Opinion
No. 42122.
February 5, 1962.
1. Highways — easements — county acquired right for public use of roadway by prescription.
In suit by complainant for an injunction restraining defendants from using roadway over and across complainant's land, Supreme Court held that county, which held title to road under parol gift of land, and which worked it for over 20 years, acquired a right for public use of such land by prescription although it was built for convenience of one man and his family, and that defendants were entitled to the use of the roadway.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Jones County; ROY P. NOBLE, Chancellor.
Cecil G. Johnson, Ellisville, for appellant.
I. An easement cannot exist so long as there is a unity of ownership of the properties involved. Bonelli Bros. v. Blakemore, 66 Miss. 136, 5 So. 228.
II. To acquire an easement by prescription there must be a use thereof for a period of ten years. Alcorn v. Sadler, 71 Miss. 634, 14 So. 444; Gano v. Strickland, 211 Miss. 511, 52 So.2d 580.
III. A way of necessity ceases to exist when the necessity therefor ceases to exist. Thornton v. McLeary, 161 Miss. 697, 137 So. 785.
IV. A way of necessity cannot be claimed over the land of a third person. Bonelli Bros. v. Blakemore, supra; Hunter v. Lake Mor-hi-Lo, Inc., 224 Miss. 220, 79 So.2d 836; Wills v. Reid, 86 Miss. 446, 38 So. 793.
V. A bona fide purchaser of land without knowledge or actual or constructive note of the existence of an easement in such land takes free from the burden of the easement. Wills v. Reid, supra.
VI. The fact that a road is worked by county officials is insufficient to establish a road by public prescription. Board of Suprs. Warren County v. Mastronardi, 76 Miss. 441, 38 So. 635; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Gulf S.I.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; Hunter v. Lake Mor-Ri-Lo, Inc., supra; Wills v. Reid, supra.
VII. Where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right. Alexander v. Polk, 39 Miss. 737; Board of Suprs. Warren County v. Mastronardi, supra; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Lanier v. Booth, 50 Miss. 410; Patterson v. Harris, 239 Miss. 774, 125 So.2d 545; Wills v. Reid, supra.
VIII. For a road to be designated as a public road by the Board of Supervisors, this designation must appear from an order on the minutes of the Board. Board of Suprs. Warren County v. Mastronardi, supra; Coleman v. Shipp, 223 Miss. 516, 78 So.2d 778; Tegarden v. McBean and Kibbee, 33 Miss. 283. Melvin, Melvin Melvin, Laurel, for appellees.
I. Cited and discussed the following authorities: Alcorn v. Sadler, 71 Miss. 634, 14 So. 444; Board of Suprs. Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Bonelli Bros. v. Blakemore, 66 Miss. 136, 5 So. 228; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Gano v. Strickland, 211 Miss. 511, 52 So. 11; Gulf S.I.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; Hunter v. Lake Mor-Ri-Lo, Inc., 224 Miss. 220, 79 So.2d 836; Kinnare v. Gregory, 55 Miss. 612; Lindsey v. Shaw, 210 Miss. 333, 49 So.2d 580; Patterson v. Harris, 239 Miss. 774, 125 So.2d 545; Rylee v. State, 106 Miss. 123, 63 So. 342; Thornton v. McLeary, 161 Miss. 697, 137 So. 785; Wills v. Reid, 86 Miss. 466, 38 So. 793.
The appellant, complainant below, filed bill of complaint in the Chancery Court of the First Judicial District of Jones County against Harold T. Johnson and Virginia L. Johnson, defendants and appellees here. The relief prayed for was that the appellees be enjoined and restrained from using a driveway over and across appellant's land. From an adverse decree the appellant appeals.
The record herein discloses that the appellees' land adjoins that of appellant on the east; that the only way they can have ingress and egress is along the north line of appellant's property. Mrs. Thelma C. Crumpton testified that she was familiar with the property where the Johnsons lived; that she and her husband bought it twenty-four years ago; that at that time there was a road there and used by "a right smart of public"; that she and her husband gave half of the right of way and her brother, "Doc" Bowman, gave the other half; that the county began working this road in 1940 and has countinued to work it for a period of twenty years; that it had been graded, a bridge repaired, and gravel hauled for maintenance.
The chancellor, in his opinion, held that "the acceptance of the Crumpton gift of whatever it was and the working of the road by the supervisors for 12 and 8 years respectively. . . . is sufficient for publicly acquired prescription." Again he said: "I do hold that this is a public road." While he could not dignify it by calling it a highway because it was built for the convenience of one man and his family, he said: "I think that Mr. Johnson is entitled to the use of the road by public prescription."
(Hn 1) The land for this road was a parol gift by Mr. and Mrs. Crumpton and "Doc" Bowman in 1939. The county began to work it in 1940, and has done so for twenty years. The county has therefore acquired a right for the public to the use of this land by prescription, because "A claim of title under a parol gift, accompanied by entry and adverse holding for ten years, ripens into a good title." Chatman v. Carter, 209 Miss., 16, 45 So.2d 841, and cases there cited.
In a case such as this the public acquires an easement. The chancellor dismissed the bill of complaint and the cross-bill with prejudice and held that the appellees were entitled to the use of the road. His decision is clearly correct. It follows that the decree of the court below is affirmed.
Affirmed.
Lee, P.J., and McElroy, Rodgers and Jones, JJ., concur.