Opinion
No. 37898.
April 23, 1951.
1. Easements — continuous and open use under claim of right for ten years.
A continuous easement is an interest in land and does not pass by oral grant, but ripens into what is equivalent to a conveyance when claimed as a right and under such claim is openly and continuously used for a period of ten years or more; and such a use for such a length of time raises a legal presumption that the right was properly acquired.
2. Easements — alley between adjoining lands.
Where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land to that purpose and the way or alley is used for the prescriptive period by the respective owners or their successors in title, the mutual use of the whole way or alley will be considered adverse to a separate or exclusive use by either party, and neither can close or obstruct the part which is on his own land.
3. Easements — driveway used in common by adjoining landowners for more than ten years.
Where adjoining landowners had established a common driveway ten feet wide by devoting thereto five feet of the land of each along the dividing line of the properties and this driveway had been continuously and mutually used as a matter of right by the owners and their successors in title for forty years or more, a fence may not be constructed within the driveway by one of the owners and if so done, he may be enjoined by the other.
4. Costs — easements — injunctions.
Where the driveway between adjoining properties was one in which each of the adjoining owners had an easement by prescription for their mutual or common use, it was error to assess any of the costs against the successful complainant in a suit to enjoin the obstruction of the driveway by the adjoining property owner.
Headnotes as approved by Arrington, C.
APPEAL from the chancery court of Washington County; FRANK E. EVERETT, Chancellor.
E.B. Taylor and Chas. W. Wade, for appellant.
I. From the evidence offered and introduced by the complainant it is conclusively shown that the driveway and passageway involved in this case has been in actual adverse use uninterruptedly and continuously for a period of more than 43 years immediately preceding the filing of this suit and in support of the right of the appellant to an easement in and upon such driveway and passageway we submit the following authorities: Sec. 711 Code 1942; Alcorn v. Sadler, 71 Miss. 634; Lanier v. Booth, 50 Miss. 410; University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 322; Jenkins v. McQuaid, 153 Miss. 185; McIntyre v. Harvey, 158 Miss. 16; 19 C.J. 902; Barnes v. Haynes, 13 Gray (Mass.) 188, 74 Am. Dec. 620; Johnson v. Whalen, 171 Okla. 243, 42 P.2d 882, 98 A.L.R. 1096.
II. It would naturally follow that if the complainant is entitled to the right of easement as set out in her bill of complaint, she would be entitled to an injunction for the enforcement and protection of her rights.
III. We simply have to say that if there is no evidence to contradict the evidence for the complainant, and the decree is adverse to the complainant, then the decree of the court is manifestly wrong and against the overwhelming weight of the evidence.
IV. The appellant offered in evidence a letter she had received from the law firm of Farish, Keady and Branton, written by Mr. W.C. Keady, then attorney for defendant, in which the said attorney said that defendant admitted that the driveway between the houses was partly on her property and partly on complainant's property and admitted that it had been in common use for many years. 5 Am. Jur. 316, Par. 93, Attorneys at Law: "A statement made by an attorney in a letter written within the scope of his employment is admissible in evidence against his client on trial of the case."
Jos. E. Wroten, for appellee.
I. A complainant claiming an easement by prescription cannot rely upon use of driveway by predecessors in title where proof does not show such use to have been adverse. Lanier v. Booth, et al., 50 Miss. 410; Jesse French Piano Organ Co. v. Forbes, et al., 129 Ala. 471, 29 So. 683, 87 Ann.St.Rep. 71; Sec. 67, Easements, 17 Am.Jur.
II. A complainant cannot tack his use to that of his predecessors where neither possession is sufficient to acquire by prescription and user the right to the driveway. McIntyre, et al. v. Harvey, et al., 158 Miss. 16, 128 So. 572.
III. The intentional blocking of a driveway during the prescriptive period by parking automobiles thereon is such a physical act as will interrupt the adverse use of the driveway. McIntyre, et al. v. Harvey, et al., supra; Cohn v. Smith, et al., 94 Miss. 517, 49 So. 611.
IV. A way of necessity over an adjoining lot cannot be established by a complainant whose lot fronts on a public street. 17 Am.Jur., Easements, Secs. 50, 70; Burling v. Leiter, 272 Mich. 448, 262 N.W. 388, 100 A.L.R. 1312.
V. A letter from a former attorney of a defendant containing statements of hearsay and opinion, and referring to a conversation between defendant and said attorney, addressed to complainant, is not admissible in evidence at a hearing involving a controversy based on the subject matter of the letter. M. C. Parkhurst v. Henry S. McGraw, 24 Miss. 134.
VI. Where complainant was denied an easement by prescription in the chancery court, the court properly ordered complainant to bear an equitable share of the court costs. It was within the sound discretion of the court as to what portion of the costs complainant should bear.
The appellant, Ada Gilkey Gano, filed bill of complaint in the Chancery Court of Washington County, praying for the establishment of the boundary lines of her lot, establishment of an easement by prescription and for injunctive relief. From final decree establishing the boundary lines and denying her the right of an easement and injunctive relief, she appeals.
The evidence shows without dispute that the appellant and the appellee own adjoining property on Poplar Street in the city of Greenville, Mississippi, that each lot has a frontage of forty feet and a depth of one hundred fifty four feet; that in the year 1903 a home was built upon the appellee's lot; that in 1906 a home was built on the appellant's lot, and at this time a common driveway was established between the two homes, being ten feet in width, five feet off the South end of the appellee's property and five feet off the North end of appellant's property. The distance between the two houses is fifteen feet three inches. This driveway was used by the parties living in the respective homes until June 3, 1948, when the appellee built a fence down the driveway, which fence prevented the appellant from having access to the driveway because there was insufficient room between the fence and her home. The evidence shows that the appellant acquired her home by will in 1936 and that the appellee purchased her home in 1945, although she had lived there since 1935. The appellee admitted that the driveway was there and had been used by the occupants of both houses, but contended that its use was permissive only. She also contended that appellant's use of the driveway had been interrupted by parking cars in same. The evidence on the part of the appellant was abundant that there had been free and continued common use of the driveway since 1906, a period of more than forty years. Both parties kept the driveway up, the appellant having repaired same in 1946, and all persons having any business at either of the homes used the driveway; that this was the only way that ingress and egress could be had to the back of the premises from the street. The evidence further shows that there were garages on the respective premises in the rear and that the only way to get to these garages was to use the driveway in question. The evidence in this case was overwhelming that an easement by prescription had been established long before the present owners acquired their property. In Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 445, the Court held: "Ten years is the time in this state by which to acquire an easement in land. It would be irrational to hold that an easement may not be acquired by the lapse of time to confer title to the land by adverse possession. The period for acquiring an easement in land corresponds to the local statute of limitations as to land. God. Easem. p. 133; Washb. Easem. p. 84 et seq.; Horner v. Stillwell, 35 N.J.L. 307, and cases cited; Bonelli [Bros.] v. Blakemore, 66 Miss. 136, 5 So. 228; Ryan v. [Mississippi Val. I] Railway Co., 62 Miss. 162; Lanier v. Booth, 50 Miss. 410, distinctly recognizes this rule. It does not decide that 20 years is the period for acquiring an easement by user, and would be clearly wrong if it did."
In Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814, 816, the Court said: "The chancellor held that the use made by Jenkins of the alley `was not sufficient notice to complainant of the defendant's hostile claim, if any, to said land, and that said use has therefore continued as permissive and has not ripened title in this defendant.' (Hn 1) A continuous easement is an interest in land, and a parol grant is insufficient to pass the title under the Statute of Frauds (Hemingway's Code 1927, Sec. 3325), but it is sufficient when claimed as a right and used continuously, openly, and for a period of 10 years or more, and is sufficient to ripen into a right by prescription equivalent to a deed conveying such right. Adverse and continuous enjoyment of a right of way for a term of years equal to the statute of limitation raises a legal presumption that the right was properly acquired. Lanier v. Booth, 50 Miss. 410; Briel v. [City of] Natchez, 48 Miss. 423; Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 42 Am.St.Rep. 484; Board of Trustees of University of Mississippi v. Gotten, 119 Miss. 246, 80. So. 522. . . . If Jenkins, under a claim of right, used the alley constantly for the statutory period, improving and keeping it in condition for his use, as testified by him (which testimony is not disputed), then his right thereto became perfect and irrevocable after such statutory period of time, and is as efficacious in vesting in him the enjoyment of such right as though it had been formally conveyed in writing." See also Browder v. Graham, 204 Miss. 773, 38 So.2d 188, and Lindsey v. Shaw, Miss., 49 So.2d 580.
In 28 C.J.S., Easements, Sec. 18(j), page 673, it is stated: "As stated in Corpus Juris, which has been cited and quoted with approval, while there are some decisions to the contrary, the weight of authority is to the effect that, (Hn 2) where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land to that purpose, and the way or alley is used for the prescriptive period by the respective owners or their successors in title, neither can obstruct or close the part which is on his own land; and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to a separate and exclusive use by either party. However, where the owners of land used an alleyway for their mutual convenience, the user being occasional, permissive, and for broken periods of time, no right of way in the alley was established by prescription."
The above rule is applicable to the facts in the instant case and is fully supported by our decisions.
(Hn 3) We are of the opinion that the learned chancellor erred in not granting the injunctive relief prayed for. Accordingly, the decree will be reversed and a decree entered here adjudging the right in appellant to the common use of the driveway, and mandatorily enjoining appellee to remove the fence in the driveway within ten days from the date final judgment is entered in the cause in this Court, and permanently enjoining appellee from obstructing or interfering with appellant's use of said driveway. (Hn 4) We are also of the opinion that the lower court erred in assessing appellant with one-half of the court costs. The decree is also reversed to the extent that all costs in the lower court and on appeal are assessed against appellee. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442; Lindsey v. Shaw, supra.
Reversed and decree here for appellant.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated, the case is reversed and decree here for appellant.