Summary
In McIntyre v. Harvey, 1930, 158 Miss. 16, 128 So. 572, 573, 130 So. 5, an alley was used by property owners for many years.
Summary of this case from Lambert v. StateOpinion
No. 28587.
June 2, 1930.
1. EASEMENTS. Verbal remonstrances held insufficient to stop running of statute of limitations in favor of persons using passageway under claim of right; to stop running of statute in favor of one using passageway under claim of right there must be physical interruption, clear act of ownership, or filing of suit.
Where parties are using a passageway under claim of right, verbal remonstrances are not sufficient to stop the running of the statute of limitations; there must be a physical interruption or some unequivocable act of ownership, or a suit must be filed.
2. EASEMENTS. One may acquire private way by adverse user for statutory period where passageway is also used by other persons or general public.
A private way may be acquired by adverse user for the statutory period although other persons may also be using the passageway. Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814, cited.
3. EASEMENTS. Adverse user of passageway cannot be tacked to another's user to give prescriptive title; passageway acquired by adverse user will pass by grant or deed to abutting property to which it appertains.
A passageway to a lot by adverse user can only be acquired by the person using it, and not by tacking the user by one to that of another, but after it has been acquired in this manner it will pass by a grant or deed to the abutting property to which it appertains.
APPEAL from chancery court of Pike county. HON. R.W. CUTRER, Chancellor.
Price Price, of Magnolia, and Price, Price McLain, and Forrest B. Jackson, all of McComb, for appellant.
There are three ways by which an easement may be created: First, express grant, second, by implication, and third, by prescription. To establish an easement by prescription there must be, first, continued and uninterrupted use or enjoyment; second, identity of the thing enjoyed; third, a claim of right adverse to the owner of the soil known to and acquiesced in by him — it must be open, peaceable, continued and as of right, and it is sometimes decreed that it must also be exclusive.
9 R.C.L., page 771, sec. 32.
It is a well-settled rule that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription.
9 R.C.L., page 778, sec. 37.
A mere verbal protest is sufficient to stop the running of the prescriptive period.
Dartwell v. Bidwell, 115 Me. 227, 98 A. 743, 5 A.L.R. 1320.
A dedication of land to the public to be effectual must be accepted by acts of the local municipal authorities, or by implication from circumstances reference being had to the use to which the dedication is to be appropriated.
Briel v. City of Natchez, 48 Miss. 423.
A prescriptive easement does not run with the grant of land like adverse possession, but is an easement in gross, or a personal claim and is not annexed to the estate.
Lanier v. Booth, 50 Miss. 410; Bonelli v. Blakemore, 66 Miss. 136, 5 So. 228, 14 A.S.R. 550; Alcorn v. Sadler, 71 Miss. 634, 14 So. 444.
The chancellor, in his decree fixed the lines of each litigant's property from the evidence as a finding of fact and, after fixing the property lines, the chancellor further found as a fact that all of said property owners were entitled to a prescriptive easement in and to a certain strip which forms the alleyway and this court says in its opinion, that the chancellor was justified in this finding. A suggestion of error on a finding of fact will not be sustained by the supreme court where there is no mistake as to the law of the case. W.B. Mixon, E.G. Williams, and J.J. Cassidy, all of McComb, for appellees.
An individual may acquire an easement of way by adverse user though at the same time the public uses the way. It is not necessary for the use of the alley by the claimant to have been exclusive of all other persons; others, also may have used it as a means of ingress and egress to their property. If claimant under a claim of right, used the alley constantly for the statutory period, improving and keeping it in condition for his use, 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 formerly conveyed in writing.
Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814.
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. 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.
The decree of the learned chancellor, as written is directly opposed to the findings of the law and fact, by this court, as set out in its opinion affirming this cause.
Argued orally by Forrest B. Jackson, for appellant, and W.B. Mixon and Justin J. Cassidy, for appellee.
A.H. Harvey and wife, Mrs. Connie Harvey, M.P. Wichman and wife, Mrs. Kathleen Wichman, Mrs. Sarah Harper Livingston, and Mrs. Rachel Harper Womack filed a bill against Mrs. Lola A. McIntyre, her husband James McIntyre, Boyd Simmons and wife, Mrs. Mae Harrell Simmons, and Jeff D. Harrell to procure the opening and removal of obstruction placed in an alleyway claimed by the complainants as an easement for the use of their lots abutting on the said so-called alley. This alley or passageway was in Square B of McComb City, Mississippi, and ran north and south approximately two hundred feet from Fifth avenue, but did not go through the lot. The entire litigation grew out of the use and occupancy of this blind alley.
Prior to 1873 the Mississippi Valley Company was the owner of practically all the property in the city of McComb, Mississippi, and was owner of all the property in Square B in said city, and was the common source of title of all the parties involved in the litigation. The pleading set forth the title of the respective parties to the litigation, and there is no need to set it out in this opinion.
It appears that this alley, as it exists, is not on a direct line north and south, but slightly diverges from a direct line, and a portion of the alley is almost entirely on the property of Mrs. McIntrye as she claims her property to be. At the other end it passes across the true north and south line and enters upon the property of Harrell as claimed by him. It also appears that this alley or passageway was used by the property owners along the east side of the alley practically from the laying out of the city of McComb until shortly before the institution of this suit. The property occupied by Harrell formerly had no residences upon it, but for many years there had been a residence on the west side. After Harrell came into possession of the property, he claimed to be the owner of the alley, at least at its remote part from the street, and he claimed the land upon which it existed and made verbal remonstrances with other parties using it, including the complainants. However, the record shows that for many years prior to the time Harrell bought his property the alley had been used under claim of right by the abutting property owners on the east side of this alley. When Harrell remonstrated with the people who were using it, they claimed a right to use it and ignored the remonstrances. At one time Harrell placed an obstruction in this passageway, but seems to have removed it the following day or within a very short period of time. Shortly before the beginning of the suit, however, he placed posts in the central part of the alley so as to obstruct travel therein, which resulted in the bringing of this suit. The chancellor found the right to the alley had become fixed by use under claim of right and affirmed the complainants' right thereto. He ordered the obstruction, including a coal house or garage of one of the parties which encroached thereon to a certain extent, to be moved back to the property line of the owners.
It is insisted that the verbal remonstrances of Harrell were such as to prevent the statute running in favor of the complainants, the appellants relying upon Partnell v. Bidwell, 115 Me. 227, 98 A. 743, 5 A.L.R. 1320, and authorities holding in accordance with the doctrine of that opinion as shown by case note appended thereto beginning at page 1325 of 5 A.L.R. These cases appear to hold that to acquire an easement by prescription the owner must know of and acquiesce in the adverse claim, or the use must be so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed. Some of the authorities seem to hold that where the right is based upon acquiescence for a long period of time, the acquiescence will be negatived by remonstrances and protests against the use of the property. There also appears to be in addition to the acquiescence a method of acquiring it by prescription under claim of right by adverse users. We think the majority of the courts and the sounder reason hold that there must be something more than a protest to interrupt the running of a claim of right followed by actual users; there must be at least an interruption of the use of the way claimed as a right by the opposing person who opposes such claim. Where another is asserting a claim of right and using a passageway under such claim, a party must do something more than merely verbally protest; there must be a physical interruption or a court proceeding or some unequivocable act of ownership which interrupts the exercise of the right claimed and being used by the opposite parties.
We think the law in this state as applied to the case before us is announced in Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814. There is a distinction pointed out in this case between an easement acquired for and on behalf of the public known as a public easement and that of private user known as private easement. In the case of public easement there must be some act on behalf of the public evidenced by proper action by those representing the public, in order to obtain it. In other words, there must be an act on the part of the public body representing the public evidencing an intention to use and claim the right, but an individual may acquire an easement by way of adverse user, separate and apart from the public, although at the same time the individual is using the way other persons or the general public uses the same. It is not necessary for a private way to be acquired that the user shall be exclusive. The same holding was stated in the case of Board of Trustees of the University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522.
It is argued that the complainants did not own the property sufficiently long at the time to claim the alley by adverse user. The proof, however, shows that the former owners of the lots in question had used the alley under claim of right for a much longer period of time than the ten-year statute and that their right over the alley as an easement and passageway had become complete and vested as one for the use of the property which it abutted. It is true that a party cannot resort to the doctrine of tacking one's property to that of his predecessors whether neither possession is sufficient to acquire by prescription and user the right to the alley. It might be perfectly agreeable for a landowner to permit the person to use the property for a long period of time, whereas he would not permit another party to so use it for fear that claim would be set up of the right which the one would claim and the other would not claim, but if the owner of a lot under claim of right by adverse user has established title thereto as a part of his estate as abutting property, such right will pass to his vendee with a conveyance of the abutting property.
We have carefully considered the evidence and think the chancellor was justified in his finding, and the decree will be affirmed on both direct and cross-appeal.
Affirmed.
ON SUGGESTION OF ERROR.
On consideration of the suggestion of error, we think that it should be partially sustained, and it will be sustained to the extent that the cause will be remanded for the chancellor to establish by proper proceedings the true boundaries of the alleway as it had existed when laid out.
We think that in some respects the decree does not conform to the original alley laid out and used for the statutory period of time. The principles announced in the original opinion are adhered to.
Sustained in part, and cause remanded.