Opinion
No. 33180.
October 17, 1938.
1. EASEMENTS.
Where an owner of lands abutting on a public highway conveys portion of lands abutting and retains the interior portion, from which he would have no way to reach highway except permissively over strangers' lands, the law reserves to owner, as an appurtenance to reserved lands, easement of a right of way over lands conveyed, and that easement continues so long as the necessity therefor continues.
2. EASEMENTS.
Where there exists, at time of conveyance of exterior lands abutting on a public highway, a roadway over exterior lands, leading to highway from interior lands reserved to grantor, the presumption is that parties contemplated the continued use of that roadway and that it would remain open so long as the necessity therefor continued.
3. EASEMENTS.
Where the grantee of exterior lands abutting on a public highway changes a previously existing roadway leading to highway from interior lands reserved to grantor and provides another, and grantor accepts change without objection and proceeds to use roadway in its new location and continues to use it for such a length of time as will definitely evidence unreserved acquiescence in change, location so accepted may not thereafter be substantially changed without grantor's consent.
4. EASEMENTS.
The owner of an easement in land for a roadway only may work roadway to keep it reasonably usable as a private way, but he cannot lawfully take dominant possession and deal with it as if he were the owner of the land.
APPEAL from the chancery court of Pike county; HON. R.W. CUTRER, Chancellor.
Luther W. Felder, of McComb, for appellant.
When J.W.M. Quin conveyed to appellee the lands in Section 20 and retained those in Sections 18 and 19 in 1905 no public road touched the lands retained and to this day there is no public road which touches the land retained, but the record shows that there was a road leaving the highway near the residence of appellee and going in a northwesterly direction into the lands retained, and appellee testifies that he straightened this road and in this he is corroborated by many witnesses, it is, to all intents and purposes, the same road, entering into the lands of appellant, and appellant and his grantor, J.W.M. Quin, have used this road since the lands in Section 20 were conveyed to appellee, and we contend that appellant has acquired an easement to travel this road by implication, or that he has an easement by reservation which passed to him by conveyance to him from J.W.M. Quin.
Lanier v. Booth, 50 Miss. 410; Bonnelli v. Blakemore, 66 Miss. 136, 5 So. 228; Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Wills v. Reid, 86 Miss. 452, 38 So. 793; Board of Supervisors of Lamar County v. Elliott, 107 Miss. 841, 66 So. 203; Davis v. Fortinberry, 114 Miss. 294, 75 So. 119; Thornton v. McCleary, 161 Miss. 697, 137 So. 785; Board of Trustees University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522.
The court erred in not holding that appellant had acquired an easement in the road in controversy by his continuous, open, notorious, and adverse use thereof, under claim of right for more than ten years, during which time he worked and repaired it with expensive materials and labor. The undisputed record is that appellant put in expensive culverts in this road in 1922, that he has graveled it and repaired it and used it, under claim of right, since he moved upon the premises retained by his grantor in 1918. It is not disputed that he has done so, nor is it disputed that he has claimed a right to use it.
The testimony of appellant, and by the witnesses in his behalf, concerning his repair, use, and claim of this road for the past twenty years, is undisputed by appellee or any witness in his behalf, it being undisputed that his use and repair of said road was open, notorious, continuous, and undoubtedly adverse to any right of appellee and under the authorities of this state we contend that even if he had not acquired a right or easement in this road by implication of law, and as hereinbefore set forth, he has acquired that right in the road in controversy, and as it now stands, by his adverse claim and use of the same since 1918.
Ryan v. Miss. Valley Ship Island R.R. Co., 62 Miss. 161 ; Cummins v. Duman, 147 Miss. 215, 113 So. 322; Dear River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Board of Trustees of Univ. of Miss. v Gotten, 119 Miss. 246, 80 So. 522; Jenkins v. McQuid, 153 Miss. 185, 120 So. 814; McIntyre v. Harvey, 158 Miss. 16, 128 So. 572.
Hundreds of decisions from this state might be quoted holding favorably to appellant, that in his use and authority over the roadway in controversy adversely and notoriously for the past twenty years, he has acquired an easement in and to the roadway in controversy. While appellee testified that he did not know of the claim being made by appellant to the roadway in controversy he cannot get away from the fact that the open and notorious acts of appellant in exercising authority over this roadway in sight of his residence gave him notice of such claim. We contend that, under the decisions of this court above given, and other decisions which might be given, the use of appellant and other acts of ownership exercised in regard thereto, have ripened into an easement over the roadway in controversy, even if it should be held that he did not acquire such right by conveyance from his grantor, J.W.M. Quin, to whom such rights had accrued by reservation of an easement by implication.
Junior O'Mara, of McComb, and Price, Price Phillips, of Magnolia, for appellee.
At the time appellee purchased property from J.W.M. Quin, the record shows the lane involved in this controversy was not in existence. All the land at or near where this lane is located was in cultivation and appellee planted and grew crops thereon. That appellee, himself, opened and built the present lane or roadway across and over his property; that theretofore all the land at or near the lane was fenced in and thereby enclosed.
We respectfully submit that the question of the convenience to appellant in using this roadway involved in this cause is immaterial and has no weight or effect.
Wills v. Reed, 86 Miss. 446, 38 So. 793.
One who claims a way of necessity has the burden of showing that it is necessary, and that other ways leading to his property are not public highways.
19 C.J. 960, par. 182.
Appellee also takes the position that a way of necessity by implication or operation of law is not a fixed and permanent right belonging to the property but ceases when the necessity therefor ceased.
Thornton v. McLeary, 161 Miss. 697, 137 So. 785.
We construe the briefs of counsel to submit for decision the contention that a way of necessity, one established in favor of the owner of a dominant estate over the lands of a servient estate, runs with the land, and is never extinguished. In this case, the way arises through grant by implication, there being no claim of express grant.
In the case of Bonnelli v. Blakemore, 66 Miss. 136, 5 So. 228, 14 Am. St. Rep. 550, this court held that, if there was any easement at all, it was one of implied grant; and, being one of implied grant, cannot be established except by showing of strict necessity.
Of course, it is well settled in this jurisdiction that on the sale of a tract of land surrounded in part by the lands of the vendor, and the rest by the lands of a stranger, the purchaser of the interior lands has an implied grant of a way of necessity over and across the lands of his vendor.
Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Davis v. Fortenberry, 114 Miss. 294, 75 So. 119; Bonnelli v. Blakemore, 66 Miss. 136.
This court has never held, however, that this right of way of necessity, arising by implied grant, vested title in fee to the lands, but only a right appurtenant to the dominant estate.
Pierce v. Selleck, 18 Conn. 321.
We take the position that neither appellant nor his grantor ever had a way of necessity over and across the land of appellee including this roadway for the reason that appellant and his grantor had other ways out from appellant's premises to the outside world and it was not necessary for appellant or his grantor to use or travel over any land belonging to appellee in order to reach the outside world.
Wills v. Reed, 86 Miss. 452, 38 So. 793; Trump v. McDonnell, 120 Ala. 200, 24 So. 353; Walker v. Clifford, 128 Ala. 67, 29 So. 588; Hill v. Wing, 193 Ala. 312, 69 So. 445; Hamby v. Stepleton, 221 Ala. 536, 130 So. 76; Dabney v. Child, 95 Miss. 585, 48 So. 897.
We also call the court's attention to the fact that the appellant, Samuel L. Quin, by his actions in attempting to have this little roadway in controversy made a public road and the statement that he had money to pay for a right of way across this roadway over appellee's property "speaks for itself" in that appellant realized he had no claim over this roadway either as a way of necessity or by adverse use and possession.
Certainly the Chancellor's finding of fact that there was no such adverse user as to establish such an easement is amply sustained by the evidence.
The most that can be said in favor of appellant on the question of adverse user is that it was simply a common or scrambled user in subordination to the fee simple title of appellee thereto which is insufficient to support appellant's contention.
Cohn v. Smith, 94 Miss. 517, 49 So. 611; Lumber Co. v. Hughes, 38 So. 769; Dedeaux v. Lbr. Co., 112 Miss. 325, 73 So. 53.
This court has constantly held through a long line of cases that adverse possession means the actual, hostile, and exclusive possession of an adverse claimant over the period of years prescribed by statute.
Alexander v. Polk, 39 Miss. 737; A. V. Ry. v. Joseph, 125 Miss. 454, 87 So. 421.
The whole idea of permissive, common, or subordinated user must be absent in order for adverse use to reap any rights whatever.
Barron v. Federal Land Bank, 180 So. 74; Magee v. Magee, 37 Miss. 138; Dixon v. Cook, 47 Miss. 220; Davis v. Bowmar, 55 Miss. 671; McCoughn v. Young, 85 Miss. 277, 37 So. 839; Fishing, etc., Club v. Stovall, 147 Miss. 385, 113 So. 336; Alexander v. Polk, 39 Miss. 737.
This possession must in all cases be hostile to the owner of the title.
Wilmot v. R.R. Co., 76 Miss. 374, 24 So. 701; Morgan v. Collins School House, 160 Miss. 321, 133 So. 675.
And, such possession must be exclusive of the owner of the title to the land or way in question, particularly, in such cases as that at bar where there is common user with the title owner.
Louisville Nashville R.R. Co. v. Gulf of Mexico Land Improvement Co., 82 Miss. 180, 33 So. 845; Smith v. Stanley, 159 Miss. 720, 132 So. 452; A. V. Ry. v. Joseph, 125 Miss. 454, 87 So. 421; Staton v. Henry, 130 Miss. 372, 94 So. 237; Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 702; Gordon v. Sizer, 39 Miss. 805; McMahon v. Yazoo Delta Lbr. Co., 92 Miss. 459, 43 So. 957.
The evidence conclusively shows that if there has ever been any adverse act by the appellant it was in 1931, less than ten years prior to the filing of this suit; that even since that time appellant has obeyed the requests of appellee in particular regard to the use and repair of the lane. The statute of limitation as to adverse possession does not begin to run until its hostile, adverse and exclusive character is brought home to the owner of the legal title, or if such acts have been committed in regard to the property in question, that the owner of the legal title should have known the intention of the adverse claimant.
Tush-Ho-Yo-Tubby v. Barr. 41 Miss. 52; Cook v. Mason, 160 Miss. 811, 134 So. 139; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Fairley v. Howell, 159 Miss. 668, 131 So. 109; Golf v. Cole, 71 Miss. 46, 13 So. 870.
Certainly there is a very strong presumption of law that the possession or use of property by one who is not the holder of any sort of color of title is rightful, permissive, and in subordination to the owner of the legal title.
Magee v. Magee, 37 Miss. 138; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Bullock v. Greer, 179 So. 264.
In the case at bar, undoubtedly, all will agree that there was no more than common user. This fact alone defeats appellant's contention because as was said in the case of Pirman v. Confer, (N.Y.) 7 N.E.2d 262: "Common user negatives the idea of a presumption in favor of an individual."
Argued orally by Luther W. Felder, for appellant, and by Junior O'Mara and O.W. Phillips, for appellee.
When the owner of lands, abutting upon a public highway, conveys to another all that portion of said lands which so abut, and retains the interior portion, from which interior lands he would have no way to reach a public highway except permissively over the lands of strangers, the law reserves to the grantor, as an appurtenance to the reserved lands, the easement of a right of way over the exterior lands thus conveyed, and from the interior lands to the public highway first aforesaid; and this right of easement continues so long as the necessity therefor continues, which is to say, so long as the owner or owners of the interior lands to reach a public highway, would have to resort to the permissive use of a roadway other than the reserved easement. There are many cases to this effect, but the rule is sufficiently disclosed in Pleas v. Thomas, 75 Miss. 495, 22 So. 820.
Under this rule and the facts of this case, when Quin conveyed the exterior lands to appellee in 1905, he reserved the easement of a roadway over the conveyed lands to reach the public highway now known as Highway No. 24, there being then and now no public road which touches the reserved or interior lands — wherefore the said reservation is still in full force.
When under such a reservation, implied in law, there exists, at the time of the conveyance, a roadway over the exterior lands, leading from the interior lands to the public highway, the presumption is that the parties had in contemplation the continued use of said existent roadway over the exterior lands, and that it would remain open to the use of the interior lands, so long as the necessity therefor continued — the meaning of necessity being as we have heretofore set out. Washburn on Easements, (4 Ed.), p. 262. But when the owner of the exterior lands changes the previously existing roadway and provides another in the place thereof, and the owner of the interior land accepts the change without objection and thereupon proceeds to use the roadway in its new location and so continues for such a length of time as will definitely and indisputably evidence unreserved acquiescence in the change — and certainly so if said continued use has been without interruption for the ten-year period analogous to the adverse possession statute — the location so accepted may not thereafter be substantially changed without consent both of the owner of the land and the owner of the easement. See, as sufficient on this point, 9 R.C.L. pp. 791, 792; 19 C.J. p. 953. Also Glover v. Falls, 120 Miss. 201, 82 So. 4; Board of Sup'rs of Lamar County v. Elliott, 107 Miss. 841, 66 So. 203. Exclusive use by the owner of the interior lands is not necessary to the application of the stated rule. Compare University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522.
When, therefore, appellee made the change in the old roadway and established the present roadway, which, according to this record, was not later than 1920, and appellant accepted said changed location, and thereupon from 1920 down to the date of filing of this bill in 1937 continued to use said roadway in virtue of his easement therein, as aforementioned, his right in the location of said present roadway has now become fixed and it cannot be substantially changed without appellant's consent. It follows that the court was in error in ordering the said roadway to be closed to appellant and in remitting appellant to another tendered or proposed roadway in a substantially different location.
But even so, appellant has not become the owner of the land upon which the roadway is located. He owns an easement therein for a roadway only. He may work the road so as to keep it reasonably usable as a private way, but he cannot lawfully take dominant possession and deal with it as if he were the owner of the land. The record contains much to confirm the impression that this was the attitude taken by appellant in later years. In order that the trial court may consider a proper decree to protect the rights of appellee against said apparent attitude of appellant, and that, if further orders be properly prayed under suitable amendments to the pleadings, the court may provide reasonable means of restricting the use of said roadway to the owner or owners of said reserved interior lands, their tenants and servants, we remand the cause instead of attempting any final decree here.
Reversed and remanded.