………………………………...5
II. NTVPOA has the Express and Implied Right to Regulate the Lake…………..…6
III. The Culley Defendants are Equitably Estopped from Asserting that NTVPOA does
not have the Right to Govern the Lake…………………………………………...9
IV. The Court Should Adopt The Doctrine Of Implied Reciprocal Negative
Easement.…………………………………………………………………….…..12
a. A common owner subdivided property into a number of lots for sale……....15
b. The common owner had an intention to create a general scheme of

development for the property as a whole, in which the use of land was
restricted………………………………………………………………..……15
c. The vast majority of subdivided lots contain restrictive covenants that reflect
the general scheme………………………………………………………..…16
d. The property against which application of an implied covenant is sought was

intended to be part of the general scheme of development………………….16
e. The purchaser of the lot in question had notice, actual or constructive, of the
covenant…………………………………………………………………..…17
CONCLUSION………………………………………………………………………………….17
iii

TABLE OF AUTHORITIES
Cases Page
A. D. Home Improvements Co. V. Hide-a-Way Lake,
393 So. 2d 1333 (Miss. 1981) ..................................................................................................... 8
Anderson v New Prop. Owners’ Ass’n of Newport, Inc.,

122 S.W. 3d 378, 384 (Tex. Ct. App. 2003) ............................................................................ n.7
Forster v. Hall,
576 S.E.2d 746 (Va. 2003)....................................................................................................... n.5
H. H. Holloway Trust v. Outpost Estates Civic Club, Inc.,

135 S.W.3d 751 (Tex. Ct. App. 2004) ............................................................................... 12, n.5
Jones v. Cook,
611 S.W.2d 506 (Ark. 1981).................................................................................................... n.5
La Fetra v. Beveridge,
199 A. 70 (N. J. 1938).............................................................................................................. n.5
Land Developers, Inc. v. Maxwell,

537 S.W.2d 904 (Tenn. 1976).................................................................................................. n.5
Lehman v. Wallace,
510 S.W.2d 675 (Tex. Ct. App. 1974) ..................................................................................... n.5
Long Meadow Homeowners’ Ass’n v. Harland,

89 So. 3d 573, 590 (Miss. 2012) .............................................................................................. n.7
Mayor of Clinton v. Welch,

888 So. 2d 416 (Miss. 2004) ..................................................................................................... 11
PMZ Oil Co. v. Lucroy,

449 So. 2d 201 (Miss. 1984) ....................................................................................................... 6
Roper v. Camuso,
829 A.2d 589 (Md. 2003) ........................................................................................................ n.5
Sandborn v. McLean,
206 N.W. 496 (Mich. 1925) ...................................................................................................... 13
iv

Scheuer v. Britt,
118 So. 658 (Ala. 1928) ........................................................................................................... n.5
Schovee v. Mikolasko,
737 A.2d 578 (Md. Ct.1999) ..................................................................................................... 15
Stokes v. Bd. of Dirs. of Lake Cavalier Improv. Comp.,

654 So. 2d 524 (Miss. 1995) ....................................................................................................... 6
Turner v. Brocato,
11 A.2d 855 (Md. 1955) .................................................................................................... n.5, 15
Warren v. Detlefsen,
663 S.W.2d 710 (Ark. 1984).................................................................................................... n.5
Rules of Procedure
Miss. R. App. P. 4(a)……………………………………………………………………………...5

Treatise Page
Restatement 3d. of Property: Servitudes
§ 2.14......................................................................................................................................... 14
v

INTRODUCTION
Due to the Culley Defendants’ efforts at misdirection, NTVPOA clarifies what this case is
about and what it is not. This case is not about whether the Culley Defendants own the middle of
the Lake. They do. This case is not about whether the Culley Defendants pay $79 a year in property
taxes on the Lake. They do. This case is not about whether the legal description contained in each
deed conveyed from the Culley Developers to Natchez Trace Village subdivision lot owners is
subject to NTVPOA Covenants. It is.
This case is about the additional property rights conveyed by the Culley Developers
through those Covenants. This case is about the Culley Defendants’ ownership being “SUBJECT
TO” the perpetual right to use the entire Lake by all of the NTV Subdivision owners. This is a case
about NTVPOA’s right to continue to enforce its rules and regulations on the Lake, just as it has
done for nearly 40 years. This case is also about the Lake, the centerpiece and primary attraction
of the Natchez Trace Village subdivision, being marketed by the Culley Developers as “Governed
by the Homeowners…highly restricted” and “complete in every detail.” R71. 232; RE8.
Ross Barnett Reservoir
This case is about NTVPOA’s right to regulate the use of the 4 to 6-foot deep, 30-acre
Lake, which is depicted as Culley Lake in the Google Earth image above. Is jet skiing a part of
1

this case? Only because NTVPOA’s current Lake Rules prohibit anyone from operating jet skis
on the Lake, an activity which based on the depth of the Lake, endangers the participants,
NTVPOA property owners and their property.
As the record reflects, the Culley Defendants unabashedly refuse to follow the NTVPOA’s
Lake Rules. Instead, those rules—which by their terms apply to all the lot owners in the
Subdivision— now somehow don’t apply to the Culley Defendants. R72. 419; RE37; R72. 735;
RE13.002. (Lewis L. Culley, III testified that if he is “standing on dry land, I will follow what they
say. When I am in the water, I will do as we please on our land.”). This flouting of the NTVPOA’s
Lake Rules extends to the Culley Defendants defying existing safety regulations that, if the Lake
were public, would be illegal. As Lewis L. Culley, III claims, his 11-year old jet skiing on the
shallow, small Lake is not a safety issue, because it is “my business what I do with my child.” R72.
419-420; RE37.
Lakes in neighborhoods all over Mississippi are regulated by homeowner associations. For
example, the Lake Caroline Owners Association prohibits jet skis and racing boats entirely and
limits skiing and tubing to a
restricted depth area in its
830-acre lake (Google Earth
image to the left).1 Of course,
Lake Caroline is 27 times
larger than the Lake in
Natchez Trace Village.

1
https://lakecarolinems.com/information/rules-and-regulations/.
2

Likewise, jet skis are
prohibited and skiing
and tubing are limited
on Reunion Lake Reunion Lake
(Google Earth image
to the right), which is
13 times larger than
the Lake.2 For Gray
Castle Lake, which at 125 acres is more than 4 times the size of the Lake, the property owners’
association has prohibited all non-electric motors, essentially creating a no-wake lake. See
Madison County Public Land Records, Book 585, pp. 510-511.
This action (and its predecessor) originates from the Culley Defendants’ unilateral decision
to deny NTVPOA access to the Lake and dam so it could make dam repairs. As NTVPOA was
trying to maintain the Lake, the Culley Defendants were literally locking them—and all the other
homeowners of Natchez Trace Village—out of the Lake. R72.71; This despite the fact that the
Culley Defendants admit that the Lake-front property owners own the shoreline and at least several
feet of the lake. R.72.418; RE.20.
So while the Culley Defendants attempt to demonize the NTVPOA and minimize their own
actions, this case is about: whether NTVPOA can continue to regulate the Lake, by virtue of: (1)
an expressed or implied right; (2) equitable estoppel of the Culley Defendants; or (3) based upon
an Implied Reciprocal Negative Easement.

2
https://reunionpoa.org/amenities/reunion-lake/.
3

ARGUMENT
The Chancery Court erred when it failed to read the Covenants as a whole, covenants which
by their language, give NTVPOA the express authority to regulate the usage of the Natchez Trace
Village common areas, including the Lake. Even if that express authority didn’t exist—and it
does—the Chancery Court erred when it failed to recognize that the Culley Defendants are
estopped from refusing to adhere to the Lake Rules based on nearly 40 years of regulation by
NTVPOA and the undeniable knowledge, agreement, assistance and acquiescence of the Culley
Family. Finally, the Chancery Court erred when it refused to adopt and apply the doctrine of
Implied Reciprocal Negative Easement to the unique set of facts and circumstances of this case.
These legal errors prohibit NTVPOA—derisively fictionalized as big, bad, and mean by the Culley
Defendants—from continuing to fulfill its mandate to protect the rights of all of the Natchez Trace
Village lot owners, a role it was authorized and commissioned to do and has done for the past 40
years.
4

I. SINCE THERE WAS NO VERDICT IN FAVOR OF THE COCKRELL

DEFENDANTS, THERE WAS NOTHING FOR NTVPOA TO APPEAL.
The Culley Defendants make a desperate effort at affirmation by claiming that the entire
appeal is moot because NTVPOA did not appeal a final judgment against the Cockrell Defendants.
Culley Brief at pp. 43-45. Except there was no finding in favor of the Cockrell Defendants. R.72;
279-280; RE2.014-015. The only orders from the Chancery Court were specific to the Culley
Defendants: their request for a declaratory judgment was granted, they have the legal right to
control the Lake, and NTVPOA must remove the cloud on the title. Id. All other claims were
denied. R.72;280; RE2.015. With no ruling granting the Cockrell Defendants’ counterclaim, there
was nothing for NTVPOA to appeal. Without a judgment or order in favor of the Cockrell
Defendants, there was no judgment or order to appeal. See generally Miss. R. App. P. 4(a) (appeals
are from a judgment or order).
The Culley Defendants ignore this basic rule of appellate law and seem to argue that
because the Chancery Court’s ruling for the Culley Defendants impacts the Cockrells in that the
Cockrells, like the other Natchez Trace Village homeowners, will no longer have to follow the
NTVPOA’s Lake Rules, NTVPOA must take some appeal as to the Cockrells. Culley Brief at p.
44. Under this theory, NTVPOA would have had to join every property owner that is, has, or may
use the Lake to make this appeal valid. NTVPOA respectfully submits that this is not the law.
The Chancery Court issued an opinion that granted relief specific to the Culley Defendants.
They are the only appropriate appellee. The appeal is not moot.
5

II. NTVPOA HAS THE EXPRESS AND IMPLIED RIGHT TO REGULATE THE
LAKE.
The Culley Defendants insist that this case is an open and shut matter because the
Covenants were not attached to the never conveyed and undefined lake area. Alternatively, they
argue for a strict construction and interpretations of two words of the Covenants without (1) giving
any consideration to either the entire set of Covenants and their formation, application, and
enforcement for the last 40 years or (2) the intention of the parties through a fair interpretation of
the Covenants in their entirety. Neither argument is supported by Mississippi law. Stokes v. Bd. of
Dirs. of Lake Cavalier Improv. Com., 654 So. 2d 524, 527 (Miss. 1995) (examining covenants by
considering the entire document and the circumstances of their creation) and PMZ Oil Co. v.
Lucroy, 449 So. 2d 201, 206 (Miss. 1984) (applying equitable estoppel when another has in good
faith relied on another and been misled). The Chancery Court’s decision should be reversed and
rendered.
With no support from the record, the Culley Defendants make the bold claim that “No
representations were made that the residents would control Culley Lake” and “The Culleys did not
grant the NTVPOA the right to control The Lake.” Culley Brief at pp. 12, 14. But the Chancery
Court recognized that Lewis Culley, Jr., (the developer and father of the Culley Defendants)
relinquished all maintenance responsibilities on the Lake to the Board of Governors in 1975.
R.72.268; RE.2.003; R71. 381-84; RE17. The Chancery Court further found that “in accordance
with these responsibilities, NTVPOA began enacting regulations of the Lake in 1979.” R72.268.
RE 2.003. There is no dispute that, for decades, Bethany Culley, mother of the Culley defendants
and prior record owner of the Lake, helped create and vote to adopt rules and regulations for the
NTV subdivision, including the Lake. R71. 435-39; RE21; R72.375-77, 389-399, 512-515, 577-
578; RE17; RE18; RE22; RE31; RE33; RE34.
6

For nearly 40 years, NTVPOA, through its Board of Governors, has been responsible for
the Subdivision’s general regulations and the enforcement of the Covenants, including regulation
of the Lake and activities thereon. R72.267; RE2.002. It is undisputed that these rules and
regulations were all put in place by the Natchez Trace Village’s elected governing body.
NTVPOA, and its Board of Governors, was created by the Culley Developers to enhance Natchez
Trace Village’s property values, in part by repairing and maintaining any facility designed for the
benefit of the property owners and to add to the beneficial use of the subdivision’s property and to
the safety and beauty of the property. R71.234. RE12.004.
The NTVPOA Board of Governors’ authority to regulate property in the NTV subdivision,
including the Lake, went unchallenged for nearly 40 years. Not until a dispute arose regarding a
2010 regulation was that authority challenged. The NTVPOA, and all of the property owners,
relied upon those decades of the Culley Family’s active and passive actions, which repeatedly
acknowledged and advocated the regulation of the Lake. The Culley Family’s intent is clear from
the beginning and outlined in the Covenants along with various regulating documents and
promotional materials in the record. RE8; RE12; RE14; RE16; RE18; RE21; RE22.006-10. RE31;
RE32; RE34. This intent and these documents evidence a clear understanding that the Board of
Governors could regulate the Lake.
How was this intent shown? The opening paragraph of Covenant 12 reads as follows: “The
Board of Governors may make such rules and regulations affecting the subject property as they so
desire, said rules and regulations to include, but are not limited to the following….” R71.234.
RE12.004.
 Covenant 12(c) provides for a “maintenance charge” and a “maintenance bond,”
the purpose of which, among other things, may include but is not limited to. . .
7

“repair and maintenance of any facility designated for the benefit of the proper
owners in the subdivision. R71 234; RE12.004 (emphasis added).
 Covenant 12(d) expressly grants the Board of Governors the “power and authority
to formulate rules and regulations, in addition to those herein set out; “which rules
and regulations in the opinion of the Board of Governors shall add to the beneficial
use” of the property “and shall contribute to the safety and beauty of the property.”
R71.234. RE12.004. (emphasis added).
Paragraph 6(b) of the original Charter of the NTVPOA states that, “The Corporation shall
have the power to own and maintain common green areas, streets, sidewalks, lakes, etc., and
enforce covenants for preserving the appearance of the area. R71; RE16.002 (emphasis added).
Paragraph 6(b) goes on to state that “the corporation shall be operated for the benefit of all the
residents of the community. . . R71.324; RE16.002.
In addition, Covenants 4, 5, 7 and 11 also demonstrate a much broader coverage than that
found by the Chancery Court. By reading the Covenants as a whole, the evidence is overwhelming
that the Culley Family intended for all of the property within Natchez Trace Village to be governed
by the NTVPOA (whether covenants were attached to the property or not). R71.232-35; RE8;
R71.438; RE21; RE18; R72.389, 398-99; RE22.003-005; RE31; RE33; RE39. By focusing only
on 2 words in Covenant 11(“subject property”), the Chancery Court applied the wrong legal
standard. As with any other document, covenants are to be read in their entirety. A. D. Home
Improvements Co. v. Hide-a-Way Lake, 393 So. 2d 1333, 1336 (Miss. 1981).
By looking only at “subject property,” the Chancery Court erroneously concluded that all
the Covenants—the entire document—are limited in application to each lot legal description (of
which 52 lots extend into the Lake) conveyed in each vesting instrument, rather than the
8

subdivision as a whole. The result of this narrow and improper legal interpretation is that all of
the property owners and members of the association now find themselves in an impossible
situation: because the Culley Defendants own the middle of the lake, the NTVPOA only has
authority to regulate the outer portions of the Lake, where the Lake-front property owners’ lots
extend out into the Lake, but with no demarcated boundary that may vary from lot to lot. In other
words, the shoreline and some varying distance—38’ according to one lot owner—is undisputedly
subject to NTVPOA’s regulations but the Culley Defendants now have the authority to regulate
the middle of the lake—a piece of property for which there is no description or demarcation. This
is the result of examining only 2 words of the Covenants rather than construing the document as a
whole.
In light of the wording of the entire document and the circumstances surrounding the
formation, adoption, and application of the Covenants, NTVPOA has the express authority to
regulate the Lake, just as it has continuously done for the last 40 years. Because the Chancery
Court applied the wrong legal standard when reviewing the Covenants, its holding that NTVPOA
does not have the authority, either express or implied, to regulate the Lake should be reversed and
rendered.
III. THE CULLEY DEFENDANTS ARE EQUITABLY ESTOPPED FROM

ASSERTING THAT NTVPOA DOES NOT HAVE THE RIGHT TO GOVERN
THE LAKE.
Although they locked the NTVPOA property owners out of the Lake, the Culley
Defendants admit that all lot owners in Natchez Trace Village “have the perpetual right to use the
entire lake known as Natchez Trace Village Lake.” R71.234; RE 12.004; Culley Brief at p. 18.
Those collective lot owners comprise NTVPOA formed some 47 years ago. RE 22.001; R72.375.
No one disputes that Lewis Culley Jr. relinquished all maintenance responsibilities to the Lake to
9

the NTVPOA Board of Governors 44 years ago. RE17.002; R71.381-84. For 40 years, NTVPOA
has been enacting regulations on the Lake. RE: 2.003; R71.266. As the Chancellor found, “Since
its conception the subdivision’s primary attraction has been a thirty-acre lake.” RE 2.002;
R71.267.
The Chancery Court concluded that “The Board of Governors of NTVPOA has been
responsible for the subdivision’s general regulation for forty (40) years….” RE 2.002; R71.267.
As the Chancery Court found, for well over 30 of those years, the Culley Defendants “failed to
affirmatively assert their rights as record property owners of Culley Lake….” RE 2.011; R72.276.
For decades, Bethany Culley, mother of the Culley Defendants and wife of the developer,
Lewis Culley, Jr., served on the NTVPOA Board of Governors and agreed to and participated in
the adoption of rules and regulations for the subdivision, which included adopting rules and
regulations for the Lake. R71.438-39; RE 21; R72.375-37, 389, 398-399, 512-515, 577-578; RE
22. In fact, the first rules governing the use of the Lake pre-date the NTVPOA; they were posted
on a gate on the dam and on the spillway sometime around 1967-1968. Id. At no time since then,
until 2010, did Lewis Culley, Jr. or Bethany Culley, who preceded her in title to the Lake, or the
Culley Defendants ever protest or object to NTVPOA’s regulation of the Lake. Id. In fact, it was
Bethany Culley herself who played a critical role in broadening the language of the Covenants to
cover lands in the entire Subdivision, even signing minutes confirming the amendment. R71 438;
RE 21.001. This language appears in the NTVPOA’s Yellow Book delivered to all lot owners.3
R72.515-16; RE 33.

3
The Culley Defendants argue that the Chancery Court was correct in disregarding these Rules
and Regulations because they never became official covenants. That argument misses the point.
Bethany’s role applies to equitable estoppel; NTVPOA does not urge them as the adopted
covenants but proof of intent of the Culley Family and representations long relied upon.
10

For nearly 40 years, the Culley Family was silent with regard to all types of rules and
regulations regarding the Lake and even who could and could not use the Lake. 4 This repeated
acquiescence, participation, knowledge and passive acceptance of NTVPOA’s authority to
regulate the Lake clearly evidences the Culley Family’s intent that the NTVPOA regulate the
subdivision’s common areas, including the Lake. These facts should equitably estop the Culley
Defendants from changing their position and conduct over the last 40 years. The Chancery Court
erred when it failed to apply the legal principle of equitable estoppel.
In Mayor of Clinton v. Welch, 888 So.2d 416 (Miss. 2004), the Court explained that
“[w]hen applying the doctrine of [equitable estoppel], the test is whether it would be substantially
unfair to allow a person to deny what he has previously induced another to believe and take action
thereon.” Welch, 888 So.2d at 427 (quotation omitted). In Welch, the City of Clinton knew that the
Welches were constructing a treehouse in their front yard over a 3 to 4-year period. Here, there is
a factor of ten to be applied: the Culley Family acknowledged, participated in, and acquiesced to
the NTVPOA’s regulation of the Lake for over 40 years. If it would be substantially unfair for the
City of Clinton to stop the Welches’ treehouse after only 3 to 4 years, it is definitely “substantially
unfair” for the Culley Defendants to change their position after 40 years.
For well over 40 years, the property owners—who have the “perpetual right to use the
entire Lake”—have properly and continuously exercised their authority to regulate the Lake
through the NTVPOA. The Culley Developers knew that the property owners in Natchez Trace

4
For nearly 40 years, the Culley Family was silent with regard to the limits set on how fishing was
conducted (R71. 411-12 – 1990 Rule banning trot lines; RE 34.002); how many and what types of
fish could be taken from the Lake (R71. 413-14 – 1996 ban on harvesting bass for 2 years; RE
34.003-004); unilateral decisions authorized by the Board to draw down the Lake to make repairs
(R71. 451-52 – 1981 Board of Governors decision to drawdown the Lake; RE 34.005-006); and
even restrictions on who can and cannot use the Lake (R71. 441 – 1990 annual meeting minutes
noting installation of new gates and distributing keys; RE 34.007).
11

Village would and did purchase lots and built houses relying on the existence of the Covenants to
control and regulate the entire subdivision, obviously including the Lake, being its “primary
attraction.” During those years, the NTVPOA spent substantial amounts of time and money
regulating and maintaining the Lake for the benefit of all the property owners, not just the Culley
Family and their ownership of the middle of the Lake. By deeming the Lake subject only to the
whims of the Culley Defendants and not protected by the NTVPOA, the Chancery Court failed to
apply the legal principle of equitable estoppel. Its decision should be reversed and rendered.
IV. THE COURT SHOULD ADOPT THE DOCTRINE OF IMPLIED

RECIPROCAL NEGATIVE EASEMENT.
In the Culley Defendants’ lengthy briefing against the application of the widely accepted
doctrine of Implied Reciprocal Negative Easement, only one basis for non-application of the
doctrine is advanced: that the doctrine “does not ‘fit’ the facts of this case.” Culley Brief at p. 34.
There is no argument that it is not a widely adopted legal doctrine in multiple jurisdictions. There
is no argument that Maryland, upon which Mississippi’s zoning law is based, has adopted the
doctrine. There is no analysis of the 5 factors considered for application of the doctrine nor any
argument that NTVPOA fails to satisfy each of the five factors. To the contrary, the Culley
Defendants’ expert, John Shows, testified that, not only has the doctrine been adopted by numerous
states, but also that the doctrine should be applied in this case to Lots 122 and 123. R.72.683-684;
RE: 46. Those Lake front lots are presently owned by the Culley Defendants. They were acquired
from the Culley Developers in the same manner as the Lake and the dam that created the Lake—
a Culley to Culley conveyance with no covenants attached. R72. 683-684; RE 46. See also H.H.
Holloway Trust v. Outpost Estates Civic Club Inc., 135 S.W. 3d 751 (Tex. Ct. App. 2004) (the
developer, like the Culley developers, attached covenants to lots except for two conveyed to his
12

daughter). Respectfully, since Lots 122 and 123 should be subject to the doctrine, the application
of the doctrine to the Lake should be no different?
Keenly aware of this acknowledgment by their own expert and that the undisputed facts of
this case satisfy each and every prong of the threshold test for application of the doctrine, the
Culley Defendants resort to 10 pages of case summaries in an attempt to distinguish the “easement
found” from the easement sought by NTVPOA. In so doing, the Culley Defendants provide this
Court with a plethora of distinctions without a difference.
For example, the Culley Defendants attempt to distinguish Sanborn v. McLean, 206 N.W.
496 (Mich. 1925). Culley Brief, p. 36. In Sanborn, “Most of the deeds in the subdivision contained
a restrictive covenant…;” “Some lots in the subdivision were sold without restriction;” and “For
upward of 30 years the united efforts of all persons interested have carried out the common purpose
of making and keeping all the lots strictly for residences, and defendants are the first to depart
from them.” Culley Brief at p. 36. The facts in Sanborn, where the doctrine was applied and an
implied reciprocal negative easement found, mirror this case. Nearly all the deeds contained
restrictive covenants. The Lake and Lots 122 and 123 were conveyed Culley to Culley without
covenants attached. For nearly 40 years, until the Culley Defendants first objected, NTVPOA
regulated the Lake. The Culley Defendants’ distinction is simply that Sanborn was about a
commercial development rather than a residential neighborhood. Culley Brief at p. 36. This is truly
a distinction without a difference. It is satisfaction of the threshold test that is outcome
determinative of whether the easement exists, not the nature of the easement itself or the type
of property at issue.
13

The Culley Defendants make similar distinctions without a difference when summarizing
the other cases cited by NTVPOA.5 In each of these cases, the Culley Defendants attempt to
distinguish the “easement found” from the easement sought by NTVPOA. However, these
purported distinctions do nothing more than establish that the doctrine is applicable in any factual
scenario where the threshold factors are met and bolster NTVPOA’s argument that an implied
easement exists as to NTVPOA’s right to regulate the Lake.
The doctrine of Implied Reciprocal Negative Easement mandates that a conveyance by a
developer that imposes restrictions, like subdivision covenants, on land that is included in a general
plan or scheme (such as Natchez Trace Village) creates an implied reciprocal restriction burdening
the remaining lands owned by the developer that are also included in the same general plan or
scheme, if injustice can be avoided only by implying the reciprocal restriction. See Restatement
3d. of Property: Servitudes, § 2.14; R72. 586-89; RE 23. Specifically, the five factors are:
(1) a common owner subdivided property into a number of lots for sale,
(2) the common owner had an intention to create a general scheme of
development for the property as a whole, in which the use of the land was
restricted,
(3) the vast majority of subdivided lots contain restrictive covenants that reflect
the general scheme,

5
For example, the Culleys point out that the cases are commercial rather than residential. Culley
Brief at 36-38 (discussing Scheuer v. Britt, 118 So. 658 (Ala. 1928), Turner v. Brocato, 111 A. 2d.
855 (MD. 1955), Lehman v. Wallace, 519 S.W. 2d 675 (Tex. App. 1974), La Fetra v. Beveridge,
199 A. 70 (N.J. 1938), Land Developers, Inc. v. Maxwell, 537 S.W. 2d 904 (Tenn. 1976). They
also focus on the “restrictions found” in their attempt to distinguish NTVPOA’s cases. Roper v.
Camuso, 829 A. 2d 589 (Md. 2003), H.H. Holloway Trust v. Outpost Estates Civic Club Inc., 135
S.W.3d 751 (Tex. App. 2004), Forster v. Hall, 576 S.E. 2d 746 (Vir. 2003), Warren v. Detlefsen,
663 S.W.2d 710 (Ark. 1984), and Jones v. Cook, 611 S.W. 2d 506 (Ark. 1981). In Maxwell, the
developer, like the Culley developers, provided drawings and proposed unrecorded plats showing
a general plan for the residential development, i.e., marketing materials, to induce the purchase of
lots. R71. 232; RE 8.
14

(4) the property against which application of an implied covenant is sought was
intended to be part of the general scheme of development, and
(5) the purchaser of the lot in question had notice, actual or constructive, of the
condition.
Schovee v. Mikolasko, 737 A.2d 578, 583-84 (Md. Ct. 1999) (citing Turner v. Brocato, 111 A.2d
855, 862 (Md. 1955). In this case, the elements of the Implied Reciprocal Negative Easement
doctrine are clearly satisfied.
a. A common owner subdivided property into a number of lots for sale.
It is undisputed that the Culley Developers subdivided the NTV Subdivision into three
phases and sold individual lots. The record is replete with NTV Subdivision maps and promotional
materials showing the individual lots within the community. R71. 228-232; RE 14; RE 8.
b. The common owner had an intention to create a general scheme of development

for the property as a whole, in which the land use was restricted.
The Culley Developers clearly intended to develop the NTV Subdivision pursuant to a
general scheme in which land use was restricted. The Culley Developers marketed as a
“Community governed by the homeowners . . . highly restricted” and “complete in every detail,”
with the Lake as the primary marketed amenity. R71. 232; RE 8. The promotional materials
provided to prospective lot purchasers emphasized that “[a]s pointed out in our Protective
Covenants, Natchez Trace Village is a planned private community.” R71. 233; RE 8.002. The
promotional materials for the subdivision, identifying Lewis L. Culley, Jr. as the Developer,
further provided that “Each lot purchaser is provided with a copy of the protective covenants
to be filed with his deed. The covenants have been designed to give all lot owners maximum
protection for their investment.” Id.
15

c. The vast majority of subdivided lots contain restrictive covenants that reflect the
general scheme.
As lots were sold in the NTV subdivision, Covenants were attached to each individual
warranty deed in Phase 1 (including 50 Lake-front lots whose lots extend into the Lake) and Phase
3; for Phase 2, they were recorded as a set and attached to the entire plat filed of record. RE 2.004;
R72. 269. The sole exception were the properties retained by the Culley Developers—the Culley-
to-Culley transferred property, which included the Lake and Lake front lots 122 and 123.6 Id. See
also R72. 683-84; RE 46.
d. The property against which application of an implied covenant is sought was

intended to be part of the general scheme of development.
The Lake was emphasized in the promotional materials as the centerpiece of the new NTV
subdivision. The Chancery Court even referred to the Lake as “the subdivision’s primary
attraction.” R72. 267; RE 2.002. The Lake is expressly referenced in the Covenants attached to
each lot deed. Rights in the Lake are granted to each NTV subdivision lot owner. See e.g., R71.
275-80; RE 40. The Covenants are titled in large, capitalized bold font, “PROTECTIVE
COVENANTS AFFECTING NATCHEZ TRACE VILLAGE,” indicating coverage of all lots and
common areas in the subdivision. R71. 234; RE 12.004. The Covenants themselves use the term
“said property”, “subject property” and the “lot conveyed herein” with no uniformity and in
various instances simply refer to general areas of the subdivision. Id. The Covenants touch and
concern the ability of property owners to erect structures on property that extends into the Lake
and gives NTVPOA the authority to regulate said structures. Id. at Covenant 12(a).

6
Again, the Culley Defendants’ own expert testified that an implied reciprocal easement should
apply to Lots 122 and 123.
16

e. The purchaser of the lot in question had notice, actual or constructive, of the
condition.
Ownership of the Lake has been in the Culley Family since Natchez Trace Village was
marketed and developed decades ago. For nearly 40 years, NTVPOA has regulated the Lake. RE
34; RE 39. The Culley Family through decades of active and passive conduct, has acknowledged
and acquiesced to NTVPOA’s right to regulate the Lake. R72. 389, 98-99; RE 41; RE 42; R71.
441; RE 31; RE 39; RE 21; RE 17. Indeed, Lewis L. Culley III testified that the Culley Defendants
knew NTVPOA had regulated the Lake for decades. NTVPOA has standing to pursue enforcement
of this right.7 R72. 752-53; RE 24.001-002
The undisputed facts of this case satisfy every element of the doctrine of Implied
Reciprocal Negative Easement. The Chancery Court erred when it failed to apply the doctrine’s
legal standard, and its judgment should be reversed and rendered.
CONCLUSION
“When I am in the water, I will do as we please on our land.” – Lewis L. Culley, III
R72.419; RE: 37
The statement above captures the unworkable quandary that the Chancery Court’s ruling
has not only created but embraced. The Culley Defendants unabashedly state that they will do as
they please on the Lake, even on parts of the Lake that they do not own but instead belong to the
over 50 Lake-front property owners. To accept this position—and the Chancery Court’s ruling—
is to embrace the illogical theory that the Culley Developers intended for the Lake’s shoreline and

7
Generally, an action to enforce restrictive covenants can be brought by anyone for whose benefit
the covenant was made.” Long Meadow Homeowners' Ass'n v. Harland, 89 So. 3d 573, 590 (Miss.
2012). To support this, this Court cited a number of cases, including Anderson v. New Prop.
Owners' Ass'n of Newport, Inc., which found that a homeowners' association had standing to sue
to enforce a covenant. Anderson v. New Prop. Owners' Ass'n of Newport, Inc., 122 S.W.3d 378,
384 (Tex. Ct. App. 2003).
17

a varying amount of feet into the Lake to be governed by NTVPOA but not the middle of Lake,
for which there is no description or demarcation.
Surely that is not what the law or equity wants or would allow. And it isn’t what the
Covenants—read as a whole—provide. But even if the documents were not clear, the undisputed
facts support a finding of equitable estoppel or the application of the doctrine of Implied Reciprocal
Negative Easement. The Chancery Court left the law and equity behind, subjecting NTVPOA to a
ruling that defies functionality and logic.
The Chancery Court correctly noted in its opinion that the issue in this case is whether
NTVPOA has either an express or implied right to regulate the Lake. However, the Chancery Court
misapplied the appropriate legal standards when it answered this question. As a result of this
improper legal application, certain lots (which the Culley Defendants’ own expert testified were
subject to an implied easement) and common areas which make up areas long subject to NTVPOA
regulations are simply unrestricted islands within the subdivision.
NTVPOA has the right to regulate the usage of NTV subdivision common areas, including
the Lake, as evinced by the language of the Covenants themselves and the nearly 40 years of
regulation by NTVPOA, all with the undeniable knowledge, agreement, assistance and
acquiescence of the Culley Family. For the foregoing reasons, and to avoid injustice, this Court
should reverse and render the lower court’s ruling and find that NTVPOA, either expressly or
impliedly, has the authority to regulate NTV subdivision common areas, including the Lake.
18

THIS the 11th day of February 2019.

OWNER’S ASSOCIATION, INC.
By: /s/ Barry D. Hassell

OF COUNSEL:
Telephone: (601) 856-7200
Facsimile: (601) 353-6235

Telephone: (601) 987-4800
Facsimile: (601) 987-6600
ATTORNEYS FOR APPELLANTS
19

I, Barry D. Hassell, hereby certify pursuant to M.R.A.P 25(d) that on this day I
electronically filed the foregoing Reply Brief of Appellant with the Clerk of the Court using the
MEC system, which sent electronic notification of such filing to the following:

P.O. Box 1631

Butler Snow LLP
P.O. Box 6010

Post Office Box 404
THIS the 11th day of February, 2019.

Barry D. Hassell
20
E-Filed Document Dec 24 2018 09:45:49 2018-CA-00425 Pages: 55

No. 2018-CA-00425
NATCHEZ TRACE VILLAGE PROPERTY APPELLANT

OWNERS ASSOCIATION, INC.
V. CIVIL ACTION NO. 2018-CA-00425
LEWIS CULLEY, III, NANCY CULLEY

AND BETHANY CULLEY APPELLEES
APPEAL FROM THE CHANCERY COURT

OF MADISON COUNTY, MISSISSIPPI
CAUSE NO. 17-0791
BRIEF OF APPELLEES LEWIS CULLEY, III, NANCY CULLEY

AND BETHANY CULLEY
(Oral argument not requested)
Gene D. Berry (MSB #2459)

Attorney at Law
Post Office Box 1631
Telephone: 601-898-0142
Facsimile: 601-898-0144
genedberry@berryfirm.net
Certificate of Interested Parties
The undersigned counsel of record certifies that the following listed persons have an interest
in the outcome of this case. These representations are made in order that the Justices of the Supreme
Court and/or Judges of the Court of Appeals may evaluate possible disqualification or recusal.
1. Natchez Trace Village Property Owners Association, Inc., Plaintiff/Appellant.
2. Barry D. Hassell, Esq., and Alexander L. M. Bondurant, Esq., Copeland, Cook, Taylor
and Bush, and Steven H. Smith, Esq., Attorneys for Plaintiff/Appellant.
3. Lewis Culley, III, Nancy Culley and Bethany Culley, Defendants/ Appellees.
4. Gene D. Berry, Attorney for Defendants/ Appellees, the Culleys.
5. Allen Cockrell and Paige Cockrell, Defendants
6. William P. Thomas, Esq., Butler Snow, LLP Attorney for the Cockrells.
7. Honorable James C. Walker, Madison County Chancery Court Judge
So Certified, this the 24th day of December, 2018.
s/ Gene D. Berry
Gene D. Berry, MSB #2459
i
Table of Contents
Certificate of Interested
Parties........................................................................................................................................... i
Table of Contents..........................................................................................................................ii
Table of Authorities.....................................................................................................................iv
Statement Regarding Oral

Argument....................................................................................................................................viii
Statement of
Issues............................................................................................................................................ 1
Statement of Assignment............................................................................................................. 2
Statement of
Case.............................................................................................................................................. 3
Summary of the
Argument................................................................................................................................... 8
Statement of
Facts........................................................................................................................................... 10
Argument................................................................................................................................. 20
I. The Standard of Review................................................................................... .. 20

.
II Mississippi law is clear- The owner of real property on which a man-made lake sits
owns and controls the lake. ................................................................................ 22
III. The NTVPOA does not own Culley Lake and no statute, covenant or
agreement gives it the right to restrict activities on the Lake............................... 23
IV. The attempt to restrict the Culleys use and enjoyment of their real property must be
strictly construed................................................................................................... 24
V. The right to use Culley Lake or contributions to maintenance of the Lake

do not grant the right to control the lake................................................................ 27
VI. The Chancery Court properly rejected equitable estoppel.................................. 28
ii
VII. The NTVPOA cannot gain control of property it does not own by waiver......... 34
VIII. The theory of Implied Reciprocal Negative Easement does not fit the facts of
this case.............................................................................................................. 34
IX. This appeal is moot– the judgment is final as to the Cockrells – NTVPOA cannot
selectively enforce its alleged rules...................................................................... 43
Conclusion................................................................................................................................ 45
Certificate of Service................................................................................................................ 46
iii
Table of Authorities
Cases
A.A. Home Improvement, Co. v. Hide-A-Way Lake Club, Inc., 393 So. 2d 133, 135 (Miss.
1981)............................................................................................................................................ 26
Andrews v. The Lake Serene Property Owners Assoc., Inc. 434 So. 2d 1328, 1333 (Miss.
1983)............................................................................................................................................ 25
Armstrong Tire & Rubber Co. v. Franks, 137 So. 2d 141, 147-48 (Miss. 1962)...................21, 33
B. C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491 (Miss. 2005).............................28
Belager-Price v. Lingle, 28 So. 3d 706,713 (Miss. App. 2010)..................................................26
Black v. Williams, 417 So. 2d 911, 912 (Miss. 1982)........................................................... 22, 23
Bryan v. Holzer, 589 So. 2d 648, 659 (Miss.1991)..................................................................... 22
Collins v. Rodgers, 938 So. 2d 379, 385 (Ala. 2006).................................................................. 35
Cox v. Trustmark Nat. Bank, 733 So. 2d 353, 358 (Miss. App. 1999)....................................... 24
Crenshaw v. Graybeal, 597 So. 2d 650, 652 (Miss. 1992)......................................................... 22
Dacus v. Sillers, 557 So. 2d 486, 502 (Miss 1990).......................................................................23
David M. Cox, Inc., v. Pitts, 29 So. 3d 795,804-05 (Miss. App. 2009)...................................... 20
EB , Inc., v. Smith, 757 So. 2d 1017, 1021 (Miss. App. 2000).................................................... 28
Elchos v. Haas, 178 So. 3d 1163, 1187 (Miss. 2015).................................................................. 21
Fernado v. Sapukotana, 179 So. 3d 1105, 1111 (Miss. 2015).................................................... 20
First Investors Corp. v. Rayner, 738 So.. 2d 228, 233 (Miss. 1999)........................................... 28
Forster v. Hall, 576 S.E. 2d 746, 747 (Vir. 2003)....................................................................... 41
Fredricks v. Malouf, 82 So. 3d 579, 581 (Miss. 2012)....... ....................................................... 34
Galbreath v. Miller, 426 S. W 2d 126, 128 (Kent. App. 1968).................................................. 35
Gentry v. Stricklin, 461 S.W. 2d 580, 581 (Ark. 1971).............................................................. 44
iv
Goode v. Village of Woodgreen Homeowners Association, 662 So. 2d 1064, 1074
(Miss.1995)................................................................................................................................ 30
Griffin v. Tall Timbers Development, Inc., 681 So. 2d 546, 551 (Miss. 1996) ........................ 26
Harbor Ventures, Inc. v. Dalton, 2012 W.L. 1810205 (Tex. App.)........................................ 35
Hall v. Hall, 134 So. 3d 822, 825 (Miss. App. 2014) ................................................................ 20
H. H. Holloway Trust v. Outpost Estates Civic Club, Inc., 135 S. W. 3d 751, 756 (Tex. App.
2004)........................................................................................................................................... 41
Hinds County Board of Supervisors v. Leggette, 833 So. 2d 586,590 (Miss. 2002)................... 44
Hudson v. Moon, 732 So. 2d 927, 932 (Miss. 1999).................................................................. 34
In Re Boundaries of City of Laurel, 922 So. 2d 791,795 (Miss. 2006)....................................... 21
Johnstone v. Bettencourt, 16 Cal. Rptr. 6, 195 Cal App. 2d 538, 541 (1961)............................. 44
Jones v. Cook, 611 S.W. 2d 506, 508 (Ark. 1981)...................................................................... 42
Kelso v. Robinson, 161 So. 135, 136-37 (Miss. 1935)............................................................... 31
Kephart v. Northbay Prop. Owner’s Assoc., 134 So. 3d 784, 786 (Miss. App. 2013).............. 25
Kemp v. Lake Serene Prop. Owners Assoc., Inc., 256 So. 2d 924, 926 (Miss. 1971).............. 25
Kinchen v. Layton, 457 So. 2d 343, 345-46 (Miss. 1984).......................................................... 24
Knight Properties, Inc. v. State Bank & Trust Co., 77 So.3d 49, 497 (Miss. App. 2011).......... 28
LaFetra v. Beveridge, 199 A. 70, 74 (N.J.1938)......................................................................... 38
Lake Castle Lot Owners Assoc., Inc., v. Litsinger, 868 So. 2d 377, 380 (Miss. App. 2004).... 25
Land Developers, Inc. v. Maxwell, 537 S. W. 2d 904, 912 (Tenn. 1976)................................. 40
Lehmann v. Wallace, 510 S. W. 2d 675, 677-78 (Tex. App. 1974)........................................... 41
Lindsey v. Shaw, 49 So.2d 580, 584 (Miss. 1950)..................................................................... 27
Long Meadow Homeowner’s Assoc., Inc. v. Harland, 89 So. 3d 573, 578-79 (Miss. 2012)..... 29
v
Mauck v. Columbus Hotel Co., 741 So. 2d 259, 265-66 (Miss. 1999)....................................... 28
Massey v. Lambert, 84 So.3d 846, 848 (Miss. App. 2012)........................................................ 35
Mayor & Board of Aldermen, City of Clinton v. Welch, 888 So. 2d 416, 424-28 (Miss.
2004)............................................................................................................................................ 32
McCurdy v. Standard Realty Corp., 175 S.W.2d 28, 30 (Ky. 1943).......................................... 41
McDonald v. Board of Mississippi Levee Commissioners, 646 F. Supp. 449, 466 (N. D. Miss.
1986) aff’d 832 F. 2d 901 (5th Cir. 1987).................................................................................. 27
McDowell v. Zion Baptist Church, 203 So. 3d 676, 686-87 (Miss. 2016)................................... 27
McKenrick v. Saving Bank of Baltimore, 197 A. 580, 586 (Md. 1938)....................................... 37
Miller v. Mims, 150 So. 191, 191 (Miss.1933)............................................................................ 24
Monaghan v. Blue Bell, Inc., 393 So. 2d 466, 467 (Miss. 1980)................................................ 44
Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)............................................................ 22
O’Neal v. Blalock, 220 So. 3d 234, 240 (Miss. App. 2017)........................................................ 35
Phillips v. Kelley, 72 So. 3d 1079, 1084 (Miss. 2011) ............................................................... 44
Pittman v. Lakeover Homeowners’ Assoc. 909 So. 2d 1227, 1229-30 (Miss. App. 2005)......... 25
PMZ Oil v. Lucroy, 449 So. 2d 201, 203-04 (Miss. 1984).......................................................... 30
Powell v. Campbell, 912 So.2d 978, 982 (Miss. 2005)............................................................... 28
Rawaid v. Murguia & Arias Grocery, LLC., 124 So. 3d 118, 120 (Miss. App. 2013).......... 25,26
Roper v. Camuso, 829 A. 2d 589, 592 (Md.. 2003)................................................................... 39
Ross v. Braswell, 511 So. 2d 492, 495 ( Miss. 1987).................................................................. 34
Rowell v. Turnage, 618 So. 2d 81, 85 (Miss. 1993)....................................................................27
Ryals v. Pigott, 580 So. 2d 1140, 1149 (Miss. 1990).................................................................. 23
Sanborn v. McLean, 206 N.W. 496, 497 (Mich. 1925)............................................................... 36
vi
Scheuer v. Britt, 118 So. 658, 659 (Ala. 1928)............................................................................ 36
Schovee v. Mikolasko, 737 A. 2d 578, 589 (Md. 1999).............................................................. 38
Shoneys, Inc. v. Cooke, 353 S. E. 2d 300, 304 (S. C. App. 1985).............................................. 35
Southern Bell Tel. & Tel. Co. v. City of Meridian, 131 So. 2d 666, 675 (Miss. 1961)............... 34
Stanton v. Bryant, 55 Miss. 261, 275 (1877)...............................................................................32
Stokes v. American Central Ins Co., 52 So. 2d 358,359 (Miss. 1951)..................................... 33

.
Stokes v. The Board of Directors of LA CAV Improvement, Co., 654 So. 2d 524, 528-29 (Miss.
1995)......................................................................................................................................... 26
Stockstill v. Gamill, 943 So. 2d 35, 43 (Miss. 2003).................................................................. 18
Skyline Woods Homeowners Assoc., Inc. v. Broekemeier, 758 N.W. 2d 376, 390 (Neb.
2008)........................................................................................................................................... 42
The Bellemeade Co. v. Priddle, 503 S. W. 2d 734, 737-38 (Kent. App. 1974)......................... 35
Tubb v. Monroe County Elec. Power Assoc., 912 So. 2d 192, 196 (Miss. 2005)...................... 27
Turner v. Brocato, 111 A. 2d 855, 860 (Md. 1955).................................................................... 37
Turner v. Morris, 17 So. 2d 205, 206 (Miss. 1944).................................................................... 27
Ute Park Summer Homes Association, Inc. v. The Maxwell Land Grant Co., 427 P. 2d 249, 252
(N.M. 1967) ................................................................................................................................ 43
Walters v. Colford, 900 N. W. 2d 183, 191 (Neb. 2017)............................................................ 35
Warren v. Detlefsen, 663 S.W.2d 710, 711 ( Ark. 1984)............................................................ 42
White Cypress Lakes Development Corp. v. Hertz, 541 So. 2d 1031, 1032 (Miss. 1989)........ 31
Rules and Statutes
Rule 16, MRCP........................................................................................................................... 28
Section 59-21-1(m) , Miss. Code Ann ..................................................................................... 23
Secondary authority
Restatement (Third) of Property (Servitudes) § 2:14 (2000)....................................................... 34

vii
Lewis Culley, III, and his sister, Bethany Culley, own title to the approximate thirty (30)
acre lake referred to as “Culley Lake.” There are no restrictive covenants recorded on Culley Lake.
The Chancery Court properly found that the Natchez Trace Village Property Owners Association,
Inc., (“NTVPOA”) did not have authority to ban skiing, tubing, and the use of jet skis on the Lake
or to otherwise control Culley Lake. The NTVPOA owns no part of the lake. No case law requires
that an owner’s association control recreational amenities associated with a residential
neighborhood.
The theory of “implied reciprocal negative easement” has never been adopted by the
Mississippi courts. The theory has only been used by courts in other states with “great caution” and
has been applied in limited situations to prohibit commercial development in residential
neighborhoods and to enforce uniform building requirements on lots in such neighborhoods. None
of the cases cited by the NTVPOA reach the extreme outcome sought in this appeal, i.e., permitting
a non-owner of real property to control and restrict activities on recreational amenities associated
with a neighborhood. The Chancery Court was correct to deny such unprecedented relief.
The appeal is moot. The NTVPOA did not appeal as to the Cockrell defendants who are
free to ski, tube and jet ski on Culley Lake, the exact conduct the NTVPOA seeks to prohibit by this
appeal. The NTVPOA is bound by the final judgment and cannot engage in selective enforcement
against other residents. Oral argument is unnecessary.
viii
STATEMENT OF THE ISSUES
1. The Chancery Court properly found that the Culleys own title to Culley Lake; that there
are no restrictive covenants recorded on Culley Lake; that restrictive covenants attached to the deeds
to lots in the neighborhood govern the lots and not the lake, and that the restrictive covenants do not
grant the NTVPOA the right to control Culley Lake or to prohibit water skiing, tubing or jet skis on
the lake --which activities have been enjoyed on the lake since its inception over sixty years ago.
2. The Chancery Court properly rejected the equitable estoppel argument. Among other
reasons, the Chancery Court properly found that there was no proof of detrimental reliance which
findings are inherently factual and entitled to great deference. The NTVPOA cites no case law which
supports control of Culley Lake as a result of “waiver” or “estoppel.”
3. The Chancery Court properly rejected the theory of “implied reciprocal negative
easements.” Such theory is limited to extreme cases and has not been adopted in Mississippi. Such
theory was not proven by proven by clear and convincing evidence as is required by the courts in
others states in the cases where it is applied with “great caution.” The cases cited by NTVPOA do
not fit the facts of this case. The theory has been used in limited situations to block commercial
development in residential subdivisions or to enforce uniform building requirements on lots in such
neighborhoods.
4. This appeal is moot. The NTVPOA did not appeal as to the Cockrell defendants.
They contented that the NTVPOA did not have authority to make rules prohibiting skiing, tubing,
and jet skis on the Lake and that as lot owners they had the right to engage in those water sports as
a part of their right to use Culley Lake. By failing to appeal as to the Cockrells, the NTVPOA is
barred by a final judgment from enforcing such rules against the Cockrells. The NTVPOA cannot
engage in selective enforcement of its alleged rules against other residents.
1
STATEMENT OF ASSIGNMENT
The Chancery Court followed Mississippi law. The owner of real property controls it.
Attempts to limit the free exercise of real property are strictly construed. This is especially true of
any attempt to imply covenants that are not expressed. There are no urgent issues of broad public
importance.
The NTVPOA is overly dramatic and argues a false sense of urgency to try to create a
justification to reverse the sound findings of the Chancery Court. The Culleys have owned Culley
Lake for over sixty years. The residents of Natchez Trace Village have enjoyed boating, water
skiing, tubing, jet skis, fishing and other recreational activities on the lake for many decades. The
only controversy is that created by the efforts of NTVPOA to prohibit the Culleys and other
residents from enjoying the Lake. No case law requires that an owner’s association control amenities
associated with a neighborhood. The theory proposed by the NTVPOA has only been used in other
states in narrow situations to prohibit commercial development in residential areas and to require
uniform building standards on lots in such neighborhoods. The theory is used with extreme caution
and the cases cited by NTVPOA do not fit the facts of this case.
The appeal is moot. There was no appeal as to the Cockrell defendants and the judgment is
final. The Cockrells are free to engage in the water sports this appeal purports to stop. The NTVPOA
cannot engage in selective enforcement. This case may be assigned to the Court of Appeals.
2
STATEMENT OF THE CASE
a. The nature of the case.
The Culleys have owned Culley Lake and paid taxes on the lake for over sixty years. (Culley
R. E. 15; C.P. 713). 1 The Culleys have the fundamental right to control and use the real property
they own. There are no restrictive covenants recorded on Culley Lake. The NTVPOA does not own
any of the lake and has no right to prohibit the owners from enjoying the lake.
In deeds to the purchasers of lots in Natchez Trace Village, the Culleys granted the purchasers
of the lots the right to use Culley Lake. Since the inception of the neighborhood, the Culleys have
allowed the owners of lots in the neighborhood (and their families) to use Culley Lake. For many
decades, this use has included fishing, boating, water skiing, tubing and jet skis.
When a neighborhood is developed with recreational amenities in or near the neighborhood,
no case law requires that the owner’s association control such amenities. (e.g., lakes, golf courses,
or other recreational features).
The NTVPOA has never held title to any land. The corporation was formed over a decade
after the subdivision was first developed and acts as the successor to the “Board of Governors” that
was created by virtue of the covenants attached to individual deeds to the lots in the Natchez Trace
Village. The covenants set forth uniform building requirements and other restrictions for the lots in
the neighborhood. No language in the covenants grants the Board of Governors a right to prohibit
skiing, tubing or jet skis on Culley Lake.
1
The citations to the record are to the single record, MEC #72, and are cited as “C.P. _”
The Culley record excerpts are “Culley R.E. _.” Trial court filings and orders are C.P. 1-298.
Testimony was given on three days: Motion hearing on August 30, 2017, and trial on December
4 and 6, 2017. Cites are to the August Motion hearing C.P. 299-478; the December trial C.P.479-
805. The trial exhibits are at MEC #71, 1-531, and are cited as “Exhibits _”.
3
The NTVPOA cannot gain control of the Culley’s real property by enacting “lake rules” for
the neighborhood residents. The lake rules for residents related to fishing ( e.g.,“catch and release”),
making sure guests were accompanied by a resident when they were on the lake, flotation devices,
using water craft in a courteous manner and other similar rules. The Culleys never complied with
all the lake rules and treated the lake like they owned it. They have resisted any effort by the
NTVPOA to restrict to restrict boating, skiing, tubing or jet skis on the Lake. The first “temporary”
rule attempting to prohibit such conduct was not enacted until 2010 after many decades of skiing,
tubing and jet ski use on the Lake. (Exhibits 432). The Culleys steadfastly refused to comply with
the rule prohibiting “water-skiing, towing, tubing, and personal water craft (jet skis)” first published
to the residents in October 2011. This resulted in litigation being filed in May 2014.2
B. The course of the proceedings and the disposition in the court below.
On August 18, 2017, the NTVPOA filed a Motion for a Temporary Restraining Order or
Preliminary Injunction (“Motion for TRO”) in Madison County Chancery Court against Lewis
Culley, III, his wife Nancy Culley, Bethany Culley, Allen Cockrell, Paige Weeks Cockrell and John
Does 1-5. (C.P.21). The Motion for TRO sought to stop the Culleys and Cockrells from violating
“lake rules” which prohibited skiing, tubing or jet skis on Culley Lake. (C.P. 41). In the Motion,
the NTVPOA inserts in brackets [ “Big lake and dam”] within quotations from the covenants to
2
In May 2014, shortly before the Memorial Day weekend and the start of summer, the
NTVPOA announced (without consulting the Culleys) that it would draw down the lake for
repairs. (C.P. 723; Notice, Exhibits 421). At the same time, the NTVPOA attempted to “remind
everyone” that “water-skiing, towing, tubing and personal water-craft (jet skis) are not allowed
on the lake.” (Exhibits 422). The Culleys filed suit on May 15, 2014 (Cause #2014-456-B). That
case was dismissed because the Estate of Bethany Culley was still pending. After the dismissal,
the Culleys and Cockrells continued to use jet skis. The NTVPOA did nothing and then tried to
reopen the 2014 case which motion was denied. No appeal was taken. The NTVPOA filed the
instant case in August 2017.
4
make it appear as if the covenants grant authority for the NTVPOA to control the lake. (C.P. 27). The
Motion made various allegations spanning from the 1960's to present. (C.P. 26-35). The Culleys filed
a response. (C.P. at 119). On August 30, 2017, a hearing was held before the Chancery Judge. (C.P.
299-478). After hearing the witnesses and reviewing the exhibits offered at the hearing, the
Chancery Court entered an order denying the Motion and set the matter for a trial. (C.P. 182).
The Culleys and Cockrells filed an Answers and Counterclaims. (C.P. 184)3 (C.P. 176). A
Pre-Trial Order was entered setting forth the contentions of the parties for trial which order controls
the subsequent course of the action. (Culley R.E.1; C.P. at 255) (Rule 16, MRCP). Many of the
NTVPOA allegations in the Motion for TRO were not included in the Pre-Trial Order. The
NTVPOA contentions at trial were that it had the right to control Culley Lake, make rules that
control and govern the Lake and to issue fines to residents for violations of lake rules. (C.P. at 256).
The Culleys contentions were set forth in the Pre-Trial order. (Culley R. E.1; C.P.256-57).
In the Pre-Trial order, the Cockrells contended they purchased a lot on Culley Lake in 2007; that
they chose Culley Lake because they wanted a place to enjoy water sports (water skiing, tubing, and
/or jet skiing); that prior to purchasing on Culley Lake they enjoyed water sports on the Lake for
many years; that as a part of their purchase they had a right to use the Lake and that the right to use
includes the right to engage in water sports. (Culley R. E. 1; C.P. 257-58).
3
The Culleys asked for declaratory and other relief. They discovered that the NTVPOA
had collected over $153,000.00 from Rice Road, LLC., as payment for damages to Culley Lake.
Lake Remediation Agreement. (Exhibits 509). Even though they owned title to the lake, the
Culleys were not consulted and did not sign the Agreement. The funds were collected to
remediate the Lake but even after four years the funds have not been used by the NTVPOA for
that purpose. Mary Watkins, Treasurer of NTVPOA, told a resident of the neighborhood that if
the Culleys won the pending litigation that the funds would not be used to remediate the lake and
would be distributed to residents of the subdivision. (C.P.701 ) The Culleys asked that the funds
be used for remedation of the lake or given to the Culleys to use for that purpose. The Chancery
court held that the claim was not ripe. (Culley R. E 2; C.P.279).
5
A trial was held on December 4 and 6, 2017. By Opinion and Judgment, dated February
20, 2018, the Chancery Judge made factual findings and legal conclusions which included the
following:
... The NTVPOA does not hold title to any land withing the subdivision....
....
....Save for several lots that extend a few feet into the lake, the Culley
family has retained exclusive ownership of Culley Lake and pay the property taxes
on such....
....
....The lake has been continually used by residents and nonresidents alike for
fishing, waterskiing, boating, and other recreational activities.....
.....
....In Phase 1 and 3 of the development of Natchez Trace Village, the

covenants are attached to each individual warranty deeds, with the exception of a
select few lots that were transferred from Culley to Culley. In Phase 2, the covenants
were recorded as a set that attached to the entire platted area.....
....
....No covenants are attached to Culley Lake nor have they ever been
attached....
.....
.....First, NTVPOA argues that Covenant 11 vests the Board of Governors

with the authority to regulate the lake. The pertinent language provides that “[t]he
Board of Governors may make such rules and regulations affecting the use of the
subject property as they so desire,” which rules and regulations in the opinion of the
Board of Governors shall add to the beneficial use of the subject property and shall
contribute to the safety and beauty of the property. Covenant 11....
.....
.... In looking at the plain language of this covenant, it is clear that the term
“subject property” refers to the property to which the covenant is attached. In other
words, “subject property” describes the land actually conveyed in the deed. Given
that it is undisputed that these covenants were never recorded on the Culley Lake
property owned by the Culleys, it necessarily follows that “subject property” does not
describe the lake. To find otherwise would require an unnecessarily broad reading of
this provision that would be contrary to the principles of covenant interpretation.....
....
6
....The Court believes that arbitrarily extending the covenants express reach,
would instead lead to an absurd result. Thus, the Court finds that Covenant 11 is
inapplicable to Culley Lake and does not grant the Board of Governors an express
right to regulate....
(Culley R. E. 2; C.P. 272-280) (the paragraph 11 referred to by the Chancery Court is paragraph 12
in the recorded covenants).4
The Chancery Judge rejected the application of equitable estoppel. (Culley R. E.2; C.P. 276).
In addition to other reasons, the Chancery Court found that the NTVPOA “did not meet its burden
in proving that it changed its position to its detriment, and therefore, this doctrine is inapplicable in
this case.”(Culley R. E.2; C.P. 276). Likewise, the Chancery Court rejected the theory of implied
reciprocal negative easement finding, among other things, that “the Court was not presented with
any persuasive evidence that the developers ever intended the lake to be subject to the covenants or
restrictions.” (Culley R. E.2; C.P. 278).
The Chancery Court concluded that “the Culleys have the legal right to control the real
property that they hold fee simple title to, known as Culley Lake, subject to the perpetual right to use
of Culley Lake by the grantee of deeds to lots in the subdivision.” (Culley R. E.2; C.P 280). The
Chancery Court denied any other claims, including any not discussed in the opinion. (C.P. 280).
A Notice of Appeal was filed as to the “Culley defendants.”(Culley R.E. 3; C.P. 289). No
appeal was filed as to the Cockrell defendants. The Notice of Appeal stated that the appeal was as
4
The Chancery Court used the paragraph numbers on the set of covenants printed in the
NTVPOA booklet. (Booklet, Exhibits 204). As discussed later in this brief, the NTVPOA in the
booklet included alleged amendments to the covenants that are not in the covenants as recorded
with the deeds. The NTVPOA believed the booklet somehow advanced its cause. The paragraph
numbers are different and there are changes, none of which help NTVPOA. The Chancery Court
properly rejected the arguments under either the invalid amendments or the recorded
covenants.(Culley R. E. 2; C.P. 274). NTVPOA did not get changes signed by 2/3 of the owners
and recorded as required by the covenants to make amendments. Id.
7
to the finding that “the NTVPOA does not have the authority to regulate Culley Lake and that the
Culley defendants have the legal right to control the real property that hold fee simple title to, known
as Culley Lake, subject to the perpetual right of use of Culley Lake by the grantees of deeds to lots
in the subdivision.” NTVPOA acknowledges that its appeal is limited. (NTVPOA Brief at 5).
SUMMARY OF THE ARGUMENT
The Culleys have owned and paid taxes on Culley Lake for more than sixty years. There
are no covenants recorded on Culley Lake. In each phase of development of Natchez Trace Village,
the covenants apply to the lots being conveyed and set forth uniform building specifications and
other restrictions on the lots in the neighborhood. The deeds include a legal description of the lot
conveyed and state:
11. It is understood and agreed that the land conveyed herein shall be bound
by the rules and regulations formulated by the Board of Governors of Natchez Trace
Village,...
(Culley R. E. 4; C.P.234, 491-93) (emphasis added.)
The Chancery Court found that the covenants govern the lot and not Culley Lake. The
NTVPOA attempts to prohibit the Culleys from freely using the real property they own. Mississippi
law favors the free and unrestricted use of real property. Any attempt to restrict use of real property
is strictly construed. This is especially true of any attempt to imply covenants that are not expressed.
The neighborhood residents were given a right to use the lake, not control the lake. The
Culleys have always welcomed the owners to use the lake. The Culleys are not restricting use of the
lake. The attempt to prohibit water sports on the lake conflicts with the lot owner’s right to use the
lake. That attempt must also be strictly construed.
No case law cited by NTVPOA supports the unprecedented outcome it seeks. When a
neighborhood is developed with recreational amenities in or near the neighborhood, no case law
8
requires that the owner’s association control such amenities. Lakes, golf courses, health clubs or
other amenities can be located in a subdivision and be owned and controlled by the developers or
others. Even if the amenity is the “primary attraction” or “centerpiece” of the subdivision, such does
not grant the owner’s association the right to control the amenity.
The right to use does not mandate that the owner’s association gets control. Mississippi law
is clear that the holder of a right to use real property does not thereby get free reign over the land.
The Chancery Judge correctly rejected equitable estoppel which is applied with caution. The
findings of the Chancery Judge are entitled to great deference. The Chancery Court specifically
found that there had been no change of position in reliance by the NTVPOA.
The theory of implied reciprocal negative easement has not been adopted by the Mississippi
courts. It has only been used in other states in narrow situations to prohibit commercial development
in residential neighborhoods and to maintain uniform building standards on lots in such
neighborhoods. No case cited by NTVPOA is even remotely close to the facts of the instant case.
The theory requires proof by “clear and convincing evidence” and is only used with “extreme
caution.”
This appeal is moot. The judgment is final as to the Cockrell defendants. They are free
to engage in skiing, tubing, and jet skis on the Lake. It is indeed ironic that the NTVPOA claims that
it is in a “profound quandary” and “untenable situation” yet it chose not to appeal a final judgment
in favor of persons who allegedly committed multiple violations of the “lake rules” it claims are so
critical to its ability to operate. The NTVPOA cannot engage in selective enforcement of its alleged
rules against others. The Chancery Court should be affirmed.
9
STATEMENT OF THE FACTS
Culley Lake is an approximate thirty-acre lake located in Madison County adjacent to the
Natchez Trace Parkway and Barnett Reservoir.5 The land on which the lake is situated was owned
by Lewis Culley, Sr., and Lewis Culley Jr., the grandfather and father of Lewis Culley, III, and his
sister, Bethany. The Culleys have owned fee simple title to Culley Lake for over sixty years. Lewis
Culley Jr., owned Culley Lake until shortly before his death in 1994 when he conveyed it to his wife,
Bethany W. Culley, along with other land. (Culley R. E. 5 and 15; C.P. 714; Exhibits 358). Lewis
Culley, III, and his sister, Bethany Culley, acquired title as heirs of their mother’s estate who passed
away in 2012. (Estate order, C.P. 47). The Culleys also inherited lots on the lake from their mother.
Lewis Culley, III, and his family live on the lake. (C.P. 710).
The Culleys have always paid the real estate taxes on Culley Lake. (Stipulation, C.P. 411).
No restrictive covenants are recorded on the Lake. 6 The NTVPOA does not own any of Culley Lake
and has never paid the taxes on the Lake.
The “Natchez Trace Village” subdivision was developed starting in the early 1960's by
Lewis Culley, Sr., Lewis Culley, Jr., and Gus Noble. (Culley R. E. 2). Natchez Trace Village was
developed in three phases. The Culleys were involved in Phase One which was not a platted
subdivision. The Phase One lots were conveyed by metes and bounds description with covenants
5
The Culley’s land includes the dam on which is a boat ramp. The dam is a low hazard
dam which drains into the Barnett Reservoir. (MDEQ letter, Exhibits 500).The Lake was
originally constructed in the 1950's but was drained, altered and re-filled in the early 1960's as a
result of the construction of the Reservoir. There is also a “small lake” of roughly four acres
owned by the Culleys. The lakes are sometimes called “big” and “small.” The small lake is only
used for fishing.
6
Lester Patton, an experienced title abstractor, examined the title to Culley Lake and
testified there were no covenants recorded on the lake. (Culley R. E.6 ; C.P. 429).The same
conclusion was reached in the Mississippi Valley Title abstract report requested by NTVPOA.
(Exhibits 361).
10
attached as an exhibit to the deeds. (See, Deed to Watkins, Exhibits 219). The covenants contained
nineteen separate paragraphs which set forth building and other restrictions on the lots and gave the
lot owner the right to use Culley Lake. (Culley R. E.4; Exhibits 234, 491-493).7
J & P, Inc., a Mississippi corporation not affiliated with the Culleys, was the developer of
Phase Two which was platted with the county. (Culley R. E.7; Exhibits 371). The covenants for
Phase Two were set forth in eighteen separate paragraphs and recorded at Book 416 page 707.
(Culley R..E.8; Exhibits 363)8. Phase Two is not contiguous to Culley Lake. (See, plat, Culley R.
E.7; Exhibits 371). Culley Lake was not platted as a part of the Phase Two plat. (Exhibits 372). No
legal description of the Lake was included as a part of the plat. Id.
Natchez Trace Village Phase Three is a platted subdivision. (Culley R. E.9; Exhibits 372).
The covenants in Phase Three were also attached to the deeds and were set forth in nineteen
paragraphs like the covenants in Phase One. (Culley R. E. 8; Exhibits 367-370). Culley Lake was
not platted as a part of the Phase Three plat. (Culley R.E. 8; Exhibits 372). As with Phase Two, no
legal description of the Lake was included as a part of the plat of Phase Three. Id. The general
location of the “Natchez Trace Parkway” and “Culley Lake” are referenced on the plat as being
adjacent to the land that was platted. Id. (Exhibits 372).
Numerous deeds to lots with covenants attached were entered into evidence at trial. (Exhibits
236-357). The covenants recorded with the numerous deeds have nineteen paragraphs. (Culley R.
E. 4; Exhibits 234, 491-93).
Throughout each phase of the development of Natchez Trace Village, the Culleys maintained
7
A printed set was attached to some deeds and a typed set was attached to some deeds.
Each have the same nineteen paragraphs. A copy of each is included in Culley R. E. 4.
8
The Phase Two covenants contain differences. Paragraph 15 (regarding corner lots) is
deleted in the Phase Two covenants. Thus, Phase Two has eighteen paragraphs.
11
ownership of Culley Lake. There was no statement in the covenants that title to Culley Lake would
be conveyed to the residents or to an owner’s association. The covenants in all three phases granted
the purchaser of the lot the right to use Culley Lake. No representations were made that the residents
would control Culley Lake.
The Chancery Court properly found that the covenants apply to and govern the lot being
conveyed. The covenants as recorded with the deeds state in pertinent part as follows:
1. The property conveyed herein shall be known and described as residential

property and not structure shall be erected, placed , altered, or permitted to remain
on said lot other than a residential building meeting the specifications and
requirements hereinafter set out; ,....
2. No dwelling house shall be constructed on the said lot having an area of less than 1,800
square feet, ....
3. No noxious or offensive activities shall be carried on upon any of said property,...
6. The owner of the property shall keep the grass...
8. No trailer, other than a boat trailer, shall be placed or maintained on said

property.
9. This property may not be re-subdivided,....
11. It is understood and agreed that the land conveyed herein shall be bound by
the rules and regulations formulated by the Board of Governors of Natchez Trace
Village,...
12. The Board of Governors may make such rules and regulations affecting the use
of the subject property as they so desire, said rules and regulations to include , but
are not limited to the following:
a) ... No piers or any other structure shall be erected or shall extend into the lake
abutting the property, said lake being known as the Natchez Trace Village Lake.
c) .... The purpose of the maintenance fund, among other things, may include but is
not limited to the upkeep of public right-of-ways, insect control, employment of
watchman, repair and maintenance of any facility designed for the benefit of the
12
property owners in the subdivisions and payment of any taxes on any facility
which provides for the general benefit of the lot owners.
d). The Board of Governors shall have the power and authority to formulate rules
and regulations in addition to these herein set out, which rules and regulations in the
opinion of the Board of Governors shall add to the beneficial use of the subject
property and shall contribute to the safety and beauty of the property.
14. The owner of the lot conveyed herein shall have the perpetual right to use the
entire lake known as Natchez Trace Village Lake, and the owners of the lots abutting
the lake shall use their lot as a means of ingress and egress to said lake. As to owners
of lots which do not abut the lake, said owner shall be provided, along with other
owners of lots not abutting the lake, with a common means of ingress and egress to
the lake.
(Culley R. E.4;, Exhibits 234, 491-93) (emphasis added)..
The covenants permit the “Board of Governors” to make rules for the lot (the “land
conveyed”) by the deed. (Paragraphs 11 and 12, recorded covenants Culley R.E. 4). The covenants
distinguish between the “the property” being conveyed by the deed and the “lake.” No language was
included in the covenants which grants the Board of Governors authority to control the lake.
As explained at trial by expert witness, John Shows, an attorney with more than forty years
of experience in real estate development in Mississippi, including residential developments with
lakes, the ownership and control of a lake associated with a subdivision development can be set up
in different ways. ( R. E.10; C.P.446-49). The owner/developer can retain ownership of the lake and
grant a right of access to the lake. That is exactly what happened in Natchez Trace Village as shown
by the plain language of the documents. (J. Shows, Culley R. E 10; C.P.443-447). Another option
(not done here) is that fee title to the lake can be conveyed to the lot purchasers along with title to
the lots whereby the purchasers who own the lots adjoining the lake will own the lake. A third
option (not done here) is that fee title to the lake can be conveyed to an owner’s association along
with other common areas. In the latter case, the lake is platted as a part of the subdivision and
covenants recorded on the lake as a part of the recorded plat. R. E.10: C.P.446-49).
13
\ In the instant case, the Culleys maintained ownership and control of Culley Lake and no
covenants were recorded on the lake. (Culley R.E. 10; C.P. 443-447 and Culley R.E. 11; C.P. 673).
The lot purchasers were granted a right to use the Lake, not control the Lake.
Consistent with the obligation of a person who has a right to use another’s real property, the
NTVPOA, in 1975, agreed to pay maintenance items for Culley Lake. Payment of maintenance
costs does not equate to a right to control. (Culley R. E. 12; Exhibits 381). The assumption of
maintenance items was not conditioned on the Culleys granting control of the lake to the NTVPOA.
There was no testimony or proof to that effect. In the January 1975 Resolution, a Committee of the
NTVPOA acknowledged that the Culleys owned Culley Lake. In the Resolution, the Committee
lists items of maintenance that it would consider taking over from Lewis Culley, Jr., the developer,
and that the NTVPOA would poll the property owners regarding the maintenance items. R. E.12;
Exhibit 381). The items of maintenance were the following:
1. Cutting grass at the main gate

2. Weed control in lakes (2)
3. Fertilization of lakes (2)
4. Natchez Trace Village street and direction signs
5. Emergency repair of dams on lakes
6. Storm drainage control
7. Support of beautification efforts
R.E.12; Exhibits 381.
A notice was sent out to the property owners and a meeting was held in May 1975. (Culley
R.E. 13; Exhibits 382). The NTVPOA assumed these items of maintenance in the neighborhood.
The Culleys did not grant the NTVPOA the right to control Culley Lake. The maintenance items
in no way give the NTVPOA the legal right to control the lake. 9
9
Three of the items relate to the lake. There was no real proof offered by NTVPOA on
these items. There was no evidence of pending applications to MDEQ for repairs to the dam or of
repairs scheduled by the NTVPOA for Culley Lake.
14
The 1975 Resolution of a Study Committee of the NTVPOA dated January 16, 1975
provides:
Whereas, if Lewis Culley, or the Lewis Culley Development and Real Estate
Company, deeded the lake property to the Natchez Trace Village Property Owners
Association, or a non-profit corporation owned by the Natchez Trace Village
Property Owners, for their mutual benefit, then the Maintenance Fund Committee
will pay all lake property taxes.
(Culley R. E. 12; Exhibits 382).
Lewis Culley did not deed the lake to the NTVPOA. The NTVPOA has never paid the taxes
on the Lake.
The NTVPOA creates confusion by publishing a booklet to residents which includes a
printed copy of the subdivision covenants. (Exhibits 204). The booklet does not contain the
covenants as recorded. The problem is that the booklet contains changes to the covenants that are
not valid. The covenants mandate a specific procedure to be followed to change covenants. Any
amendment or change of the covenants requires “an instrument, signed by two-thirds (2/3) of the
then owners of the lots in the Natchez Trace Village has been recorded, agreeing to the change in
said covenants in whole or in part, or to revoke the covenants entirely.” (Culley R. E. 4; Exhibits
234). No instrument signed by two-thirds of the owners and recorded was entered into evidence or
otherwise produced in this case. The purported changes in the NTVPOA booklet are not valid.
For example, paragraph 3 of the recorded covenants reads as follows:
3. No noxious or offensive activities shall be carried on upon any of said

property, nor shall anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood.
(Culley R. E.4; Exhibits 234, 491-93).
In the booklet (not signed by 2/3 and not recorded) as published to residents by the NTVPOA
15
paragraph 3 reads as follows:
3. No noxious, offensive, dangerous, or illegal activities shall be carried on

upon any of said property, undeveloped lots, roads, or other property in Natchez
Trace Village, nor shall anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood. Particular reference is made to the
operation and use of firearms and recreational vehicles.
(Exhibits 207).
At trial, the NTVPOA attempted to rely on the invalid change to justify control of Culley
Lake. Most important, the invalid amendment does not mention Culley Lake or the Lake. The
purported change in no way can justify control of the Lake. Even if the amendment was valid
(which it clearly is not) the Chancery Court considered the purported change and found that it did
not change the result in any way. Furthermore, NTVPOA could not obtain power over the Culley
land by amending the covenants that govern the lots. That Bethany W. Culley signed the minutes
on the invalid amendment is of no consequence as claimed by NTVPOA. The purported amendment
was in 1983 when Lewis Culley, Jr., owned Culley Lake, not his wife, Bethany W. Culley. The
purported amendment which does not mention the Lake amounts to nothing.
The NTVPOA incorrectly refers to the Culleys owning the “middle of the Lake.” (NTVPOA
Brief at 7). The Culleys hold legal title to the approximate thirty- acre lake. Obviously, the water
level in a lake does not remain static. Some of the water front lots may extend a few feet into the
Lake. The Chancery Court found that “save for several lots that extend a few feet into the lake, the
Culley family has retained exclusive ownership of Culley Lake...” (Culley R. E. 2; 267). There is no
proof to support the NTVPOA allegation in its brief that the 50 water front lots extent 20 to 40 feet
into the lake. (NTVPOA Brief at 14). At some points in its brief the NTVPOA argues that it does
not know the boundary locations. The NTVPOA cites Mrs. Watkins testimony that “most” lake lots
16
extend into the lake, C.P. 374, and her testimony that her lot extended 38 feet into the lake.” 10 The
Culleys own the thirty- acre lake except for a few feet on certain water lots where the lot extends into
the Lake. It is misleading to argue that the Culleys own the “middle of the Lake.”
In its brief the NTVPOA also refers to its official charter. Such was prepared in 1975 over
a decade after the covenants were prepared and attached to the lots. The Board of Governors was
granted the right in the covenants to make rules for the lots. The NTVPOA has never owned any real
property and has never owned any part of a lake. It has never owed any “common areas.” The fact
that the non-profit charter refers to it being able to own “common areas” or “lakes” has no bearing
on this case.
There is no evidence that the developers ever intended that Culley Lake be subject to the
covenant restrictions. The NTVPOA cites no representation by the developers that Culley Lake
would be owned or controlled by the residents or homeowners. Statements in sales literature that
the “community” would be governed by homeowners, or “highly restricted” or “complete in every
detail” does not represent that the residents would control Culley Lake. (Exhibits 233 and 234).The
sales literature referred to by NTVPOA contains a printed copy of the covenants which state that the
covenants govern the lots conveyed. (Exhibits 232-34). Mary Watkins, the Treasurer of NTVPOA,
testified that she “understood” when she purchased her lot that the residents had a right to use the
lake and that the residents would control the lake. (C.P. 375). The covenants clearly do not say that.
Watkins was the only witness who addressed the 1960's sales literature and her “understanding” does
not equal a representation.
10
Mary Watkins, NTVPOA officer, testified that her lot extended into the lake
approximately 38 feet. (C.P. at 397). There was no proof that any other lot extended that far into
the lake. Assuming that Watkins lot does extend 38 feet, the Lake is thirty acres and to say that
the Culleys own the “middle of the lake” is clearly wrong.
17
Merely because Culley Lake was depicted in some sales literature does not mean that the
developers represented that the residents would control Culley Lake. The Natchez Trace Parkway
and Barnett Reservoir are shown in some plats or diagrams. A diagram or plat showing a lake does
not represent that the residents will control the lake. A sales brochure depicting a golf course, lake,
or other amenity in a neighborhood does not equate to a representation that the purchasers get to
control the amenity.
The residents were granted a right to ”use” the lake.11 The Culleys have always welcomed
lot owners to use Culley Lake. The NTVPOA is the party attempting to restrict use and enjoyment
of the Lake. The NTVPOA claims broad power and literally contends that it could bar fishing on the
lake. (C.P. 403). The actions of the NTVPOA not only conflicts with the Culleys’ rights as owners
but it also directly conflicts with the right to use the lake enjoyed by the lot owners.
For decades, the Culley family (and residents) engaged in skiing and tubing on Culley Lake.
(Culley R. E. 15; C.P. 711-14, 721). 12 The Culleys treated the lake as their property. There was no
“misleading silence.” They refused to convey the lake to NTVPOA. They paid the taxes. They did
not comply with all lake rules. (Culley R. E. 15; C.P. 716, 721, 752). They granted access to
11
NTVPOA says that the right to use would not show up in a title search of Culley Lake.
(NTVPOA Brief at 15). A person searching title is charged with knowledge of the contents of
every deed in the chain. Stockstill v. Gamill, 943 So. 2d 35, 43 (Miss. 2003). As with deeds, the
NTVPOA is charged with knowledge of the contents of the recorded covenants that were
attached to the deeds.
12
Lewis Culley, III, grew up living on Culley Lake and enjoyed skiing and other water
sports.(Culley R.R. 15;C.P. 711-12). Except for a few years during his military service, Culley
and his family continued to enjoy skiing and water sports on the lake. (C.P. 718, 721). After
returning from the military, Culley purchased a home on the small lake in 1995 and continued to
enjoy Culley Lake. (C.P. 718). Culley remodeled his parents home on Culley Lake after his
mother’s passed away in 2012 and moved there. (C.P. 718). Culley has actual knowledge of the
depth of the lake and that it is safe for water sports. (Culley R.E. 14, 15; C.P. 412-13, 725-26).
The more shallow fingers of the lake were never used for skiing. (C.P. 726).
18
persons who lived in a nearby subdivision the right to use the lake, a violation of “lake rules.”
(Culley R.E. 15 ,C.P. 716). They allowed people who were not members to use the lake, a violation
of “lake rules.”(C.P. 716). They regularly invited friends and others to use the lake without one of
the Culleys or another member being present, a violation of “lake rules.”(C.P. 716). The Culleys
never honored any effort by the NTVPOA to restrict boating, skiing, tubing or jet skis on Culley
Lake. (C.P. 721). The NTVPOA never did anything to the Culleys for alleged violations of lake
rules. When the NTVPOA did attempt to enforce its alleged ban on skiing, tubing and jet skis as to
the Culleys, litigation was the result.
The Culleys have never been “passive” in regard to attempts by the NTVPOA to restrict their
activity on the lake they own. No case law allows the NTVPOA to somehow gain control of the
Culley’s real property by enacting “lake rules” for the neighborhood residents. These rules related
to fishing (e.g.,“catch and release of fish”), fishing near fish feeders, making sure guests were
accompanied by a resident when they were on the lake, flotation devices in boats, using water craft
in a courteous manner and other similar rules. (See, Exhibits 400-01, 419, 395,408,435, 407). The
Culleys acted as good neighbors and the rules of the lake were clearly permissive as to the Culleys.
They actively asserted their ownership and refused to comply rules which encroached on their rights
as owners of the lake. The residents were free to abide by “lake rules” if they chose to do so as
residents. The Culleys were not required to file litigation to stop the NTVPOA from making “lake
rules” for residents. Litigation did result when the NTVPOA attempted to interfere with the Culley’s
rights to enjoy their real property.
The first “temporary rule” attempting to prohibit such conduct on the Lake was not enacted
until 2010 after many decades of extensive use of the Lake. (C.P. 721; Exhibits 432). The Culleys
never complied with the rule restricting such activities on the Lake. (Culley R. E. 15; C.P. 721). The
19
Culleys steadfastly resisted any efforts by the NTVPOA to restrict their activities on the Culley Lake.
The rule prohibiting “water-skiing, towing, tubing, and personal water craft (jet skis)” was published
to the residents in October 2011. (Exhibits 435). No action was taken by the NTVPOA to enforce
“lake rules” against the Culleys until after Bethany W. Culley passed away in 2012 and Lewis, III,
and his sister Bethany inherited the land. The facts show that the Culleys never complied with all
the lake rules and the NTVPOA did nothing about it. The “sudden change of position” was by the
13
NTVPOA after decades when both the developer and his wife passed away. This change of
position by the NTVPOA resulted in the litigation being filed by the Culleys in May 2014.
The NTVPOA confuses its right to enforce the covenants for the lots subject to the covenants
and interfering with the Culleys rights as owners of the lake, on which there are no covenants. The
NTVPOA cannot enforce covenants that do not exist.
ARGUMENT
I. The Standard of Review
This Court “will not disturb the decision of a chancellor that is supported by substantial
evidence unless the chancellor’s decision was manifestly wrong, clearly erroneous, or an incorrect
legal standard was applied.” Fernado v. Sapukotana, 179 So. 3d 1105, 1111 (Miss. 2015). This
Court “cannot reweigh the evidence and must defer to the chancellor’s finding of facts, so long as
they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (Miss. App. 2014).
13
Mary Watkins, the leader of the NTVPOA and its main witness at trial, is related to the
Culleys by marriage. Mr Watkins is the brother of the late Bethany W. Culley, wife of Lewis
Culley, Jr., one of the developers. (C.P. 547). It is clear that Mrs. Watkins knew that she could
not enforce the “lake rules” against her brother-in-law (the developer) and his wife who owned
the lake but she thought that she could try against the Culley children. That explains why there
was no action for over decades against the Culleys for granting access to non-residents and other
violations of lake rules. The NTVPOA mentions that Bethany W. Culley, the mother, was once
on the Board years ago. It fails to mention, however, that she was not on the Board when these
“rules” were passed. (C.P. 527, 528)
20
Where the Chancellor was the trier of facts, his findings of fact on
conflicting evidence cannot be disturbed by this Court on appeal unless we can say
with reasonable certainty that these findings were manifestly wrong and against the
overwhelming weight of the evidence. Even if this Court disagreed with the lower
court on the finding of fact and might have arrived at a different conclusion, we are
still bound by the Chancellor’s findings unless manifestly wrong. The Chancellor’s
role as fact finder parallels’ that of a juror. As the sole judge of the facts in this case,
he determined what weight and what credibility would be assigned the testimony and
supporting evidence of each witness in this case. He was required to use good
common sense and sound, honest judgment in considering and weighing the
testimony of each witness. A Chancellor is afforded the favor of observing the
demeanor of witnesses and he is called upon to exercise his discretion, as we
similarly mandate jurors. This Court held the credibility of the witnesses and the
weight of their testimony, as well as the interpretation of evidence where it is capable
of more than one reasonable interpretation, are primarily for the chancellor as the
trier of facts. It is further stated that if the issue is one of fact, the Chancellor’s
decision will not be disturbed unless it is manifestly wrong. As with any finder of
fact, he is entitled to consider the interests witnesses may have in the outcome...
Elchos v. Haas, 178 So. 3d 1163, 1187 (Miss. 2015) (quoting, David M. Cox, Inc. v. Pitts, 29 So.
3d 795, 804-05 (Miss. App. 2009).
The Chancery Court heard the testimony of the witnesses and considered the documentary
evidence. In re Boundaries of City of Laurel, 922 So. 2d 791, 795 (Miss. 2006) (“It is our solemn
duty to afford due deference to a Chancellor, who sits as the fact finder.”). The Chancery Court
refused to apply estoppel under these facts. That finding is entitled to “great deference” on appeal.
Elchols, 178 So. 3d at 1187 (“All attempts to seek application of estoppel,..., require intense factual
analysis”...); Armstrong Tire & Rubber Co. v. Franks, 137 So. 2d 141, 147-48 (Miss. 1962) (where
the trier of fact finds that “estoppel was not established by the evidence” such finding “will not,
under usual circumstances, be disturbed on appeal.”).
“Appellate review” is considered “in the light most favorable to the party who found favor
in the chancellor’s ruling.” Elchos, 178 So. 3d at 1187. “ If conflicting testimony is presented, all
21
testimony favoring the [appellants] must be accepted, along with all permissible inferences which
the chancellor would draw from the proof and circumstances, becoming established facts.” Id. at
1187.
The NTVPOA asks this Court to apply the theory of implied reciprocal negative easement.
The facts of this case do not fit that theory. Importantly, the courts in other states that have applied
that theory (and the Restatement) hold that it must be proven by ‘clear and convincing” evidence.
The Chancery Court rejected application of the theory under these facts. Where the appellant bears
the burden by clear and convincing evidence, the Mississippi Supreme Court has stated the following
regarding the standard of review on appeal:
In determining whether there is in the record sufficient evidence that the

trial court’s findings should be affirmed, we bear in mind the quantum of proof the
party burdened at trial was required to produce in order to prevail. Where the
appealing party has such a burden at trial [the burden to prove by clear and
convincing evidence], he necessarily has a higher hill to climb on appeal, as we look
at all of the evidence and decide whether a rational trier of fact may have found,....by
clear and convincing evidence. Put otherwise, the minimum evidentiary offering
from the unburdened appellee necessary for affirmance is less than it would be if the
preponderance of the evidence rule applied.
Bryan v. Holzer, 589 So. 2d 648, 659 (Miss. 1991) (quoting, Mullins v. Ratcliff, 515 So. 2d 1183,
1189 (Miss. 1987) (emphasis added).
II. Mississippi law is clear - The owner of real property on which a man-made lake
sits owns and controls the lake.
In Crenshaw v. Graybeal, 597 So. 2d 650 (Miss. 1992), a case involving the right to use and
control a made-made lake, the Mississippi Supreme Court stated:
Our controlling principles are well settled. Black v. Williams, 417 So. 2d 911 (Miss.
1982), found adjoining landowners contesting rights to a 125.3 acre lake formed
when the Big Sand Drainage District built a dam across drainage courses. Black
sought to go upon the lake and upon the waters beyond the boundaries of his land
beneath, and a lawsuit ensued. Addressing only the rights of owners of land beneath
artificial or man-made lakes, Black announced that owners of the fee and the land
22
beneath such a lake, in the absence of some statute or covenant or agreement to the
contrary, have exclusive control over the water over their respective portions.
597 So. 2d at 652 (citing, Black v. Williams, 417 So. 2d 911, 912 (Miss. 1982)). (emphasis added).
In Dacus v. Sillers, 557 So. 2d 486 (Miss. 1990), the Mississippi Supreme Court stated:
Where a lake or pond is wholly man-made or artificial, the record titleholders own the
waters and all life within them as their interest may appear, whether the lake or pond
has been built for commercial, drainage, recreational or aesthetic reasons. By the same
token, our law protects from interference a record titleholder’s interest in small,
completely landlocked natural (spring fed) lakes.
557 So. 2d at 502.
In Ryals v. Pigott, 580 So. 2d 1140, 1148 (Miss . 1990), the Court stated: “ Of course, small
waters and man-made lakes and ponds are susceptible of private ownership and where they are
privately owned they cannot be taken without just compensation.” Id. at 1148.
In the instant case, the Culleys own fee simple title to the Lake and have the right to control
it.14 As discussed, some of the lots on the lake extend a few feet into the lake. NTVPOA imagines
this as a unique problem to hopefully create grounds for relief. Real properties, including lakes,
across this state often have no visible boundaries. The lack of a visible boundary does not create a
cause for relief. As with its other arguments, the NTVPOA cites no case law that even remotely
suggests that such creates grounds for relief. If a lot owner wants to know his boundary location,
the owner can order a survey as is done in other situations to find boundaries.
III. The NTVPOA does not own any portion of Culley Lake and no statute, covenant or
agreement gives it the right to restrict activities on the lake.
The NTVPOA does not own title to any of Culley Lake. The deeds to the individual owners
of lots in the subdivision contain covenants but those covenants do not give the NTVPOA the right
14
The Mississippi Legislature did not include “private lakes or ponds” in the definition of
“waters of this State.” § 59-21-1(m), Miss Code. Ann. The State boating statutes are not
applicable to Culley Lake.
23
to control the lake.
11. It is understood and agreed that the land conveyed herein shall be
bound by the rules and regulations formulated by the Board of Governors of Natchez
Trace Village,...
(Culley R. E. 4; 234,491-93) (emphasis added) (Paragraph 11 of recorded covenants) .
The land conveyed by the deed was the legal description of the lot. Cox v. Trustmark National
Bank, 733 So. 2d 353, 358 (Miss App. 1999) ( “a deed conveys only the property described therein
and which it manifests an intention to convey by express terms.”); Miller v. Mims, 150 So. 191,191
(Miss. 1933) (same). The covenants govern the “property” conveyed by the deed, not “the lake.”
In its brief on appeal, the NTVPOA states that “all lot owners universally testified that they
knew when they acquired their lots that there were rules in place governing the Lake.” (NTVPOA
Brief at 13-14). NTVPOA citations for this “universal” testimony is to Culley and Cockrell. Lewis
Culley, III, testified “Q. And I believe your testimony was that he didn’t follow all the rules, is that
right” A. No sir, he did not.”(C.P. 752). The only other lot owner testimony cited by NTVPOA is Mr
Cockrell who was sued for multiple violations of the NTVPOA rules but against whom no appeal
was taken and final judgment allowed to stand. (C.P. 761). This “universal” testimony does not prove
the NTVPOA’s case in any way.
IV. The attempt to restrict the Culleys use and enjoyment of their real property must be
strictly construed.
The Chancery Court correctly found that the covenants do not grant a right to control Culley
Lake. No covenants were recorded on the lake. The Culleys have the legal right to control the real
property they own. “ The law of this and every other state that we know anything about favors free
and unobstructed use of real property.” Kinchen v. Layton, 457 So. 2d 343, 345 (Miss. 1984). In
Kinchen, the Court emphasized that “restrictions should not be left to implication but should be
24
clearly defined.” 457 So. 2d at 346 (citing a long series of Mississippi cases). “Because the law
generally disfavors restricting another’s property rights, restrictive covenants are subject more or less
to a strict construction.” Rawaid v. Murguia & Arias Grocery, LLC., 124 So. 3d 118, 121 (Miss
App. 2013) (emphasis added); Kephart v. Northbay Property Owner’s Association, 134 So. 3d 784,
786 (Miss App. 2013) (“construction is usually most strongly against the person seeking the
restriction and in favor of the person being restricted” ).
In Pittman v. Lakeover Homeowners’ Association, 909 So. 2d 1227 (Miss. App. 2005), the
Mississippi Court of Appeals held that the protective covenants at issue did not provide a specific
start and completion date as to construction on the lots subject to the covenants. Id. at 1229-30. The
Court stated “ courts do not have the power to make contracts where none exist, nor to modify, add
to , or subtract from the terms of one in existence.” Id. at 1229-30: Andrews v. The Lake Serene
Property Owners Association, Inc., 434 So. 2d 1328, 1333 (Miss. 1983) (“Generally, courts do not
look with favor on restrictive covenants.”); Lake Castle Lot Owners Assoc.. Inc. v. Litsinger, 868 So.
2d 377, 380 (Miss. App. 2004) (covenant applicable to lots “falls short of the degree of specificity
and clarity necessary” to prohibit owner from constructing a residence on each of the lots he owned).
In the instant case, the NTVPOA attempts to expand the covenants far beyond their plain
language. Kemp v. Lake Serene Prop. Owners Association, 256 So. 2d 924, 926 (Miss. 1971)(attempt
to use covenant to bar prefabricated dwelling would be “extending the terms of the covenants.”). The
NTVPOA retained an expert witness to review the covenants at issue. The NTVPOA expert admitted
at trial there is “no expressed document that these covenants apply to the description of the lake.”
(Culley R. E. 16; C.P. 606). After reviewing the covenants, the expert retained and paid by the
NTVPOA, testified that the covenants were “ambiguous” as to whether the covenants applied to
the lake and controlled the lake. (Culley R. E. 16 C.P.610) ( emphasis added).
25
The Chancery Court found the covenants are clear and control only the lots. Assuming
arguendo, such covenants were “ambiguous” as to whether such apply to the lake ( as testified to by
the NTVPOA expert witness), the court must strictly construe the covenants against NTVPOA, the
party attempting to prohibit and restrict use of the lake and in favor of the Culleys’ (and other
residents) right to use and enjoy the lake. Rawaid, 124 So. 3d at 120 (“ And in case of ambiguity,
construction is most strongly against the person seeking restriction and in favor of the person being
restricted.”); Belager-Price v. Lingle, 28 So. 3d 706, 713 (Miss. App. 2010) (covenant was ambiguous
as to the timing of construction of residence; therefore, covenant was construed in favor of property
owner.).
The NTVPOA cites A.A. Home Improvement Co. v. Hide-A-Way Lake Club, Inc. 393 So. 2d
1331 (Miss. 1981) where the Mississippi Supreme Court enforced a covenant that “no lot shall be
used for other than residential purposes.” Id. at 1335. In that case, the developer conveyed title to the
Lake Club to certain properties for the common benefit of the property owners. Id. at 1334. The
restrictive covenant was recorded on all of the developers property. Id. 1334. The developer later
attempted to use one of his lots as a street to gain access to the public roads. The Mississippi Supreme
Court found that the lot had to be used for residential purposes and not a street. Id. at 1337. AA. Home
Improvement is not on point.
The NTVPOA also cites Griffin v. Tall Timbers Development, Inc., 681 So. 2d 546 (Miss.
1996) where the Court found that a right to form a homeowners association was a covenant that ran
with the land. Id. at 551. Griffin does not help NTVPOA. The case is not on point. The NTVPOA
cites Stokes v. The Board of Directors of LA CAV Improvement, Co., 654 So. 2d 524 (Miss. 1995).
In Stokes, the Mississippi Supreme Court considered the issue of whether a deed restriction that “ no
building of any kind shall be constructed on said lot 77" precluded the repair of an earthen pier and
26
construction of a wood addition to the pier to create a boat slip. Id. at 528. The Court construed the
deed restriction in favor of the land owner’s right to build the boat slip. Id. at 529.
V. The right to use Culley Lake or contribution maintenance of the Lake do not grant
the right to control the lake.
The owners of lots have a right to use Culley Lake. The NTVPOA owns no part of the lake
and has no rights in the lake. The fact that the lot owners contribute to maintenance is totally
consistent with a right to use another’s real property. Lindsey v. Shaw, 49 So. 2d 580, 584 (Miss.
1950) (repair of easement at expense of holder) ; Tubb v. Monroe County Elec. Power Association.,
912 So. 2d 192, 196 (Miss. 2005)(holder of an easement had burden of maintenance and repair).
The right to use by lot owners does not grant a right to control by the NTVPOA. In Rowell
v. Turnage, 618 So. 2d 81 (Miss 1993), the Mississippi Supreme Court stated “the easement owner
cannot lawfully take dominant possession and deal with the land upon which the easement exists as
if he were the owner of the land.” Id. at 85 (quoting, McDonald v. Board of Mississippi Levee
Commissioners, 646 F. Supp 449, 466 ( N.D. Miss. 1986) aff’d 832 F. 2d 901 (5th Cir.1987); See also,
McDowell v. Zion Baptist Church, 203 So. 3d 676, 677-78 (Miss. App. 2016) (same). In Rowell, the
Court stated “the granting of a right-of way over land does not pass any other right or incident. The
owner of the soil retains full dominion over his land subject merely to the right-of-way.” 618 So. 2d
at 85. In McDonald, the federal court stated “ It is settled law that a clause in an easement that gives
an easement holder certain rights will not be broadly construed so as to grant additional rights to the
easement holder.” 646 F. Supp at 465 (citing, Turner v. Morris, 17 So. 2d 205, 206 (Miss. 1944)).
The lot owners have a right to use the lake, not control. The Culleys will continue to welcome
use of the lake as they have always done. Only NTVPOA attempts to restrict use of the lake.
27
VI. The Chancery Court properly rejected equitable estoppel.
The Chancery Court properly rejected equitable estoppel.15 The Mississippi Supreme Court
has made clear that equitable estoppel is an “extraordinary remedy” and should be applied
“cautiously” and “only when equity clearly requires it to prevent unconscionable results.” B.C. Rogers
Poultry, Inc. v. Wedgeworth, 911 So. 2d 483, 491 (Miss. 2005). It is only applied in “exceptional
circumstances” and must be based on public policy, fair dealing, good faith, and reasonableness.
Powell v. Campbell, 912 So. 2d 978, 982 (Miss. 2005); EB, Inc. v. Smith, 757 So. 2d 1017, 1021
(Miss. App. 2000) ( “The law does not regard estoppels with favor...”).
The facts do not justify equitable estoppel. The elements required for equitable estoppel are
“(1) belief and reliance on some representation; (2) a change of position as result thereof; and (3)
detriment or prejudice caused by the change of position.” B.C. Rogers, 911 So. 2d at 492.
The Chancery Court found that the NTVPOA did not meet these requirements. Mauck v.
Columbus Hotel Co., 741 So. 2d 259, 265-66 (Miss. 1999) (denial of equitable estoppel affirmed on
appeal; “ CHC does not show that the required elements of equitable estoppel are satisfied.”). In the
instant case, NTVPOA did not rely on any false representation by the Culleys. NTVPOA did not
change its position in reliance on any such false representation and NTVPOA was not prejudiced.
There are no grounds for estoppel. First Investors Corp. v. Rayner, 738 So. 2d 228, 234
(Miss. 1999) (claim of equitable estoppel denied; party did not change its position in reliance on the
information); Knight Properties, Inc. v. State Bank & Trust Co., 77 So. 3d 491 (Miss. App. 2011).
15
In its Statement of Issues on Appeal, the NTVPOA argues that the Culley Defendants
waived their rights to object to regulation of Culley Lake and, alternatively, that the Culley
Defendants were equitably estopped. Estoppel or wavier is not mentioned by NTVPOA in the
Pre-Trial Order. Under Rule 16, MRCP, the Pre-Trial Order controls. Rule 16, MRCP, (“and
such order when entered shall control the subsequent course of the action, unless modified at the
trial to prevent manifest injustice.”).
28
(there was no proof of detrimental reliance).
In the instant case, the alleged claims of the NTVPOA would give it effective total control
and ownership of Culley Lake, except for paying the taxes. The NTVPOA knew for decades that the
Culleys owned the lake and that they refused to convey the lake to the NTVPOA. It would be
nonsense for the Culleys to retain ownership and pay taxes for over sixty years and yet have intended
to give the NTVPOA total control over the lake. The NTVPOA knew that the Culleys owned the lake
and retained control of what they owned. Estoppel does not apply.
In Long Meadow Homeowner’s Association, Inc. v. Harland, 89 So. 3d 573, 578 (Miss.
2012), the Mississippi Supreme Court affirmed the chancellor’s rejection of equitable estoppel in a
case involving covenants in a subdivision. In Harland, the subdivision was developed in three distinct
phases. There were 48 lots and each consisted of approximately four acres. Id. at 575. The plat for
phases I and II contained recorded restrictive covenants (one residential structure per lot) for the lots
in that phase. Id. The plat for phase III did not incorporate any restrictive covenants. Id. Rather than
incorporating the covenants with the plat for Phase III, the developers included covenants with each
deed in phase III. Id. The covenants for phase III limited the lots to residential use but some deeds
included a definition of “residential “ that included “churches and schools.” Id. at 575. The Harlands
purchased three lots in phase III for the purpose of transferring the lots to their church for construction
of a church building. Id. The developers conveyed the lots to the Harlands with the definition of
residential which included a church. Id.
In Harland, the homeowners association learned of the deed and without the Harland’s
consent had a new deed recorded that restricted the lots to residential only. Id. The Harlands sued for
declaratory judgment and to cancel the correction deed. Id. at 576. The homeowners association
asserted the defense of equitable estoppel. Id. The chancellor rejected the application of equitable
29
estoppel. The Court of Appeals affirmed and the homeowner’s association filed a petition for writ of
certiorari. Id.
In affirming the chancery court, the Mississippi Supreme Court stated:
The law does not regard estoppels with favor, nor extend them beyond the
requirements of the transactions in which they originate. Equitable estoppel has been
described as a shield and not a sword. It is an extraordinary remedy and should be
applied cautiously and only when equity clearly requires it to prevent unconscionable
results. It is to be applied only in exceptional circumstances and must be based on
public policy, fair dealing, good faith and reasonableness. The principle giving rise to
the remedy of equitable estoppel is that a wrongdoer is not entitled to enjoy the fruits
of his fraud.
Harland, 89 So. 3d at 577.
The homeowner’s association in Harland argued that the developers represented that the
subdivision would be restricted to “residential.” Id. at 578. The court rejected that argument because
the plat for phase III was of record and it did not contain the covenants. Id. The Court also noted that
the representations were not made by the Harlands. Id. In response to the dissent’s argument that
rejection of equitable estoppel would give the “covenants no validity” the Mississippi Supreme Court
stated:
In fact, our decision achieves the opposite. Our decision holds valid the
covenants applicable to the Harland’s land. What we refuse to do is place
restrictions on property in addition to those that the applicable covenants
provide. The effect of the dissent’s approach would be to allow one landowner to
impose the covenants on his lot to all other lots in a subdivision, regardless of what
the land records applicable to those lots contained. We simply cannot endorse such an
approach.
Harland, 89 So. 3d at 579 (emphasis added) (citing, Goode v. Village of Woodgreen Homeowners
Association, 662 So. 2d 1064, 1074 (Miss.1995) (“The law in Mississippi favors the free and
unobstructed use of real property.”)).
The same is true in the instant case. The NTVPOA attempts to add restrictive covenants
30
to Culley Lake that do not exist.
In PMZ Oil v. Lucroy, 449 So. 2d 201 (Miss. 1984), the developer subdivided property into
sixteen lots and sold most with covenants which included that there should only be one-single family
residence per lot. Id. at 203. Lucroy approached the developer who represented that only one single-
family residence would be allowed per lot. Id. The deed to the Lucroys contained the covenants. Id.
Thereafter, the developer started construction of six townhouse condominiums on one of the
subdivision lots he still owned which did not have covenants. Id. at 204. The Lucroys sued to stop
the construction of the town homes and the chancery judge granted an inunction. Id. In Lucroy, the
Mississippi Supreme Court affirmed the chancery judge’s findings. Id. at 209. The court found that
the developer represented to the Lucroys and their agent that he planned a residential subdivision, that
the “protective covenants would apply to all lots” and that one of those covenants would be a
covenant “restricting construction on each lot one single-family dwelling.” Id. at 207. The court
further found that the developer made similar representations to “all lot purchasers” in the
subdivision. Id.
In the instant case, NTVPOA cites Lucroy but ignores the fact that the Mississippi Supreme
Court affirmed the factual findings of the chancery court in that case. The facts of Lucroy are far
different from the instant case. Here, the Chancery Court’s findings should likewise be affirmed.
The NTVPOA cites White Cypress Lakes Development Corp. v. Hertz, 541 So. 2d 1031
(Miss. 1989). In Hertz, the Court found that a developer was equitably estopped from turning lots in
a residential subdivision into a “recreational vehicle (RV) campground.” Id. at 1032. The Court
affirmed the findings of the chancery court that the record was replete with evidence that the
developer induced purchasers to believe that “all lots in the entire development would be used solely
for single family home located upon lots of at least one acre in size.” Id.
31
The other equitable estoppel cases cited by NTVPOA are likewise not on point. NTVPOA
cites Kelso v. Robinson, 161 So. 135 (Miss. 1935) where a debtor sought to set aside a foreclosure
sale. In Kelso, an insurance company foreclosed a deed of trust it held on farmland. Id. at 136. After
the foreclosure, the debtor leased the land from the insurance company for farming and at the end of
the lease he surrendered possession and sued to set aside the trustee’s deed to the insurance company.
The debtor claimed that he had an agreement with the company to postpone the foreclosure. Id. The
court found the debtor estopped to set aside the foreclosure because he attended the foreclosure sale,
then leased the land from the company to farm, and did not object while the company made repairs
on several buildings on the land. Id. at 137. The court stated that “if a person knowingly suffers
another to expend money on land under an erroneous opinion of title, although he does so passively
by looking on without making known his claim, he shall not afterwards be permitted to enforce his
legal right against such other.” Id.
In the instant case, there was no “erroneous opinion of title.” The records of the NTVPOA
as early as 1975 show that it knew that the Culleys owned legal title to Culley Lake and that Culleys
paid taxes on the Lake. (Culley R. E. 12). In Kelso, the insurance company had a deed of trust on the
land and acquired title by virtue of the foreclosure and valid trustee’s deed. The court used estoppel
as a shield to block the debtor from arguing that the foreclosure was premature when the debtor
attended the sale, waited to the end of his lease and then claimed the foreclosure was premature. Kelso
in no way supports the NTVPOA’s unprecedented argument that it can control Culley Lake, a lake
it does not own and on which there are no covenants. See, Stanton v. Bryant, 55 Miss. 261 (1887),
a case cited by NTVPOA, where the Mississippi Supreme Court stated “ Bryant was not deceived and
misled as to legal title.” Id. at 275. In Stanton, the Court stated “ He whose title is of record as given
the notice which all are bound to know and respect. Id. at 275.
32
NTVPOA relies on Mayor & Board of Aldermen , City of Clinton v. Welch, 888 So. 2d 416
(Miss. 2004). In Welch, the Welch family moved to Clinton and wanted to build a tree house in their
front yard. “According to Mrs. Welch’s uncontradicted testimony”, the building inspector “approved
the project and indicated that no permit was required.” Id. at 417. Later, after a complaint by another
resident, the City Zoning officer took the position that the tree house violated the City ordinances. Id.
The dispute then worked through the administrative process which lead to the Circuit Judge reversing
the City’s finding that the tree house should be removed. Id. at 418. The City appealed. First, the
Mississippi Supreme Court found that the zoning ordinance was unconstitutionally vague. Id. at 424.
Then, the Court considered the equitable estoppel argument by Welch. The Court stated that the
equitable estoppel argument was “ based primarily upon Mrs. Welch’s testimony that she received
verbal approval to build the tree house” from the building inspector and thereafter constructed a
$5,000 tree house in “plain, open, obvious sight” on a public street. Id. at.425. In affirming the Circuit
Judge, the Mississippi Supreme Court stated that “our holding today is limited to the facts of this
case.” Id. at 428 (emphasis added). The facts of Welch are not remotely close to the facts of the
instant case. There was no representation by the Culleys that the NTVPOA could control Culley Lake
or prohibit water skiing, tubing, jet skis or otherwise restrict use of Culley Lake. Welch is not on
point and is not controlling.
NTVPOA cites Stokes v. American Central Ins. Co. 52 So. 2d 358 (Miss. 1951) where the
Mississippi Supreme Court held that a husband was estopped to sue an insurance company for the
proceeds of a casualty policy where the husband authorized the company to pay the benefits to the
wife shortly after their divorce proceeding. Id. at 360. Stokes does not remotely support the
unprecedented claims of the NTVPOA. The same is true of Armstrong Tire & Rubber Co. v. Franks,
137 So. 2d 141 (Miss. 1962), cited by NTVPOA, where the Mississippi Supreme Court refused to
33
apply estoppel in a worker’s compensation case. Id. at 142. Importantly, the court did state that where
the trier of fact finds that “estoppel was not established by the evidence” such finding “will not, under
usual circumstances, be disturbed on appeal.” Id. at 147. That principle applies in this appeal.
VII. The NTVPOA can not gain control of property it does not own by waiver.
As with estoppel, the NTVPOA did not assert “waiver” in the Pre-Trial Order which order
controls. (Culley R.E.1). Likewise, the NTVPOA cites no legal authority where control over another’s
real property is accomplished by “wavier.”16
Assuming arguendo, that NTVPOA made a waiver argument, the Mississippi Supreme Court
has held that the “intention to abandon or waive a vested property right must be shown by full and
clear evidence.” Hudson v. Moon, 732 So. 2d 927, 932 (Miss. 1999); Southern Bell Tel. & Tel. Co.,
v. City of Meridian, 131 So. 2d 666, 674 (Miss. 1961). There was absolutely no proof of an intention
by the Culleys to abandon a property right. The proof is the exact opposite. The NTVPOA did not
meet it burden of clear evidence. The Chancery Court is entitled to deference as to its findings on
waiver. Fredricks v. Malouf, 82 So. 3d 579, 581 (Miss. 2012) (this Court defers to trial court findings
on waiver).
VIII. The Theory of Implied Reciprocal Negative Easement does not fit the facts of this case.
NTVPOA argues that this Court should adopt the doctrine of implied reciprocal negative
easements. That theory does not fit the facts of this case. It is not necessary for this Court to consider
adopting such theory in this case. The theory has been used in limited circumstances to block
commercial development in a residential neighborhood or to promote uniform requirements for
construction on lots in such residential subdivisions.
16
To the extent the Chancery Court did not make explicit findings on “waiver” it is
assumed on appeal that all disputed issues where resolved in favor of the appellees. Ross v.
Brasell, 511 So. 2d 492, 495 (Miss.1987).
34
The courts in other states (and the Restatement) that have applied the theory require that the
proof be clear and convincing. The Bellemeade Co. v. Priddle, 503 S.W. 2d 734, 738 (Kent. Ap.
1974) (Burden is by “clear and convincing evidence.’); Restatement ( Third) of Property (Servitudes)
§ 2:14 (“clear and convincing” evidence required). Clear and convincing is a high standard of proof.
O’Neal v. Blalock, 220 So. 3d 234, 240 (Miss. App. 2017) (“Clear and convincing evidence is such
a high standard of proof that even the overwhelming weight of the evidence does not rise to the same
level”); Massey v. Lambert, 84 So. 3d 846, 848 (Miss. App. 2012). The NTVPOA did not meet that
high standard.
“The doctrine of reciprocal negative easements should be applied with extreme caution.”
Galbreath v. Miller, 426 S.W. 2d 126, 128 (Kent. App. 1968) (“the doctrine should be applied with
extreme caution because in effect it lodges discretionary power in a court to deprive a man of his
property by imposing a servitude through implication.”); Harbor Ventures, Inc. v. Dalton, 2012 WL
1810205, Tex. App.)(Refusing to block commercial development and “ applying the doctrine with
the appropriate extreme caution”). In Walters v. Colford, 900 N.W. 2d 183 (Neb. 2017), the court
noted that courts tend to use the doctrine “with great trepidation.” Id. at 191. The Walters court stated;
We have said that the law disfavors restrictions on the use of land. As one court
reasoned, Logically if express restrictive covenants are disfavored under the law,
implied restrictive covenants are to be viewed with even less favor. We have also said
that because implied restrictive covenants mandate relaxation of the writing
requirement, courts are generally reluctant and cautious to conclude implied covenants
exist.
Walters, 900 N. W. 2d at 191 (citing, Collins v. Rodgers, 938 So. 2d 379, 385 (Ala. 2006) ( “ in more
recent cases, this court has refused to find an implied restrictive covenant.”)).
In Shoneys, Inc. v. Cooke, 353 S.E. 2d 300 (S.C. App. 1985), the court stated “ all doubts
regarding the creation of an implied reciprocal negative easement must be resolved in favor of the
35
freedom of land from servitude.” Id. at 304.
The cases cited by NTVPOA demonstrate that the doctrine does not fit these facts. NTVPOA
cites Sanborn v. McLean, 206 N.W. 496 (Mich. 1925) where the Michigan court applied a
“reciprocal negative easement’ to block the construction of a gasoline filling station on Lot 86 in a
residential neighborhood. Id. at 498. The court found that the “subdivision was planned strictly for
residence purposes” as to the street in question. Id at 497. Most of the deeds in the subdivision
contained a restrictive covenant that “nothing but residences shall be erected upon the premises.” Id.
Some lots in the subdivision were sold without the restriction. Id. The court found that “ For upward
of 30 years the united efforts of all persons interested have carried out the common purpose of making
and keeping all the lots strictly for residences, and defendants are the first to depart therefrom.” Id.
at 497. In Sanborn, the doctrine of reciprocal negative easements was applied to block commercial
devolvement in a residential neighborhood.
The NTVPOA cites Scheuer v. Britt, 118 So. 658 (Ala. 1928). In Scheuer, the owner of
a tract of land, while working with a real estate company, platted the tract into lots, blocks and streets
and offered the lots “solely for residential purposes.” Id. at 659. An auction was held where it was
publically announced that the lots were for “residential purposes only.” Id. In consideration for its
work on the development, the owner conveyed the east half of the subdivision the real estate
company. Id at 659. A restrictive covenant was contained in “substantially all of the lots” including
the lot sold to Scheuer. Id. A lot across the street from Scheuer was conveyed to Britt with no
restrictions. Id. Britt began work on a commercial business (gas station) on his lot and suit was filed
by Schuer to stop the non-residential construction on the lot. Id. The Alabama court found that the
lot purchased by Britt was also restricted to residential purposes. The court stated:
36
Where the owner of a tract of land adopts a general scheme for its
improvement, dividing it into lots, and conveying these with uniform restrictions as
to the purposes for which the lands may be used, such restrictions created equitable
easements in favor of the owners of the several lots, which may be enforced in equity
by any one of such owners. Such restrictions are not for the benefit of the grantor only,
but for the benefit of all purchasers . The owner of each lot has as appurtenant to this
lot a right in the nature of an easement upon the other lots, which he may enforce in
equity.
118 So. at 660 (quoting, 4 Thompson on Real Property § 3398).
In McKenrick v. Saving Bank of Baltimore, 197 A. 580 (Md. 1938), a case cited by NTVPOA,
the Maryland Court of Appeals refused to apply the doctrine. In McKenrick, some lots in the area
conveyed by a common grantor contained restrictions on construction and setbacks and others did not.
Id. at 585. The court noted that “the doctrine that land may be thus indirectly subjected to building
and use restrictions” had been recognized in Maryland but found the setback and related restriction
did not apply to the land in question. Id. at 586. The court stated:
Covenants creating restrictions are to be construed strictly in favor of the

freedom of the land, and against the person in whose favor they are made; and that the
burden is upon one seeking to enforce such restriction where they are not expressed
in a deed to show by clear and satisfactory proof that the common grantor intended
that they should affect the land retained as part of a uniform general scheme of
development.
197 A. at 584.
NTVPOA also cites several other cases from Maryland. In Turner v. Brocato, 111 A. 2d 855
(Md.1955), suit was filed by”owners of homes in a residential development” whose lots were “subject
to restrictions against use for business” for declaratory judgment that “ the lot of the [defendant] was
part of the development and, as such similarly restricted, although it had been deeded by the developer
free of restrictions.”Id. at 857. The defendants intended to use the property for a commercial cleaning
business. Id. at 860. The Turner court explained the history of implied reciprocal servitude and the
37
correct context in which the doctrine is applied. The court stated:
In II American Law of Property, Sec. 9:30, p. 426, the author discusses the
theory of implied reciprocal servitude, arising at the time of purchase of restricted land
against the common grantor, contrary to his understanding with the prior purchaser,
fails to insert express restrictions in later sales of the remaining lands. In Sec 9;93, p.
431, there is discussed the situation of a uniform plan of development with no express
promise to earlier purchasers that lots sold later would be restricted, and the sale of
lots without restrictions at a later date. It is said that the court in several recent cases
have recognized the existence of an implied reciprocal servitude against these
remaining lots based upon the existence of the general plan.
111 A. 2d at 865.
The Turner court discussed a prior decision where the plan of a developer required stone
or brick construction and the developer conveyed a number of lots with the restriction in the deed.
Id. One deed was given without the restriction and suit was filed to enjoin construction of a wood
frame dwelling. Id.
The principle which supports the judgment in this action is that, where an
owner of land contracts with the purchaser of successive parcels in respect to the
manner of the occupation and improvement of such parcels he thereby affects the
remainder of the land with an equity which requires it also to be occupied and
improved in conformity to the general plan; this equity is binding upon a subsequent
purchaser of the remaining parcel, who has notice of the prior agreement, though his
legal title be unrestricted.
111 A. 2d at 865 (quoting, Bimson v. Bultman, 3 App. Div. 198, 38 N.Y.S. 209, 211).
The Turner court applied the doctrine to block “commercial” development in the residential
neighborhood to maintain conformity of lots. 111 A. 2d at 866. The same is true of La Fetra v.
Beveridge, 199 A. 70 (N.J. 1938), a case cited by NTVPOA. In La Fetra, the New Jersey Court of
Appeals affirmed per curiam an opinion by the chancery judge who blocked commercial
development on lots in a residential subdivision. Id. at 74.
In Schovee v. Mikolasko, 737 A. 2d 578 (Md. 1999), another case cited by NTVPOA, the
Maryland Court of Appeals refused to apply the doctrine of negative reciprocal easement to block a
38
developer from further subdivision of a multiple acre lot in a subdivision. Id. at 580. In Schovee, the
developer platted lots 1-25 each with multiple acres. Lot 7 was 50 acres. Id. at 580. The developer
recorded covenants that clearly did not include lots 6 and 7. Id. The covenants restricted use to
residential and only one residence per lot. Id. The developer later started to subdivide lot 7 into
multiple lots. The prior purchasers of lots in the subdivision sued to stop the division of lot 7 under
the doctrine of implied negative reciprocal easement. In Schovee, the Maryland Court of Appeals
refused to apply the doctrine. Id. at 589. The court found that the building restrictions did not apply
to Lot 7. Id. The court stated:
When the developer uses such an instrument to create the restrictions and
define the land subject to them, however, that instrument is not merely a piece of
evidence, to be viewed with other evidence in determining whether there was a
general plan of development and what property is subject to the restrictions imposed
on that development. The instrument ordinarily suffices to establish both facts.
737 A. 2d at 589.
The same principle applies in the instant case. The deeds define the land subject to the
covenants -- the lot conveyed. (Paragraph 11 “It is understood and agreed that the land conveyed
herein shall be bound by the rules and regulations formulated by the Board of Governors of
Natchez Trace Village,...”) ( emphasis added).
NTVPOA cites Roper v. Camuso, 829 A. 2d 589 ( Md. 2003). In Roper, one lot owner sued
to enforce fence height restrictions in the neighborhood. Id. at 592. All of the lots in the subdivision
were subject to the restrictions except the lot conveyed to the plaintiff. The covenants were referenced
in her deed but a copy was not attached and recorded with her deed. Id. at 593. The trial court found
that the plaintiff lacked standing because her lot was not subject to the covenants. Id. On appeal,
Roper argued the doctrine of implied negative reciprocal covenants applied to allow her to enforce
39
the fence restrictions. The Court of Appeals found that Roper had standing to sue as follows:
Ms. Roper herself assumed she was subject to the covenants, and here neighbors
also believed her lot to be subject to the covenants. There is no evidence in the record
indicating that the developer intended specifically to exclude Ms. Roper’s lot from the
general plan of Spring Meadows. The common plan indicated by the evidence would
suffer if Ms. Roper’s lot were determined not be subject to the covenants. Here lot
would be the only one in the community excepted from the burdens of the Spring
Meadows restrictions. Such a result is contrary to the stated purpose of the covenants.
Id. at 609.
The Roper court noted that the implied doctrine was intended to “provide redress for owners
of lots burdened by covenants who purchased their lots believing that the common grant intended all
subsequent lot sold to be subject to the same restrictions. “ Id. at 606. The court stated “ the doctrine
is meant to preserve the uniform general scheme of development originally intended by the grantor.”
Id.
NTVPOA cites Land Developers, Inc. v. Maxwell, 537 S. W. 2d 904 (Tenn. 1976) which
concerned certain tracts of land outside Knoxville TN., in an area known as Mimosa Heights. Id. at
907. The land in question was once owned by a common grantor who deeded certain tracts of land
with restrictions for residential use with one residence per lot and associated building size restrictions.
Id.
Other parcels of land were conveyed with no restrictions. Id. The preamble to the restrictions
in most of the deeds included a reference to a general plan for an upscale residential neighborhood.
Id. There were signs along the highway bearing the legend “Mimosa Heights.” Id. There was no
recorded plat but some drawings and plats showing a general plan for residential development of the
area. Id. Residents in the area filed suit when they saw grading work and signs posted on certain
parcels “offering it for sale for commercial development.” Id. at 910. The Tennessee Supreme Court
considered the applications of “ reciprocal negative easements.” Id. at 912. First, the court noted the
40
doctrine of negative reciprocal easements was to be applied with “great care.” Id. The court stated:
“ We think it quite apparent that the doctrine ought to be used and applied with extreme caution, for
it involves difficulty and lodges discretionary power in a court of equity, in a degree, to deprive a man
of his property by imposing a servitude through implication.” Id. at 913 (citing, McCurdy v. Standard
Realty Corp., 175 S.W. 2d 28, 30 (Ky. 1943)). The Tennessee court in Maxwell applied the doctrine
to bar commercial development on portions of the land in question and found that land should be
restricted to residential and not commercial. Id. at 919.
NTVPOA also cites two Texas cases. These cases involve a similar fact pattern and do
not support this appeal. In Lehmann v. Wallace, 510 S. W. 2d 675 (Tex. App. 1974), suit was filed
to block the defendants from re-subdividing lots in a subdivision so that two residences could be
constructed instead of the one residence per lot as required by the covenants. Id. at 678-79.
Approximately 73 per cent of the deeds in the subdivision contained the restrictions while other deeds
did not. Id. at 679. The Texas Court of Appeals applied the theory of “mutual negative equitable
easements” to block the re-subdivision of lots and the construction of more than one residence per
lot. Id. at 681-82. In the instant appeal, NTVPOA also cites H.H. Holloway Trust v. Outpost Estates
Civic Club Inc., 135 S. W. 3d 751 (Tex. App. 2004). In H.H. Holloway, the developer created a
subdivision with 52 lots. Id. at 752. A plat and declaration of covenants were recorded which
restricted use of the lots to residential. Id. The developers sold two lots to their daughter. The deed
to the daughter did not refer to the deed restrictions but she testified that she knew the lots were
restricted to residential. Id. at 753 The two lots were later conveyed to H.H. Holloway Trust who
wanted to develop the lots for commercial purposes. Id. at 753. The Texas court found that the
restrictions were implied and blocked the commercial development on the two lots. Id at 757.
In Forster v. Hall, 576 S. E. 2d 746 (Vir.2003), a case cited by NTVPOA, the court applied
41
the doctrine of implied reciprocal negative easement to block “mobile homes” from a residential
subdivision. In Forster, the vast majority of the deeds in the subdivision contained a restriction
prohibiting mobile homes. Id. at 747. Forster’s deed did not contain the restriction. Id. The court
found an implied reciprocal negative easement prohibiting mobile homes in the subdivision. Id. at
752.
NTVPOA also cites two Arkansas case. In Warren v. Detlefsen, 663 S. W. 2d 710 (Ark.
1984) the court implied a reciprocal negative easement restricting all lots to single family use only.
The court blocked construction of duplexes in a subdivision. Id. at 711. In Jones v. Cook, 611 S.W.
2d 506 (Ark. 1981), the court enforced a restrictive covenant in a deed which prohibited mobile
homes. The lot owner claimed that the restriction could not be enforced because the developer had
in one instance conveyed a tract without the restriction. Id. at 506. The court found that the restriction
against mobile homes should be enforced. Id. at 508.
NTVPOA cites Skyline Woods Homeowners Association, Inc. v. Broekemeier, 758 N. W.
2d 376 (Neb, 2008) which case does not concern an implied reciprocal negative easement.
Broekemeier concerned “whether the district court was correct in concluding that an implied
covenant” restricts the land to use as a “golf course.” Id. at 387. The residents were not attempting
to gain control of the golf course. The only issue was whether the land had to be used as a golf course.
That case is not on point.
In the instant case, the Culleys are not attempting to change the lake to some other use.
Broekemeier concerned whether or not the real property was burdened with an implied covenant
limiting its use to a golf course. The owners of a golf course which eventually became Skyline Golf
Club, Ltd., developed a residential area adjacent to the golf course and sold lots adjoining the golf
course to the plaintiffs. Id. at 380-81. The developers advertised the golf course as central to the
42
residential development. Id. The golf course was later sold to another entity and because Skyline
Country Club, LLC. Id. The country club filed for bankruptcy and the golf course was closed and
sold out of the bankruptcy court to Liberty Building Corporation, free and clear of liens but subject
to covenants, easements and restrictions of record. Id. Liberty did not reopen the golf course and the
property deteriorated into “horrible condition” and became an “eyesore.” Id. at 381. The adjoining
landowners sued to require Liberty to reopen the golf course. Id.
The Broekemeier court found that “homeowners who bought their property relying on the
proximity and existence of the golf course should be protected by implied restrictive covenants that
the property be maintained as a golf course.” Id. at 390. The court concluded that “an implied
restrictive covenant requiring that [the land] be used as a golf course burdens and runs with the golf
course property.” Id. at 390. 17Broekemeier did not concern an implied reciprocal negative easement,
the argument made by NTVPOA in this appeal. Regardless, the Culleys are not attempting to use the
lake real property for purposes other than a lake. Furthermore, Broekemeier did not involve the an
owner’s association attempting to control and regulate the activities on the golf course. The owners
of the golf course were left with control of the golf course property.
None of the cases cited by NTVPOA support the result it seeks in this appeal.
IX. This appeal is moot–there is a final judgment as to the Cockrells- NTVPOA can not
engage in selective enforcement of its alleged rules.
This appeal is moot and seeks an advisory ruling. The NTVPOA did not appeal as to the
Cockrell defendants. The NTVPOA contended in the Pre-trial order that the “NTVPOA has the right
17
NTVPOA also cites Ute Park Summer Homes Association, Inc. v. The Maxwell Land
Grant Co., 427 P. 2d 249, 252 (N.M. 1967) where land on a plat shown as a “golf course” was
being changed to a different use. The Culleys are not attempting to turn the lake into something
else. In fact, they are trying to use the lake and allow the residents to use it as it was intended.
These cases are simply not on point.
43
and authority to impose penalties against lot owners for violation of the Natchez Trace Village
covenants and/or Rules and Regulations promulgated by the NTVPOA Board of Governors, including
Rules and Regulations governing Culley Lake.” (Culley R. E. 1). The Cockrell defendants own a lot
on Culley Lake and contented that the NTVPOA did not have authority to make rules prohibiting
skiing, tubing, and jet skis on the Lake and that as lot owners they had the right to engage in those
water sports as a part of their right to use Culley Lake. The Cockrells contended that they could not
be fined for such conduct.(Culley R. E. 1). The judgment is final as to the Cockrells. By failing to
appeal as to the Cockrells, the NTVPOA is barred by final judgment from enforcing such rules
against the Cockrells. Phillips v. Kelley, 72 So. 3d 1079, 1084 (Miss. 2011) (where a party litigates
a case to final judgment and no appeal is taken the judgment is final).
The Cockrells are free to engage is water sports on Culley Lake and the NTVPOA can not
challenge that conduct.
The NTVPOA can not engage in selective enforcement of the authority it seeks in this appeal
as to other residents of Natchez Trace Village. Hinds County Board of Superv. v. Leggette, 833 So.
2d 586, (Miss. 2002) (affirming the circuit court’s finding that the Board’s action “amounted to
nothing more than selective enforcement of the zoning regulations”); Johnstone v. Bettncourt, 16 Cal.
Rptr. 6, 195 Cal. App.2d 538, 541 (1961)(restrictions can not be selectively enforced) ; Gentry v.
Stricklin, 461 S.W. 2d 580, 581 (Ark. 1971)(same).
Even if the NTVPOA had authority to prohibit water sports on Culley (which it does not), it
is now barred from selective enforcement against other residents. This appeal is moot. The
NTVPOA is asking this Court to engage in an advisory opinion regarding its authority to establish
rules which it can not legally enforce. Monagahn v. Blue Bell, Inc., 393 So. 2d 466, 467 (Miss. 1980)
( review procedure should not be allowed for academic questions and the court will not issue advisory
44
rulings). This appeal should be dismissed.
CONCLUSION
The Culleys have owed Culley Lake for over sixty years. There are no covenants recorded on
the lake. The NTVPOA has no legal right to restrict the Culleys from skiing, tubing or jet skiing on
the lake they own and it has no legal right to control the lake. The NTVPOA does not own any part
of the lake. The Chancery Court correctly found that the covenants attached to the deeds do not grant
the NTVPOA the right to control the lake. The covenants attached to the deeds govern the lots. Any
attempt to expand the application of the covenants must be strictly construed.
The Chancery Court heard the testimony of the witnesses and reviewed the documentary
evidence. The Chancery Court correctly rejected the application of equitable estoppel and its findings
should be afforded great deference. The theory of implied reciprocal negative easement is applied
with great caution and only in very limited factual situations. Courts have used the theory to block
commercial development in residential areas and to ensure uniform building specifications on lots
in such areas. The Chancery Court should be affirmed.
The appeal is moot. The NTVPOA did not appeal as to the Cockrell defendants. The
NTVPOA is barred by final judgment from attempting to bar the Cockrells from skiing, tubing or jet
skis on Culley Lake, the very essence of this lawsuit. The NTVPOA can not engage in a selective
enforcement of its alleged rules. This Court should not issue an advisory ruling.
This the 24th day of December , 2018.
Lewis Culley, III, Nancy Culley

and Bethany Culley
s/ Gene D. Berry
Gene D. Berry
45
Gene D. Berry (MSB #2459)
Post Office Box 1631
Telephone: 601-898-0142
genedberry@berryfirm.net
Certificate of Service
I, Gene D. Berry, hereby certify that on 24th of December, 2018, I electronically filed the
foregoing with the Clerk of Court using the MEC system which sent notification of such filing to the
following:
Barry D. Hassell, Esq.

Alexander Bondurant, Esq
Copeland , Cook, Taylor & Bush P.A.
bhassell@cctb.com
abondurant@cctb.com
Steven H. Smith, Esq.

Steven H. Smith & Assoc., PLLC
ssmith@shsattorneys.com
William P. Thomas, Esq.

Butler Snow LLP
will.thomas@butlersnow.com
And I hereby certify that I have mailed by United States Postal Service the document to the
following non-MEC participants:
Honorable James C. Walker

P.O. Box 404
Madison, MS 39046
This 24 th day of December, 2018.
s/Gene D. Berry
Gene D. Berry
46
E-Filed Document Oct 25 2018 18:45:05 2018-CA-00425 Pages: 41

_______________________
NO. 2018-CA-00425
_______________________

ASSOCIATION, INC. APPELLANT
VS.

APPEAL FROM THE

CHANCERY COURT OF MADISON COUNTY, MISSISSIPPI
__________________________________________
BRIEF OF APPELLANT
ORAL ARGUMENT REQUESTED

___________________________________________
Barry D. Hassell (MSB #101149)

Alexander L. M. Bondurant (MSB #104553)
Telephone: (601) 856-7200
Facsimile: (601) 353-6235
Steven H. Smith (MSB# 7610)

Telephone: (601) 987-4800
October 25, 2018

CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons have an
interest in the outcome of this case. These representations are made in order that the justices of the
Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification
or recusal.
1. Natchez Trace Village Property Owners Association, Inc., Appellant.
2. Lewis L. Culley, III, Nancy Culley, and Bethany Culley, Appellees.
3. Barry D. Hassell and Alexander L. M. Bondurant of Copeland, Cook, Taylor &

Bush, P.A., and Steven H. Smith of Steven H. Smith & Associates, PLLC, attorneys
for Natchez Trace Village Property Owners Association, Inc.
4. Gene D. Berry of Gene D. Berry, PLLC, and Lewis L. Culley, III, Nancy Culley,
and Bethany Culley.
5. William P. Thomas of Butler Snow, LLP, attorney for Allen Cockrell and Paige
Weeks Cockrell.
6. Honorable James C. Walker, Madison County Chancery Court Judge.

Barry D. Hassell
Attorney of Record for Appellant, Natchez

Trace Village Property Owner’s Association,
Inc.
ii
Appellant requests oral argument. Oral argument may be helpful to the Court if, after
considering the briefs, the Court has questions concerning the facts and the law. Oral argument
will aid the Court in its decision-making process.
iii
TABLE OF CONTENTS Page(s)
CERTIFICATE OF INTERESTED PERSONS ............................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT ................................................................... iiii
TABLE OF CONTENTS .............................................................................................................. iii
TABLE OF AUTHORITIES ......................................................................................................... vi
STATEMENT OF THE ISSUES.................................................................................................... 1
STATEMENT OF ASSIGNMENT ................................................................................................ 2
STATEMENT OF THE CASE....................................................................................................... 2
A. Nature of the Case. .............................................................................................................. 2
B. Course of Proceedings and Disposition in the Court Below............................................... 3
C. Statement of the Facts. ........................................................................................................ 5
SUMMARY OF THE ARGUMENT ............................................................................................. 8
ARGUMENT ................................................................................................................................ 11
I. Standard of Review. .......................................................................................................... 12
II. NTVPOA has Express Authority to Govern the Lake. ..................................................... 12
a. Legal Standard for Interpretation of Covenants.......................................................... 12
b. The Lower Court Misapplied the Appropriate Legal Standard .................................. 12
III. The Culley Defendants are Equitablly Estopped from Challenging NTVPOA’s Right to
Regulate NTV Subdivision Common Areas, Including Culley Lake ........................................... 18
a. Equitable Estoppel as a Rule of Mississippi Law ....................................................... 18
b. The Lower Court Misapplied the Test for Equitable Estoppel in Mississippi ........... 19
c. The Actions and Inactions of the Culley Family on which the NTVPOA Relied Provide
the Basis for its Equitable Estoppel Claim ................................................................................... 19
d. The Lower Court Misappleid PMZ Oil. Co. v. Lucroy ............................................... 23
iv
IV. The Court Should Adopt the Doctrine of Implied Reciprocal Negative Easements ........ 26
a. Legal Doctrine of Implied Reciprocal Negative Easements ....................................... 26
b. The Elements of the Implied Reciprocal Negative Easements Doctrine are Clearly
Satisfied in this Action .................................................................................................................. 29
CONCLUSION ............................................................................................................................. 32
v
TABLE OF AUTHORITIES
Cases Page
A. D. Home Improvements Co. V. Hide-a-Way Lake,
393 So. 2d 1333 (Miss. 1981) ............................................................................................. 12, 17
Armstrong Tire & Rubber Co. v. Franks,

137 So. 2d 141 (Miss. 1962) ..................................................................................................... 19
Forster v. Hall,
576 S.E.2d 746 (Va. 2003)........................................................................................................ 27
Griffin v. Tall Timbers Dev., Inc.,

681 So. 2d 546 (Miss. 1996) ..................................................................................................... 12
Holloway Tr. v. Outpost Estates Civic Club, Inc.,

135 S.W.3d 751 (Tex. Ct. App. 2004) ........................................................................... n.8, n.17,
Jones v. Cook,
611 S.W.2d 506 (Ark. 1981)..................................................................................................... 25
Keener Props., L.L.C. v. Wilson,

912 So. 2d 954 (Miss. 2005) .............................................................................................. 11, 12
Kelso v. Robinson,
161 So. 135 (Miss. 1935) .......................................................................................................... 19
La Fetra v. Beveridge,
199 A. 70 (N. J. 1938)................................................................................................... n.17, n.19
Land Developers, Inc. v. Maxwell,

9537 S.W.2d 904 (Tenn. 1976).............................................................................................. n.17
Lehman v. Wallace,
510 S.W.2d 675 (Tex. Ct. App. 1974) ................................................................................... n.17
Mayor of Clinton v. Welch,

888 So. 2d 416 (Miss. 2004) ......................................................................................... 18, 19, 22
McKenrick v. Sav. Bank of Balt.,

197 A. 580 (Md. 1938) ............................................................................................................. 27
vi
PMZ Oil Co. v. Lucroy,
449 So. 2d 201 (Miss. 1984) ......................................................................... 5, 18, 23, 24, 25, 27
Roper v. Camuso,
829 A.2d 589 (Md. 2003) ................................................................................................... 27, 28
Sandborn v. McLean,
206 N.W. 496 (Mich. 1925) ..................................................................................................... n.9
Scheuer v. Britt,
118 So. 658 (Ala. 1928) ......................................................................................................... n.17
Schovee v. Mikolasko,
737 A.2d 578 (Md. Ct.1999)............................................................................................... 26, 28
Skyline Woods Homeowners Ass'n v. Broekemeier,

758 N.W.2d 376 (Neb. 2008)................................................................................................. n.17
Stanton v. Bryant,
55 Miss. 261 (Miss. 1887) ........................................................................................................ 19
Stokes v. Bd. of Dirs. of Lake Cavalier Improv. Comp.,

654 So. 2d 524 (Miss. 1995) ............................................................................................ 12, n.10
Turner v. Brocato,
11 A.2d 855 (Md. 1955) .......................................................................................................... n.9
Warren v. Detlefson,
663 S.W.2d 710 (Ark. 1984)........................................................................................... n.9, n.17
White Cypress Lakes Dev. Corp. v. Hertz,

541 So.2d 1031 (Miss. 1989) .................................................................................................... 27
Treatise Page
Restatement 3d. of Property: Servitudes
§ 2.14...................................................................................................................... 11, n.9, 26, 27
vii
STATEMENT OF THE ISSUES
1. The lower court overlooked the requirements of Mississippi law when it failed to
interpret and apply the Natchez Trace Village (hereinafter “NTV”) Subdivision covenants in their
ordinary sense in conjunction with the entire document and in relation to the circumstances
surrounding their formation, adoption and nearly 40 years of application.
2. The lower court was manifestly wrong and/or clearly erroneous in failing and
refusing to find that the Culley Defendants had waived their rights to object to regulation by the
Natchez Trace Village Property Owner’s Association (hereinafter “NTVPOA”) of Culley Lake
a/k/a Natchez Trace Village Lake a/k/a Big Lake. Alternatively, the lower court was manifestly
wrong when it failed to find that the Culley Defendants were equitably estopped from denying
regulation of the Lake by the NTVPOA.
3. In light of its numerous factual findings, the lower court erred in refusing to find
that an Implied Reciprocal Negative Easement granting NTVPOA the authority to regulate the
Lake existed in favor of the NTVPOA.
1
STATEMENT OF ASSIGNMENT
Appellant, Natchez Trace Village Property Owner’s Association, Inc., hereby requests that
the Supreme Court retain this appeal. It concerns a vital matter of first impression, i.e. the
necessitous adoption of the widely accepted legal doctrine of Implied Negative Reciprocal
Easements, as well as fundamental and urgent issues of broad public importance related to proper
legal interpretation and application of subdivision covenants, which require prompt and ultimate
resolution by this Court.
STATEMENT OF THE CASE
A. Nature of the Case.
As the lower court succinctly and correctly stated, “this case boils down to one central
question . . . whether NTVPOA has the right, either express or implied, to regulate Culley Lake.”
R72. 272; RE 2.007.1 This appeal arises from the erroneous finding by the lower court that
NTVPOA has no authority to regulate the NTV Subdivision’s centerpiece and marketed primary
attraction, Culley Lake a/k/a Natchez Trace Village Lake a/k/a Big Lake (hereinafter “Lake”).
This decision came despite nearly 40 years of prior governance by NTVPOA and repeated active
and passive conduct by the Culley Family2 acknowledging and acquiescing to NTVPOA’s
1
"R72" refers to the Corrected Single Record on Appeal, and "R71" refers to the Single Record of on
Appeal – Exhibits for Appeal to Mississippi Supreme Court. "RE" refers to the Record Excerpts, which
include excerpts from the Record on Appeal in both the Corrected Single Record on Appeal and Record
of Exhibits on Appeal. The page number follows each period, i.e. RE 2.007 is “Record Excerpt 2 at Page
7” and R72. 272 is Corrected Single Record on Appeal at page 272.
2
NTV Subdivision was developed in the 1960s by Lewis Culley, Sr., Lewis Culley Jr., and Gus Noble
(hereinafter “Culley Developers”). Lewis Culley, Jr. is the father of Lewis L. Culley, III and Bethany
Culley (hereinafter “Culley Defendants”). Bethany Culley (Sr.) is the mother of Culley Defendants. Lewis
Culley, Jr. was a predecessor owner of the Lake, who conveyed the Lake to his wife Bethany Culley. The
Culley Defendants inherited the Lake property through their mother’s estate. R72. 137-39, 715; RE 3; RE
2
authority to regulate the Lake. It is this authority that the Culley Defendants now challenge some
40 years later, and the lower court’s decision has now created an untenable situation.
B. Course of Proceedings and Dispositions in the Court Below.
The legal controversy at issue began when the Culley Defendants (Plaintiffs in the initial
action) filed a motion for a preliminary injunction against NTVPOA (Defendant in the initial
action) in Madison County Chancery Court (Cause No: 2014-456-B) seeking to prevent the
NTVPOA Board of Governors from making urgent and necessary repairs to the Lake. R72. 138;
RE 3.003. NTVPOA filed a counter-motion for preliminary injunctive relief against the Culley
Defendants to estop them from denying access to the Lake for repairs and to further require the
Culley Defendants to abide by NTVPOA Lake Rules and Regulations. Id. The Chancellor denied
the Culley Defendants motion for preliminary injunction and granted NTVPOA’s counter-motion
for preliminary injunctive relief in 2014. R72. 43-46; RE 4. Prior to the permanent injunction
hearing, the Culley Defendants’ action was dismissed by the Chancellor due to their lack of
standing at the time. R72. 136-39; RE 3. Following this dismissal due to the Culley Defendants’
own legal deficiencies, the Culley Defendants and Allen Cockrell and Paige Weeks Cockrell
(hereinafter “Cockrell Defendants”) resumed conduct that violated the NTVPOA Lake Rules and
Regulations, to which they had just been previously enjoined.
Due to this conduct, NTVPOA filed its initial pleading in the instant action seeking
injunctive relief against the Culley Defendants and the Cockrell Defendants to prevent immediate
and irreparable harm to the NTVPOA and its homeowners. R72. 21-42; RE 5. The Culley
9. The Culley Developers, Culley Defendants, and Bethany Culley are hereinafter referred to as “Culley
Family.”
3
Defendants and Cockrell Defendants both filed Answers and Counterclaims. R72. 176-81 & 184-
97; RE 6. A hearing was held on August 30, 2017 regarding NTVPOA’s request for a Temporary
Restraining Order or Preliminary Injunctive Relief. The Madison County Chancery Court denied
the request and expedited the trial setting. R72. 182-83; RE 7.3 A two-day trial was held on
December 4th and 6th, 2017.
On February 20, 2018, the lower court issued its Opinion and Judgment. R72. 266-80; RE
2. In its Opinion, the court stated the case ultimately “boils down to the one central question upon
which the assorted prayers for relief flow: whether NTVPOA has the right, either express or
implied, to regulate Culley Lake.” R72. 272; RE 2.007.
As to the express argument, the lower court found the Culley Defendants own fee simple
title to Culley lake “subject [only] to the perpetual use easement granted to the property owners”
in the covenants attached to their deeds. R72. 275; RE 2.010 (emphasis in original). Regarding
any implied rights of NTVPOA to regulate Culley Lake, the court refused to apply the doctrine of
equitable estoppel or the doctrine of Implied Reciprocal Negative Easements.
Addressing equitable estoppel, the lower court concluded that, even though “the Culleys
failed to affirmatively assert their rights as property owners of Culley Lake until approximately
2014, well over thirty [years] after the Board first enacted rules and regulations on the lake,” that
passive conduct alone did not rise to the standard required under Mississippi law to invoke
equitable estoppel. R72. 276; RE 2.011. In so holding, the court opined that the doctrine of
3
The Court noted that, “And at this point this Court, although it probably feels that the plaintiff [NTVPOA]
very well might prevail on the merits, it is certainly an open question that this Court can have full confidence
in that. But more precisely, this Court does not find or at least with the limited evidence here today, that
any irreparable harm will indeed befall anyone in the next 65 to 70 days.” R72. 475.
4
equitable estoppel espoused in PMZ Oil Co. v. Lucroy, 449 So. 2d 201 (Miss. 1984) was
inapplicable to this case. R72. 275-76; RE 2.010-011.
Regarding the doctrine of Implied Reciprocal Negative Easements advanced by NTVPOA,
the chancellor found a lack of persuasive evidence that the Culley Developers ever intended the
Lake to be subject to covenants. R72. 277-78; RE 2.012-013.
The remaining issues adjudicated by the lower court are not presently before this Court on
appeal. NTVPOA filed its Notice of Appeal of the lower court’s Opinion and Judgment as to the
judgment in favor only of the Culley Defendants on March 21, 2018. R72. 289-90.
C. Statement of the Facts.
In addition to the facts surrounding the procedural history partially set out in Section B,
supra, the following additional facts are relevant to the issues before the Court:
In the early 1960s, NTV was developed by the Culley Developers and marketed as a
“Community governed by the homeowners . . . highly restricted” and “complete in every detail.”
R71. 232; RE 8. The Culley Defendants are the heirs and successors in interest to the Culley
Developers. R72. 276, 715; RE 2.002; RE 9.4 Emphasized in the promotional materials for the
subdivision was the centerpiece of the new subdivision, the Lake.5 As lots were sold in the
subdivision, covenants for the entire community would be attached to each individual lot by deed.
R72. 384; RE 11. The relevant covenants affecting NTV are as follows:
4
Developer, Lewis Culley, Jr. conveyed the portion of the Lake, to which the Culley Defendants claim
ownership, to Bethany W. Culley, mother of the Culley Defendants. R71. 21-23; RE 10. The Culley
Defendants claim title to that portion of the Big Lake through inheritance from their mother, Bethany W.
Culley. R72. 137-39, 715; RE 3.003; RE 9.
5
The lower court found the same, noting the “subdivision’s primary attraction has been a thirty-acre lake .
. . .” R71. 267; RE 2.002.
5
3. No noxious, offensive, dangerous or illegal activities shall be carried on upon
any of said property, undeveloped lots, roads or other property in Natchez Trace
Village, nor shall anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood. Particular reference is made to the
operation and use of firearms and recreational vehicles.
11. The Board of Governors may make such rules and regulations affecting the use
of the subject property as they so desire, said rules and regulations to include, but
not limited to the following:
(a) Any structure for mooring boats to be erected shall be first

submitted to the Board of Governors with complete plans and
specifications, which specifications shall require construction of
treated lumber and said structure must be approved by the Board of
Governors as to the width, height, location, design and
specifications of any structure. No structure of wood shall be
erected that is not neatly painted with two (2) coats of paint. No
piers or any other structure shall be erected or shall extend into the
lake abutting the property, said lake being known as the Natchez
Trace Village Lake.
(b) With the permission of the Board of Governors lot owners may
permit guests to maintain boats on their property, provided that such
privileges do not interfere with the other property owners rights and
privileges; however, no boat of any kind owned by any person other
than the owner of the lot in the herein above described land shall be
allowed to be moored or maintained in any adjacent water on a
permanent basis.
(c) The owner of each lot in Natchez Trace Village shall annually
pay a maintenance charge for the purpose of creating a fund to be
known as the “Natchez Trace Maintenance Fund.” The amount of
the annual charge may be fixed by the Board of Governors but in no
event shall exceed One-hundred Fifty Dollars and 00/100 ($150.00)
per year, per lot. The purpose of the maintenance fund, among other
things, may include but is not limited to the upkeep of public right-
of-ways, insect control, employment of a watchman, repair and
maintenance of any facility designed for the benefit of the
property owners in the subdivision and the payment of any taxes
on any facility which provides for the general benefit of the lot
owners.
(d) The Board of Governors shall have the power and authority
to formulate rules and regulations in addition to those herein set
out, which rules and regulations in the opinion of the Board of
6
Governors shall add to the beneficial use of the subject property
and shall contribute to the safety and beauty of the property.
13. The owner of the lot conveyed herein shall have the perpetual right to use
the entire lake known as Natchez Trace Village Lake, and the owners of lots
abutting on the lake shall use their lot as a means of ingress and egress to said lake.
As to owners of lots which do not abut the lake, said owner shall be provided, along
with other owners of lots not abutting the lake, with a common means of ingress
and egress to the lake.
R72. 269-71; R71. 207-209; RE 2.004-005; RE 12.6 (emphasis added).
Every lot sold by the Culley Developers in the NTV Subdivision has a similar set of
covenants attached to it, including Lake front lots whose property lines extend into the Lake. R72.
269; RE 2.004; RE 40. The Culley Developers retained some property within the NTV
Subdivision including certain lots the Culley Defendants own and the area that now makes up the
middle of the Lake that does not fall within the legal descriptions of the Lake front lots. R72. 269;
RE 2.004; R72. 734-35; RE 13. Although shown on promotional materials, maps and considered
part of the NTV Subdivision, these properties do not have covenants attached to their deeds. R71.
232-33, 235, 228-229; RE 8; RE 14.001-002; R72. 269; RE 2.004.
NTVPOA was incorporated in 1975 “to enhance the beneficial use of the property in
Natchez Trace Village and to contribute to the safety and beauty of the property and to do all
further lawful actions found to be reasonably necessary or convenient in connection therewith.”
R71. 378; RE 15.001. The official Charter states the NTVPOA shall be operated “for the benefit
of all the residents of the community,” and shall have the power to own and maintain common
6
When reference is made to the Covenants, we reference them as they appear in either the “Yellow Book”
R71. 207-09; RE 12.001-003 or as they appear in the original promotional materials which are attached to
most of the lots in NTV Subdivision R71. 234; RE 12.004. Testimony in the record shows that over time,
covenants were removed when sewers were installed in the NTV Subdivision or lending practices changed
and a re-numbering of the covenants was done in the “Yellow Book” distributed to property owners. R72.
442-443.
7
areas, including lakes, and to “enforce covenants for preserving the appearance of the area.” R71.
374; RE 16.002. As noted in covenants attached to each deed, the lot owners have a perpetual
right to use the Lake. R71. 234; RE 12.004 at Covenant 14. Likewise, each deed grants the
NTVPOA Board of Governors the right to “make such rules and regulations affecting use…” R71.
234; RE 12.004 at Covenant 12. The Culley Developers subsequently turned over maintenance of
the NTV Subdivision, including the Lake, to NTVPOA. R71. 381-84; RE 17.
For nearly 40 years, the NTVPOA through its Board of Governors has been responsible
for the Subdivision’s general regulation and the enforcement of covenants, including regulation of
the Lake and activities thereon.7 For instance, the Board of Governors placed restrictions on fishing
from time to time (See, e.g. R71. 420, 455, 456-57, 458-59; RE 18.001-006), and other rules and
regulations affecting the general use of the Lake were put in place depending on various
circumstances. See, e.g. R71. 411-12, 416, 418, 425; RE 18.007-011. These rules and regulations
were all put in place by the NTV Subdivision’s elected governing body, created by the Culley
Developers to enhance NTV Subdivision property values, and were made to ensure the Lake would
be a safe and well-maintained jewel of the NTV Subdivision. The NTVPOA Board of Governors’
authority to regulate property in the NTV Subdivision, including the Lake, went unchallenged for
nearly 40 years until a dispute arose regarding a 2010 regulation. R72. 268; RE 2.003.
SUMMARY OF THE ARGUMENT
The lower court’s ruling leaves the NTV Subdivision and its governing body, NTVPOA,
in a profound quandary and has created an untenable situation. Based on the ruling, the Lake –
what the lower court recognized as the “primary attraction” of the subdivision - now sits
7
R72. 267; RE 2.002.
8
unregulated in this “planned private community,” which the Chancellor agreed is “governed by
the homeowners.” R72. 267; RE 2.002; R71. 232-33; RE 8.001-002. After decades of regulation
and thousands of its homeowners’ dollars spent consistently maintaining the Lake, the Court’s
opinion relegates NTVPOA’s authority to regulate the Lake to unworkable bits and pieces of it,
and not the entire Lake. This holding generates an impractical and unstable environment for all of
the NTV Subdivision property owners and creates a perpetual state of confrontation between the
NTVPOA and the Culley Family. It also enacted nothing more than uncertainty in the maintenance
and regulation of the Lake going forward.
The NTVPOA Charter states “it shall be operated for the benefit of all the residents, for
the safety and beautification of the village, and to adopt rules and regulations.” R71. 374; RE
16.002. All lot owners in the subdivision have a perpetual right to use the Lake by virtue of the
covenants attached to their deeds. These very same covenants grant the Board of Governors the
right to “make rules and regulations affecting use . . . .” R71. 234; RE 12.004.
The lower court’s ruling applies these covenants only to the metes and bounds descriptions
of the lots; however, 50 some-odd lots extend into the Lake itself. R71. 498; R72. 374; RE 19.
Thus, even the Culley Defendants do not have exclusive control over the entire Lake area, which
itself has no metes-and-bounds description. R72. 418; RE 20. Under the lower court’s holding,
NTVPOA can regulate activities on water in the Lake that sits within the property lines of the Lake
front lots, but cannot regulate activities on water in the Lake that sits over the area which has no
formal metes and bounds legal description. How is this possible?
The Culley Developer’s intent is outlined clearly in the Covenants, various regulatory
documents and promotional materials in the record, evincing a clear understanding that the Board
could regulate the Lake. RE 8; RE 12; RE 14; RE 16; RE 18; RE 21; RE 22.006-10; RE 31; RE
9
32; RE 34; RE 41; RE 42. Accordingly, the covenants, when read in their ordinary sense and
interpreted under the appropriate Mississippi law standard, expressly and/or by implication give
NTVPOA the authority to regulate the Lake.
Given the evidence presented at trial, the chancellor also erred in finding the Culley
Defendants were not equitably stopped from denying the Board the right to regulate the Lake. The
Culley Defendants are the direct successors to the Culley Developers. The promotional materials
place Culley Lake at the center of the community “governed by the homeowners.” R71. 232; RE
8. The NTVPOA Board of Governors has continuously maintained and regulated the Lake for
nearly 40 years, unchallenged by the Culley Family. RE 17; RE 18; RE 31; RE 32; RE 34. For
decades, Bethany Culley, who was the prior record owner of the Lake and served on the NTVPOA
Board of Governors, created and adopted rules and regulations for the NTV Subdivision, including
the Lake. R71. 438-39; RE 21; R72. 375-37, 389, 398-399, 512-515, 577-578; RE 22.
NTVPOA and its members have relied on the decades of active and passive actions by the
Culley Family, acknowledging and advocating the regulation of the Lake by NTVPOA. NTVPOA
has now been harmed by the Culley Defendants’ sudden change of position after their inheritance
of the Lake from their mother. The lower court’s interpretation of Mississippi cases regarding the
application of the doctrine of equitable estoppel was in error.
Lastly, the undisputed facts of this case, combined with the fundamental issue of broad
public importance related to proper interpretation and application of subdivision covenants, and
10
the total quandary and injustice created by the lower court ruling, creates the opportunity for the
Court to adopt the widely accepted legal doctrine of Implied Reciprocal Negative Easements.8
An equitable remedy, the doctrine states that a conveyance by a developer that imposes
restrictions, like subdivision covenants, on land that is included in a general plan or scheme (such
as a platted subdivision), creates an implied reciprocal restriction burdening the remaining lands
owned by the developer that are also included in the same general plan or scheme, if injustice can
be avoided only by implying the reciprocal restriction. See Restatement 3d. of Property:
Servitudes, § 2.14; R72. 586-89; RE 23. Stated another way, equity should impose restrictions on
Culley Lake, specifically NTVPOA’s authority to regulate the Lake, because it is included in the
general scheme of the NTV Subdivision and the Culley Defendants were on notice of said
restrictions for decades. This Court should take the opportunity to adopt the doctrine of Implied
Reciprocal Negative Easements and put a “round peg” in a “round hole” of Mississippi
jurisprudence.9
ARGUMENT
I. Standard of Review.
An appellate court in Mississippi will not disturb the findings of a chancellor “unless they
are manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Keener
Props., L.L.C. v. Wilson, 912 So. 2d 954, 956 (Miss. 2005). “Where there is substantial evidence
8
Sometimes referred to in treatises and case law as a reciprocal negative easement, an implied reciprocal
servitude, an implied equitable reciprocal servitude or simply equities attached to land. See e.g., Holloway
Tr. v. Outpost Estates Civic Club, Inc., 135 S.W.3d 751, 756 n.4 (Tex. Ct. App. 2004).
9
See Restatement 3d. of Property: Servitudes, § 2.14; Sandborn v. McLean, 206 N.W. 496 (Mich. 1925);
Turner v. Brocato, 11 A.2d 855 (Md. 1955); Warren v. Detlefson, 663 S.W.2d 710 (Ark. 1984).
11
to support a chancellor’s findings, [an appellate court] is without the authority to disturb a
chancellor’s conclusions, although it might have found otherwise as an original matter. However,
the chancery court’s interpretation and application of the law is reviewed under a de novo
standard.” Id.
II. NTVPOA has Express Authority to Govern the Lake
a. Legal Standard for Interpretation of Covenants
Under Mississippi law, the language of restrictive covenants should be read in its ordinary
sense, “considering the entire document as well as the circumstances surrounding its formulation
to ascertain its meaning, purpose and intents.” Stokes v. Bd. of Dirs. of Lake Cavalier Improv.
Comp., 654 So. 2d 524 (Miss. 1995). This Court has stated, “the restrictions and burdens should
be fairly and reasonably interpreted according to their apparent purpose.” Griffin v. Tall Timbers
Dev., Inc., 681 So. 2d 546, 551 (Miss. 1996) (citation omitted) (emphasis added).
This Court has further stated that one of the principal questions in construing restrictive
covenants is “primarily one of intention, and the fundamental rule is that the intention of the parties
as shown by the agreement governs, being determined by a fair interpretation of the entire text of
the covenant.” A. D. Home Improvements Co. V. Hide-a-Way Lake, 393 So. 2d 1333, 1336 (Miss.
1981).
b. The Lower Court Misapplied the Appropriate Legal Standard
The lower court’s interpretation of the pertinent NTV Subdivision covenants failed to
construe them in light of the circumstances surrounding their formation, their adoption, and the
12
nearly 40 years of application, as mandated under Mississippi law.10 As a result, a significant
practical application issue now exists given the lower court’s holding. Specifically, after nearly
40 years of regulating the entire Lake, NTVPOA now only has authority to regulate the outer
portions of the lake which have no visible and definite boundary line. How can NTVPOA regulate
some of the Lake, but not all of it? Conversely, how can the Culley Defendants regulate a portion
of the Lake for which they have no legal description or demarcation? The lower court’s
misapplication of the appropriate legal standard has caused this problem. This decision is also
clearly erroneous in light of the voluminous evidence confirming the intention of the Culley
Developers for NTVPOA to regulate the Lake. R71. 232-35; RE 8; R71. 438; RE 21; RE 18; R72.
389, 398-99; RE 22.003-005; RE 31; RE 33; RE 39.
Since inception and adoption, NTVPOA covenants have always been interpreted as
applicable to all property in the NTV Subdivision, including the Lake. The Lake is central to every
map and plat of NTV. RE 8.001; RE 14.001-002. The Chancellor correctly described it as the
“primary attraction” of the NTV Subdivision. R72. 276; RE 2.011. In promotional materials for
the NTV Subdivision, the Culley Developers marketed the Lake as being within the “Highly
Restricted” community “Governed by Homeowners.” R71. 232-33; RE 8.
The covenants are attached to each individual warranty deed in Phase 1 (including Lake
front lots) and Phase 3 of the NTV Subdivision and were recorded as a complete set and attached
to the entire plat filed of record for Phase 2 of the NTV Subdivision, with the sole exception being
the properties retained by the Culley Developers. R72. 269; RE 2.004. All lot owners universally
testified that they knew when they acquired their lots that there were rules in place governing the
10
See Stokes v. Bd. of Dirs. of Lake Cavalier Improv. Comp., 654 So. 2d 524 (Miss. 1995)
13
Lake. R72. 752-53, 761, 769; RE 24. The “Lake Rules” have been published in the “Yellow Book”
provided to all lot owners and originally posted at the gate of the spillway dam. R72. 376; RE 25.
The 50 Lake front lots extend into the Lake some 20 to 40 feet. R72. 374, 397; RE 26. The Lake
is specifically named in the covenants, and the covenants go so far as to give all subdivision lot
owners rights in the Lake. See, e.g. R71. 293-99, 310-313; RE 27. The Lake is not located in
some remote area untethered to the NTV Subdivision; it is the heart of the regulated development.
R71. 228-29, 232, 498; RE 14.001-002; RE 8; RE 19.001.
Contradicting all of the evidence, and in an attempt to advance a limited covenant
interpretation, the Culley Defendants’ expert theorized that the Lake is simply not a part of NTV
Subdivision. R72. 678-679, 689-690, 693; RE 28. As farfetched as that sounds, the lower court’s
ruling results in the same impractical conclusion, that Natchez Trace Village is simply the lots
between the two entrances that have covenants attached to their vesting deeds.11 Certain lots and
common areas which make up areas long subject to the NTVPOA covenants and regulations are
simply unrestricted islands within the defined NTV Subdivision.
How did the lower court reach this unworkable ruling? By focusing not on the covenants
as a whole but on two words in Covenant 11: “subject property.” Based on these two words, the
court concludes that all covenants – indeed, the entire document – only applies to the land
conveyed in the vesting instrument.12 R72. 273; RE 2.008. Covenant 11 expressly grants the
Board of Governors the right to make such rules and regulations affecting use. R71. 234; RE
11
Given there are no recorded plats for Phases 1 and 3, the lot numbers listed therein are simply references
to maps of the Culley Developers. See e.g., R71. 275-92; R72. 498; RE 29; RE 8.001; RE 14.
12
When reference is made to the Covenant number here, we reference them as they appear in R71. 234; RE
12.004.
14
12.004 at Covenant 11. The lower court noted that finding otherwise would lead to an
“unnecessarily broad reading” of the provision that grants the Board of Governors the power to
make rules and regulations. R72. 273; RE 2.008.
However, when discussing what rights the covenants grant, the opinion discusses Covenant
14, finding every property owner who has covenants attached to their deed has a “perpetual use
easement” granted to them to use “the entire lake known as Natchez Trace Village Lake,” even
though the Lake is not included in the land conveyed by metes and bounds description in each
deed. R72. 274-75; RE 2.009-010; R71. 234 at Covenant 14; RE 12.004. Although the area that
makes up the middle of the Lake has no legal description, the lower court concluded that this
“perpetual use easement” contained in the covenants operates to allow all property owners the
right to use all of the water that constitutes the Lake.13 This finding is inconsistent with the lower
court’s own position that the covenants only apply to the land conveyed. Moreover, a reading of
the covenants in their entirety, evinces the Culley Developers’ clear intent for the covenants to
cover all property within the NTV Subdivision. For example:
Covenant 4 states no structure “shall be erected on any of the lots in said subdivision”
without prior approval from the Board of Governors. R71. 234 at Covenant 4; RE 12.004.
(emphasis added). This goes well beyond covering simply the Chancellor’s cherry-picked “subject
property.” Indeed, this covenant itself shows the broader coverage rejected by the Chancellor. In
other words, not just lots with covenants specifically attached to them are subject to the Board of
Governors’ rules and the covenants’ restrictions.
13
As a matter of fact, the “perpetual use easement” includes a grant to lot owners whose lots do not abut
the lake, indicating “said owner shall be provided . . . with a common means of ingress and egress to the
lake.” R71. 234; RE 12.004 at Covenant 14. Although encumbering the Lake, this would not show up on
a title search of the tax parcel that makes up the Lake. R72. 451; RE 30.
15
Covenant 5 states no party can alter a structure after original construction “on a lot” until
such plans have been approved by the Board of Governors. Id. at Covenant 5. Covenant 5 applies
to the entire subdivision and implies there will be a regime in the NTV Subdivision for which
building and altering structures will adhere.
Covenant 7 does not speak directly to any lot or specific parcel of land, instead it dictates
how “all septic tanks” shall be installed. Id. at Covenant 7. Covenant 10 sets out rules for all lots
in the NTV Subdivision, not just lots with covenants attached. Id. at Covenant 10 (“No dwelling
shall be located on any residential lot nearer than 50 feet to the front lot line . . . . ”).
Covenant 11 sets out terms for the initial governance of the NTV Subdivision providing
perfect insight into the intent of the parties. Id. at Covenant 11. The first sentence states who will
make up the Board of Governors and that they will serve “until such time as ten (10) homes in the
area to be known as Natchez Trace Village shall be constructed and occupied by permanent
residents.” Id. (emphasis added). The covenant goes on to state if the parties listed therein all
die while serving as a board member, “the owners of the remaining property in Natchez Trace
Village shall meet” to determine the new board. Id. (emphasis added). At the time this covenant
was drafted, most of the areas in the Subdivision were unsold lots and thus, had no covenants
attached. Simply put, Covenant 11 shows that the intent of the Culley Developers was for all of
the property that makes up the NTV Subdivision to be governed by the NTVPOA, whether
covenants were attached to the property or not.
Covenant 12(c) in part establishes the creation of a “Maintenance Fund” which can be used
for “the upkeep of public right-of-way…[and] repair and maintenance of any facility designed for
the benefit of the property owners in the subdivision.” Id. at Covenant 12. Covenant 12 also goes
so far as to expressly name the Lake at the time “Natchez Trace Village Lake.” Id. Covenant 13
16
states that every home “shall be for single-family residential dwellings” and states how they can
be financed. Id. at Covenant 13. Covenant 15 states that every home “constructed on corner lots”
must face a certain direction, clearly showing an intent these covenants are meant to cover the
entire NTV Subdivision. Id. at Covenant 15.
As this Court has stated previously, one of the principal questions in construing restrictive
covenants is “primarily one of intention, and the fundamental rule is that the intention of the parties
as shown by the agreement governs, being determined by a fair interpretation of the entire text of
the covenant.” A. D. Home Improvements Co. V. Hide-a-Way Lake, 393 So. 2d 1333, 1336 (Miss.
1981).
It is clear from the record that the covenants were intended to cover all of the NTV
Subdivision property, including the Lake. The lower court’s decision to limit its interpretation of
the covenants to two words in a single phrase in a single covenant is inconsistent with Mississippi
law and must be reversed. The covenants give the Lake its name, “said lake being known as
Natchez Trace Village Lake.”14 The covenants expressly grant the NTVPOA the right to make
rules and regulations regarding property to which the covenants apply. R71. 373-74; RE 16.002;
RE 12.004 at Covenant 12. More than 50 lots that extend into the Lake have covenants attached
to them, and the Lake is expressly referenced in the covenants.
There can be no dispute that the Lake is the “centerpiece” of the NTV Subdivision, a
R71. 232; RE 8. Therefore, in light of the circumstances surrounding their formation, adoption
One wonders how, in light of on this statement, the Culley Defendants’ expert could conclude that the
14
Lake is not part of NTV Subdivision. R72. 678-79; RE 28.

17
and over their 40 years of application, as mandated under Mississippi law, the covenants expressly
grant NTVPOA the authority to regulate the Lake. For these reasons, this Court should reverse the
lower court’s holding that NTVPOA does not have the express right to regulate the Lake and
render that NTVPOA does have the right to regulate the common areas in the NTV Subdivision,
including the Lake.
III. The Culley Defendants are Equitably Estopped from Challenging NTVPOA’s
Right to Regulate NTV Subdivision Common Areas, including Culley Lake
As shown above, the covenants expressly grant NTVPOA the right to regulate NTV
Subdivision common areas, including the Lake. But even if they did not, the Culley
Defendants are equitably estopped as a matter of law from challenging NTVPOA’s authority
to regulate the same.
a. Equitable Estoppel as a Rule of Mississippi Law
Pursuant to Mississippi law, equitable estoppel is a rule of equity by which a court may
“hold a person to a . . . position assumed where otherwise inequitable consequences would result
to another who, having the right to do so under all of the circumstances of the case, has in good
faith relied thereon and been misled to his injury.” PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 206
(Miss. 1984) (quoting Stokes v. American Central Ins. Co., 52 So. 2d 358, 360 (Miss. 1951)). The
doctrine is generally defined as “the principle by which a party is precluded from denying a
material fact, induced by his words or conduct, upon which a person relied, whereby the person
changed his position in such a way that injury would be suffered if such denial or contrary assertion
was followed.” Mayor of Clinton v. Welch, 888 So. 2d 416, 426 (Miss. 2004) (quoting Koval v.
Koval, 576 So. 2d 134 (Miss. 1991)). Individuals will be subject to estoppel if their acts or
representations “might be reasonably expected, to influence the conduct of another, and does so
18
influence his conduct, and he would be prejudiced” if the actions were later retracted. Stanton v.
Bryant, 55 Miss. 261, 267 (1887). “When applying the doctrine of [equitable estoppel], ‘the test
is whether it would be substantially unfair to allow a person to deny what he has previously
induced another to believe and take action thereon.’” Mayor of Clinton, 888 So. 2d at 427 (quoting
Koval, 576 So. 2d at 138).
“Estoppel may arise from misleading silence or passive conduct joined with a duty to
speak. The doctrine lies at the foundation of morals; it is based on equity and good conscience.
Under its application fraud is suppressed; honest and fair dealing is promoted.” Kelso v. Robinson,
161 So. 135, 137 (Miss. 1935). This Court has pointed out “that an estoppel may arise from
misleading silence or persuasive conduct joined with a duty to speak . . . .” Armstrong Tire &
Rubber Co. v. Franks, 137 So. 2d 141, 151 (Miss. 1962). The Culley Family’s conduct for nearly
40 years certainly meets the standards required by Mississippi’s jurisprudence.
b. The Lower Court Misapplied the Test for Equitable Estoppel in Mississippi
The lower court found that the NTVPOA did not meet its burden in “proving that it changed
its position to its detriment” and the passive conduct of the Culley Defendants did not meet the
standard required to apply equitable estoppel. R72. 276; RE 2.011. The lower court did find that
the Culley Defendants “failed to affirmatively assert their rights as record property owners of
Culley Lake until approximately 2014, well over thirty [years] after the Board of Governors first
enacted rules and regulations on the lake.” Id. However, the lower court misapplied the doctrine
of equitable estoppel and completely overlooked the decades of active conduct by the Culley
Family affirming NTVPOA’s authority to regulate the Lake.
19
c. The Actions and Inactions of the Culley Family on which the NTVPOA Relied
Provides the Basis for its Equitable Estoppel Claim.
NTVPOA relied on the actions and inactions of the Culley Family that the covenants
applied to, and NVTPOA had authority to regulate, the Lake. The Culley Developers’ original
marketing brochure not only shows the Lake and dam as part of the NTV Subdivision, but also
marketed NTV Subdivision as a “Highly Restricted” community “Governed by Homeowners.”
R71. 232-33; RE 8. The Culley Developers informed perspective lot owners that “[e]ach lot
purchaser is provided with a copy of the protective covenants to be filed with his deed. The
covenants have been designed to give all lot owners maximum protection for their investment.”
Id. at RE 8.002. Accordingly, regardless of whether the NTV covenants were recorded over the
Lake itself, the NTV covenants are legally enforceable against the Culley Defendants, who
inherited the property from the Culley Developers and they should be estopped from denying such.
Pursuant to the covenants created by the Culley Developers, the homeowners in Natchez
Trace Village formed the NTVPOA in 1974. R72. 375; RE 22.001. Bethany Culley, mother of
the Culley Defendants, was on the Board of Governors when rules and regulations were
promulgated governing the use of the Lake. R72. 376; RE 25. The first rules governing the use
of the Lake were posted on a gate of the dam and on the spillway sometime around 1967-68. Id.
After the Culley Developers ceded all maintenance duties to the NTVPOA, the Board began
making rules and regulations for all common areas15 in the NTV Subdivision, without objection
15
“Common Area” was a phrase debated at trial because of its implications. As what was believed at the
time to be an amendment of Covenant 3 shows, areas within Natchez Trace Village that were undeveloped
(including unsold lots) were not only maintained by the NTVPOA but also were subject to the covenants,
even though covenants had yet to be recorded over them. R71. 438; RE 21.001; R72. 512-515; RE 22.006-
009.
20
from the Culley Developers. R72. 375-76; RE 22.001-002; See e.g., R71. 441, 452; RE 31; RE
32.
Bethany Culley played a critical role in amending the language for Covenant 3 which
prohibits “noxious, offensive, dangerous or illegal activities . . . upon any of said property,
undeveloped lots, roads or other property in Natchez Trace Village.” R72. 512-515; RE 22.006-
009. The record shows she was instrumental in broadening the language in covenants to cover
lands in the entire NTV Subdivision, even signing the minutes confirming the amendment.16 R71.
438; RE 21.001. This language appears in NTVPOA’s Yellow Book delivered to all lot owners.
R72. 515-16; RE 33. Although, the lower court concluded that the covenant change was not
amended of record properly in 1983, and elected to disregard it, the Chancellor missed the
significance of the amendment, whether it was properly recorded or not: it is undisputed proof
that the Culley Family agreed NTVPOA had the right to regulate common areas, including
the Lake. It unequivocally shows the intent of the Culley Family that NTVPOA have the
authority to regulate the Lake and activities thereon. Whether the covenant change was
recorded or not, the active conduct of Bethany Culley, by signing and endorsing the covenant
change, shows the intent of the Culley Developers that all property in the NTV Subdivision would
be governed by the covenants, not just the property that had covenants attached to the deeds of
conveyance.
In addition to this persuasive conduct, which NTVPOA relied upon and is sufficient to
equitably estop the Culley Defendants, there is four decades of misleading silence that estops the
16
Although amended by the Board and receiving a two-thirds majority vote approving the amendment, the
lower court found it was amended without following the proper protocol and thus invalid. R72. 274; RE
2.009.
21
Culley Defendants. For nearly 40 years, the Culley Family was silent with regard to the limits set
on how fishing was conducted (R71. 411-12 – 1990 Rule banning trot lines; RE 34.002); how
many and what types of fish could be taken from the Lake (R71. 413-14 – 1996 ban on harvesting
bass for 2 years; RE 34.003-004); unilateral decisions authorized by the Board to draw down the
Lake to make repairs (R71. 451-52 – 1981 Board of Governors decision to drawdown the Lake;
RE 34.005-006); and even restrictions on who can and cannot use the Lake (R71. 441 – 1990
annual meeting minutes noting installation of new gates and distributing keys; RE 34.007). This
repeated passive acceptance of NTVPOA authority further evidences the intent of the Culley
Family as to regulation of NTV Subdivision common areas, including the Lake.
In Mayor of Clinton, the Welch family relied on representations made by employees of the
City of Clinton that the treehouse constructed in their front-yard did not violate the zoning
classifications of the City. Mayor of Clinton, 888 So. 2d at 427. The lower court found and this
Court agreed that after spending much time and money in constructing the tree house, the Welches
“believed and relied upon the City employees’ representation and the actions or inaction that they
could construct their treehouse in their front yard.” Id. Thus, many years after the City sat by and
watched the Welches spend time and money constructing their tree house, the City was estopped
from changing its position and enforcing ordinances requiring the structure’s removal. Id. at 425.
The same facts exist here. The Culley Defendants knew that NTV Subdivision common
areas, including the Lake, were regulated with rules enforced on behalf of the property owners by
NTVPOA. R72. 752-53; RE 24.001-002. The property owners in the NTV Subdivision purchased
lots and built homes relying on the existence of covenants to control and regulate the entire NTV
Subdivision and maintain for all lot owners the primary attraction, the Lake. R72. 378-79; RE 35.
The lower court correctly noted that the Culley Defendants failed to assert their Lake rights until
22
approximately 2014. R72. 276; RE 2.011. Nonetheless, the lower court’s ultimate holding ignores
the Culley Defendants’ active and passive conduct and overlooks the standard of law from Mayor
of Clinton. For nearly 40 years, NTVPOA spent time and money regulating and maintaining the
Lake. Rather than acknowledging this fact, the Chancellor essentially deemed the Lake private and
subject to the whims of the Culley Defendants.
d. The Lower Court Misapplied PMZ Oil Co. v. Lucroy
The lower court manifestly erred in its application of PMZ Oil Co. v. Lucroy to the facts of
this case. In Lucroy, this Court held that restrictive covenants were binding on all the lots in a
subdivision when those covenants were made in the deeds, even though neither the plat nor the
covenants had been recorded over the property in question. Lucroy, 449 So. 2d 201 (Miss. 1984).
This Court stated specifically:
“The rationale of the rule is that a grantor, who induces purchasers, by use of a plat,
to believe that streets, squares, courts, parks, or other open areas shown on the plat
will be kept open for their use and benefit, and the purchasers have acted upon such
inducement, is required by common honesty to do that which he represented he
would do. It is the use made of the plat in inducing the purchasers, which gives rise
to the legally enforceable right in the individual purchasers, and such is not
dependent upon a dedication to public use, or upon the filing and recording of the
plat.”
Id. at 208 (quoting Ute Park Summer Homes Ass’n v. Maxwell Land Grant Co., 427 P.2d 249, 251
(N.M. 1967)).
This is precisely the situation this Court is faced with here. Like the homeowners in Lucroy,
NTVPOA, on behalf its lot owners, is simply attempting to enforce covenants that are already in
existence and attached to every lot owner’s deed. Id. The lower court’s opinion notes in Phase 1
and Phase 3 of the NTV Subdivision the covenants are attached to the individual warranty deeds,
23
“with the exception of a select few lots that were transferred from ‘Culley to Culley.’” R72. 269;
RE 2.004. The Lake was also transferred from “Culley to Culley.” R72. 269, 735; RE 2.004; RE
36.001. As with the Culley Developers’ parcels, there are no covenants attached to the deed that
includes the Lake. But the Lake front homeowners have lots that extend into the Lake. RE 26.
The character of the NTV Subdivision has always been a neighborhood governed by the
homeowners. Yet, due to the actions of the Culley Developers, who received monetary gain from
the sale of NTV Subdivision lots, the Culley Defendants are now attempting to materially benefit
(to the detriment of the individual homeowners and NTVPOA) from the nearly 40 years of
regulation and maintenance of what they are now trying to make their own private lake.
The developer purposefully left covenants out of other deeds in the subdivision in PMZ Oil
v. Lucroy. 449 So. 2d at 207-08. Here, Lewis L. Culley, III testified that covenants were
purposefully left off the Lake. R72. 738; RE 36.004. Further, the promotional materials (in plat
format) show the Lake as the preeminent feature of the NTV Subdivision and describe it in the
same breadth when discussing the development along with the covenants. R 71. 232-33; RE 8.001-
002. The decision of the lower court will allow the Culley Defendants to materially alter the use
and character of the Lake unilaterally, to the detriment of NTVPOA and its lot owners. See e.g.
72. 419 (Testimony from Lewis L. Culley, III – “When I am in the water, I will do as we please
on our land.”); RE 37; R71. 466-67 (Lewis L. Culley, III unilaterally deciding to lock common
access gate); RE 38.
The lower court’s statement that “the Culley family has never relinquished their rights of
ownership or regulation” is simply erroneous. R72. 272; RE 2.012. It is clear from the testimony
and record that the Culley Family did relinquish their rights of regulation, as evidenced by nearly
40 years of the NTVPOA controlling who can and cannot use the Lake (R71. 410; RE 39.001);
24
when the Lake can be fished in (R71. 413-14; RE 39.002-003); regulating all activity on the Lake
and regularly distributing said regulations. R72. 376, 386; RE 39.004-005 (Rules initially posted
on the dam); R71. 416-17; RE 39.006-007 (1996-97 Lake Rules); R71. 418-19; RE 39.008-009
(1998 Lake Rules); R71. 391-95; RE 39.010-014 (2002 Lake Rules); R71. 400; RE 39.015 (2009
Lake Rules); R71. 403-04, 435; RE 39.016-018 (2011 Lake Rules).
Lucroy also cited with favor cases from neighboring states whereby covenants were
enforced against individuals with actual knowledge of the ‘general plan or scheme of a subdivision,
noting “surely the original developer who created the general plan or scheme in the first place,
must be bound.” Lucroy, 449 So. 2d at 208 citing Jones v. Cook, 611 SW.2d 506 (Ark. 1981).
The Culley Defendants are the direct descendants of the Culley Developers. Their mother Bethany
Culley, the immediate predecessor owner of Culley Lake through which the Culley Defendants
obtained ownership through inheritance via her estate, took notice that the Lake Rules were in
place regulating the Lake. R72. 752-53; RE 24.001-002.
Since its inception, the NTVPOA has spent untold amounts of time and thousands of
dollars regulating activity on the Lake, time and effort that has gone unchallenged for decades. It
is the Culley Defendants who have changed their position with regard to the NTVPOA’s regulation
of the Lake that has damaged NTVPOA. NTVPOA and its property owners now find themselves
in the position of having subsidized a private lake in the center of the NTV Subdivision for the
sole benefit of the Culley Defendants. All lot owners in the NTV Subdivision are now subject to
the whim and caprice of individuals who, as the lower court’s ruling stands, do not have to abide
by any of the same rules and regulations as everyone else in the NTV Subdivision. The Culley
Defendants should be equitably estopped from now, some 40 years later, denying that the
25
covenants grant NTVPOA the right to regulate NTV Subdivision common areas, including the
Lake.
IV. The Court Should Adopt the Doctrine of Implied Reciprocal Negative Easements.
Assuming arguendo that the covenants do not expressly grant NTVPOA the right to
regulate NTV Subdivision common areas, including the Lake, and assuming that the Culley
Defendants are not equitably estopped as a matter of Mississippi law from challenging
NTVPOA’s authority to regulate the same, the Court should take this opportunity to adopt the
doctrine of Implied Reciprocal Negative Easements in this case as many neighboring states
have done, to “right” this inequitable “wrong.”
a. Legal Doctrine of Implied Reciprocal Negative Easements

The doctrine of Implied Reciprocal Negative Easements, adopted by numerous states,
mandates that a conveyance by a developer that imposes restrictions, like subdivision covenants,
on land that is included in a general plan or scheme (such as Natchez Trace Village), creates an
implied reciprocal restriction burdening the remaining lands owned by the developer that are also
included in the same general plan or scheme, if injustice can be avoided only by implying the
reciprocal restriction. See Restatement 3d. of Property: Servitudes, § 2.14; R72. 586-89; RE 23.
Specifically, the threshold analysis is as follows:
[R]estrictions may be enforced against land not expressly subject to them if the
party seeking that enforcement shows that (1) a common owner subdivided
property into a number of lots for sale, (2) the common owner had an intention to
create a general scheme of development for the property as a whole, in which the
use of the land was restricted, (3) the vast majority of subdivided lots contain
restrictive covenants that reflect the general scheme, (4) the property against which
application of an implied covenant is sought was intended to be part of the general
scheme of development, and (5) the purchaser of the lot in question had notice,
actual or constructive, of the condition.
26
Schovee v. Mikolasko, 737 A.2d 578, 583-84 (Md. Ct. 1999) (citing Turner v. Brocato, 111 A.2d
855, 862 (Md. 1955).
The Restatement of Servitudes notes that early on, developers of residential subdivisions
“often relied on land-use restrictions in the deeds to individual lots, rather than using a declaration
of restrictions applicable to the entire subdivision.” Restatement 3d. of Property: Servitudes, §
2.14. Treating the covenants as applying equitably to all lands developed according to the general
plan of the development, courts developed these implied servitude or reciprocal negative easement
doctrines “in order to provide protection for purchasers buying lots in what they reasonably
expected was a general development in which all of the lots would be equally burdened and
benefitted.” Roper v. Camuso, 829 A.2d 589, 602 (Md. 2003) (emphasis added). The key to the
doctrine is conveyances by a common developer which imposes similar restrictions which evince
a general plan. Forster v. Hall, 576 S.E.2d 746, 750 (Va. 2003).
Application of this doctrine prevents a developer from conveying lands he or she retained
within the development from being transferred free of the restrictions that burden all other lots in
the development. See Roper, 829 A.2d at 602 (Md. 2003); McKenrick v. Sav. Bank of Balt., 197
A. 580, 584-85 (Md. 1938); Restatement 3d. of Property: Servitudes, § 2.14. Courts in this state
have previously found restrictive covenants to apply to separate phases of a development if the
land was developed according to a common scheme and plan. See Lucroy, 449 So. 2d at 208,
White Cypress Lakes Dev. Corp. v. Hertz, 541 So. 2d 1031, 1034 (Miss. 1989).
States applying this doctrine look at language in individual deeds and covenants,
declarations, maps or plats, promotional materials used in marketing lots, and testimony to
27
determine whether the lands in question were intended to be part of the common development.
See Roper, 829 A.2d at 602; Schovee, 737 A.2d at 584.17
The Maryland Court of Appeals succinctly summarized the presumptions at play in
Schovee v. Mikolasko 737 A.2d 578 (Md. 1999), noting there is an interplay between the doctrine
and the instruments that create the uniform restrictions. Schovee, 272 A.2d at 588-89. The
interplay being the presumption that the developer only intended for the uniform restrictions to
apply to the land set out in the instrument versus an opposing implication – that there is “an implied
intent on the part of the grantor that all land included, or represented as being included, within a
general development be subjected to uniform restrictions established as part of that general
development . . . .” Id. This implied intent is exactly what the facts in this case demonstrate.
The lower court specifically found the following facts undisputed: (1) conveyances made
by the developer pursuant to a common scheme; and, (2) “the majority of the land in the
subdivision is subject to restrictive covenants.” R 72. 278; RE 2.013. As cited above, the evidence
was overwhelming with regard to these two issues – but the same mountain of evidence in the
record and presented at trial also provides both direct and indirect evidence that demonstrates the
covenants were intended to encumber all property in the NTV Subdivision, including the Lake.
The facts of this case provide the perfect opportunity for this Court to expressly recognize and
adopt this equitable doctrine.
17
In addition to the courts noted above, equitable servitude doctrines have been adopted/applied by many
our neighboring states and throughout the United States. See, e.g. Scheuer v. Britt, 118 So. 658 (Ala. 1928);
Warren v. Detlefson, 663 S.W.2d 710 (Ark. 1984); Skyline Woods Homeowners Ass'n v. Broekemeier, 758
N.W.2d 376 (Neb. 2008); La Fetra v. Beveridge, 199 A. 70 (N. J. 1938); Land Developers, Inc. v. Maxwell,
537 S.W.2d 904 (Tenn. 1976); Lehman v. Wallace, 510 S.W.2d 675 (Tex. Ct. App. 1974); Holloway Tr. v.
Outpost Estates Civic Club, Inc., 135 S.W.3d 751 (Tex. Ct. App. 2004).
28
b. The Elements of the Implied Reciprocal Negative Easements Doctrine are
Clearly Satisfied in this Action
The facts of this case stand on “all fours” with the doctrine of Implied Reciprocal Negative
Easements. The undisputed underlying facts satisfy every prong of the legal analysis like lock and
key. Equity dictates that restrictions, i.e. NTVPOA’s authority to regulate, should be imposed on
the Lake because it is included in the general scheme of NTV Subdivision and the Culley
Defendants were on notice of, and acquiesced to, NTVPOA’s authority to regulate.
First, there is no dispute that the Culley Developers subdivided the NTV Subdivision into
three phases and sold individual lots. The record is replete with NTV Subdivision maps and
promotional materials showing the individual lots within the community. R71. 228-232; RE 14;
RE 8.
Second, the Culley Developers clearly intended to develop the NTV Subdivision pursuant
to a general scheme in which land use was restricted. The Culley Developers marketed as a
with the Lake as the primary marketed amenity. R71. 232; RE 8. The promotional materials
provided to prospective lot purchasers in the 1960s noted the location of the Subdivision as being
on the west edge of the reservoir, approximately 300 acres and split into 230 sites. R71. 233; RE
8.002. A note at the bottom of the materials emphasizes “[a]s pointed out in our Protective
Covenants, Natchez Trace Village is a planned private community.” Id. The promotional
materials for the NTV Subdivision, identifying Lewis L. Culley, Jr. as the Developer, further
provided that: “Each lot purchaser is provided with a copy of the protective covenants to be filed
with his deed. The covenants have been designed to give all lot owners maximum protection
for their investment.” Id. (emphasis added).

29
Third, as lots were sold in the NTV Subdivision, covenants were attached to each
individual warranty deed in Phase 1 (including Lake front lots) and Phase 3 of the NTV
Subdivision and were recorded as a set and attached to the entire plat filed of record for Phase 2
of the NTV Subdivision. R72. 269; RE 2.004. The sole exception being the properties retained by
the Culley Developers i.e. “Culley to Culley” transferred property. Id.
Fourth, the Lake was emphasized in the promotional materials as the centerpiece of the
new NTV Subdivision.18 The lower court even referred to the Lake as “the subdivision’s primary
attraction.” R72. 267; RE 2.002. The Lake is expressly referenced in the covenants attached to
each lot deed and rights in the Lake are granted to each NTV Subdivision lot owner. See e.g., R71.
275-80; RE 40. The covenants are titled in large, capitalized bold font, “PROTECTIVE
COVENANTS AFFECTING NATCHEZ TRACE VILLAGE” indicating coverage of all lots and
common areas in the Subdivision. R71. 234; RE 12.004. The covenants themselves use the term
“said property”, “subject property” and the “lot conveyed herein” with no uniformity and in
various instances simply refer to general areas of the Subdivision. Id. The covenants touch and
concern the ability of property owners to erect structures on property that extends into the Lake
and give NTVPOA the authority to regulate said structures. Id. at Covenant 12(a).
Fifth, ownership of the Lake has been in the Culley Family since the NTV Subdivision was
marketed and developed decades ago.19 For nearly 40 years, NTVPOA has regulated the Lake.
RE 34; RE 39. The Culley Family through decades of active and passive conduct, has
18
The lower court found the same, noting the “subdivisions primary attraction has been a thirty-acre lake .
. . .” R71. 267; RE 2.002; See also RE 8; RE 14.001.
19
In La Fetra v. Beveridge, 199 A. 70 (N. J. 1938) the heirs of the original developer, who inherited unsold
lots in a subdivision, were enjoined from violating a restriction prohibiting business use included in deeds
to the 160 lots previously conveyed.
30
acknowledged and acquiesced to NTVPOA’s right to regulate the Lake. R72. 389, 98-99; RE 41;
RE 42; R71. 441; RE 31; RE 39; RE 21; RE 17. Indeed, Lewis L. Culley, III testified that the
Culley Defendants knew NTVPOA had regulated the Lake for decades. R72. 752-53; RE 24.001-
002.
The facts of this case satisfy every element of the doctrine of Implied Reciprocal Negative
Easement. Moreover, it is this precise scenario, and the potential inequitable quandary created in
its absence, for which this legal doctrine has been adopted by numerous jurisdictions.
The lower court’s ruling has additional drastic ramifications. Lots 122 and 123 were
acquired by the Culley Defendants from the Culley Developers in the same way as the Lake and
the dam that created the Lake. R72. 735; RE 36.001. These lots and strips of land (and possibly
others within the NTV Subdivision) are likewise unburdened directly by the covenants that affect
every other portion of the NTV Subdivision. The Culley Defendants’ expert testified that, like the
Lake, Lots 122 and Lot 123 “of Natchez Trace Village”20 are not part of the NTV Subdivision.
R72. 689-690; RE 28.003-004.
Notwithstanding, Lewis L. Culley, III testified generally that on the residential lots, the
covenants do apply. R72. 410; RE 43. In fact, the Culley Defendants’ expert agreed that an
implied reciprocal negative easement would apply to these lots. R72. 683-84; RE 46. Despite
all this information, the lower court reached a different conclusion. Under the lower court’s
holding, so long as they comply with the zoning ordinances of the City of Madison, the Culley
Defendants are free to subdivide these lots, erect structures, mobile or stationary, without the
20
R71. 268-71; RE 44 (Lot 123); R71. 255-60; RE 45. (Lot 122)
31
approval of NTVPOA, and generally contravene the character of the development after almost 40
years of regulation. The same can be said for the Lake.
It is for this very situation and the fundamental and urgent issue of broad public importance
created by the lower court’s ruling, that the Doctrine of Implied Reciprocal Negative Easements
should be applied to the specific and unique facts and circumstances in this case. In light of the
court’s numerous factual findings, and the regulation and maintenance of the Lake by the
NTVPOA for nearly 40 years with the Culley Defendants’ knowledge and affirmation, the lower
court erred in failing and refusing to find that an Implied Reciprocal Negative Easement existed in
favor of the NTVPOA and this Court should reverse and render the same.
CONCLUSION
Given the lower court’s ruling, NTVPOA and its lot owners are left to ponder what exactly
is the NTV Subdivision? Who will now bear the cost and expense of maintaining this private Lake
and its dam? As the chancellor’s opinion stands, the NTV Subdivision is simply the lots in a
general area that happen have similar covenants attached to their vesting deeds. Put another way,
the NTV Subdivision is simply the lots between the two entrances that happen to have covenants
attached to their vesting deeds. Certain lots and common areas which make up areas long subject
to NTVPOA regulations are simply unrestricted islands within the defined NTV Subdivision.
The lower court correctly noted in its opinion that the main issue in this case is whether
NTVPOA has either an express or implied right to regulate the Lake. However, the lower court
misapplied the appropriate legal standards when it answers this question. Its conclusion should be
reversed.
32
NTVPOA’s position is simple, as the governing body of the NTV Subdivision, it has the
right to regulate the usage of NTV Subdivision common areas, including the Lake, as evinced by
the language of the covenants themselves and the nearly 40 years of regulation by NTVPOA, all
with the undeniable knowledge, agreement, assistance and acquiescence of the Culley Family. For
the foregoing reasons, and to avoid injustice, this Court should reverse and render the lower court’s
ruling and find that NTVPOA, either expressly or impliedly, has the authority to regulate NTV
Subdivision common areas, including the Lake.
THIS the 25th day of October, 2018.

OWNER’S ASSOCIATION
By: ______________
ALEXANDER BONDURANT (MSB #104553)
OF COUNSEL:
Telephone: (601) 856-7200
Facsimile: (601) 353-6235

Telephone: (601) 987-4800
Facsimile: (601) 987-6600
ATTORNEYS FOR APPELLANT
33
I, Barry D. Hassell, hereby certify pursuant to M.R.A.P 25(d) that on this day I
electronically filed the foregoing Brief of Appellant with the Clerk of the Court using the MEC
system, which sent electronic notification of such filing to the following:

P.O. Box 1631

Butler Snow LLP
P.O. Box 6010

Post Office Box 404
THIS the 25th day of October, 2018.
Barry Hassell

NTV MSSC File

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Electronic Document May-16-2019 13:29:13.

Supreme Court of Mississippi

D. Jeremy Whitmire (Street Address)

May 16, 2019

Supreme Court Case # 2018-CA-00425-SCT

Per Curiam Affirmance. Appellant taxed with costs of appeal.

* NOTICE TO CHANCERY/CIRCUIT/COUNTY COURT CLERKS *

MICHAEL K. RANDOLPH JOSIAH D. COLEMAN

Barry Douglas Hassell, Esq. Steven H. Smith, Esq.

cc: Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NATCHEZ TRACE VILLAGE PROPERTY OWNER’S

LEWIS L. CULLEY, III, NANCY CULLEY,

APPELLANT’S RESPONSE TO MOTION BY APPELLEES TO STRIKE

Rules of Evidence 201.

the Google map images of geography. 2

to Strike Portions of NTVPOA Reply Brief should be denied.

NATCHEZ TRACE VILLAGE PROPERTY

By: /s/ Barry D. Hassell

STEVEN H. SMITH, PLLC

ATTORNEYS FOR APPELLANT

system, which sent electronic notification of such filing to the following:

Gene D. Berry, Esquire ( geneberry@berryfirm.net )

Will Thomas, Esquire ( will.thomas@butlersnow.com )

Honorable James C. Walker (via MEC)

THIS the 18th day of February, 2019.

/s/ Barry D. Hassell

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NATCHEZ TRACE VILLAGE PROPERTY APPELLANT

V. CIVIL ACTION NO. 2018-CA-00425

LEWIS CULLEY, III, NANCY CULLEY

MOTION BY APPELLEES TO STRIKE PORTIONS OF NTVPOA REPLY BRIEF

information that are not in the record on appeal, as follows:

1). Google Earth photograph purporting to be Lake Caroline. (Page 2 of Reply);

3 of Reply Brief) and

record made in the trial court.”).

done.” Wortham, 219 So. 2d at 927.

WHEREFORE PREMISES CONSIDERED, Appellees respectfully request that an order

be entered striking the above-referenced portions of the Reply Brief.

This the 13th day of February, 2019.

Barry D. Hassell, Esq.

Steven H. Smith, Esq.

William P. Thomas, Esq.

Honorable James C. Walker

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NATCHEZ TRACE VILLAGE PROPERTY OWNER’S

LEWIS L. CULLEY, III, NANCY CULLEY,

Appeal from the Chancery Court of Madison County, Mississippi

REPLY BRIEF OF APPELLANT

Oral Argument Requested

Barry Hassell (MSB # 101149)

Steven H. Smith (MSB# 7610)

STATEMENT REGARDING ORAL ARGUMENT

will aid the Court in its decision-making process.

TABLE OF CONTENTS Page(s)

STATEMENT REGARDING ORAL ARGUMENT…………………………………………….ii

a. A common owner subdivided property into a number of lots for sale……....15

b. The common owner had an intention to create a general scheme of

d. The property against which application of an implied covenant is sought was

Anderson v New Prop. Owners’ Ass’n of Newport, Inc.,

H. H. Holloway Trust v. Outpost Estates Civic Club, Inc.,

Land Developers, Inc. v. Maxwell,