Opinion
No. 2000-CT-00835-SCT.
November 20, 2003.
COURT FROM WHICH APPEALED: ADAMS COUNTY CHANCERY COURT, TRIAL JUDGE: HON. PERCY L. LYNCHARD, JR., DATE OF JUDGMENT: 2/11/2000
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: L. JACKSON LAZARUS, JOSEPH S. ZUCCARO
ATTORNEYS FOR APPELLEES: T. JACKSON LYONS, WILLIAM F. RILEY, BOBBY L. COX
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. Jeffery and Sheree Bryant filed a petition in the Adams County Chancery Court against Ray Skates to determine whether Quasar Drive, located in Natchez, was a private road that entitled them to its exclusive use or a public road to be used by Skates and the general public. The chancellor held that the right of ownership was vested exclusively in the Bryants. Additionally, the chancellor enjoined Skates from the use of Quasar Drive unless he was given permission to do so by the Bryants. On appeal, the Court of Appeals held that there was insufficient evidence for the chancellor to determine that a common law dedication of the road had occurred. Skates v. Bryant , No. 2000-CA-00835-COA (Miss.Ct.App. Nov. 6, 2001). Furthermore, the Court of Appeals held that there was sufficient evidence to support the chancellor's conclusion that the use was permissive, not hostile, and that the road was private. Therefore, the Court of Appeals found that the chancellor did not abuse his discretion and affirmed his judgment. Skates filed his petition for writ of certiorari claiming that the subject road should be considered a public road (1) under the common law doctrine of dedication as a result of the previous owner subdividing his land, and (2) under the doctrine of "user" as a result of hostile use for more than 10 years. We granted Skates's petition and now affirm.
FACTS
¶ 2. Jeffery and Sheree Bryant own property in Natchez adjoining U.S. Highway 61. A road or drive known as Quasar Drive is located on the east side of the property. The Bryants received this land by conveyances from George Bryant, Jeffery's father, who named the road in honor of Quasar televisions, which he sold. Skates is the owner of the land located immediately to the south of the Bryants' property. Originally, Skates's property was also owned by George Bryant, who developed a trailer park on this property sometime in the 1960s. George created Quasar Drive as a means of ingress and egress to this property. George conveyed this property to James McManus in 1972, who continued to operate the trailer park for a period of time. After McManus's death in 1984, Skates purchased the property from McManus's wife. Evidence was presented that for at least ten years, while the trailer park was in existence, Quasar Drive was used by residents of the park and others. Eventually, the trailer park ceased to exist. Even after Skates had obtained ownership of the property, there was an approximately two year period in which Quasar Drive had become overgrown with kudzu and was impassable. Skates's property was also accessible by other roads besides Quasar Drive.
¶ 3. At some point Skates placed some warehouses on his property, and the Bryants constructed a house alongside Quasar Drive. The Bryants contend that since Skates had placed warehouses on his land the flow of traffic had increased on Quasar Drive, which frustrated their use and enjoyment of the land. On July 17, 1997, Jeffery Bryant mailed a letter to Skates addressing the increase in traffic on Quasar Drive. The letter informed Skates that Quasar Drive was 100 percent on private property and as of July 15, 1997, it would only be used as a private drive to his residence. Nevertheless, Skates and those that utilized the warehouses on his property continued to use the road. Additionally, Skates had bulldozed a portion of the pavement of Quasar Drive and replaced it with gravel. It was due to the continued commercial use of the road that this matter went to trial.
¶ 4. At trial, Skates attempted to establish that the road was a public road and that he and the general public were entitled to use the road. Alternatively, Skates claimed adverse possession or prescriptive easement. The chancellor personally viewed the property in question before trial. A review of the deed between George Bryant and McManus does not show Quasar Drive being conveyed in the legal description. The chancellor found that Skates's use of the road was not exclusive or open and notorious, Skates's use of the road was permissive, and the road was not public. As a result, the chancellor held that the right of ownership was vested exclusively in the Bryants. Additionally, the chancellor enjoined Skates from the use of Quasar Drive unless he was given permission to do so by the Bryants.
¶ 5. On direct appeal, the Court of Appeals held that there was insufficient evidence for the chancellor to determine that a common law dedication of the road had occurred. It further held that there was sufficient evidence to support the chancellor's conclusion that the use was permissive, not hostile, and the road was private. Therefore, it found that the chancery court did not abuse its discretion and affirmed its decision.
DISCUSSION Standard of Review
¶ 6. We will not disturb the factual findings of a chancellor unless the findings are manifestly wrong or clearly erroneous. Nettleton Church of Christ v. Conwill , 707 So.2d 1075, 1076 (Miss. 1997). This same standard is applied even when conflicting evidence has been presented by the parties. See Harvey v. Meador , 459 So.2d 288, 293 (Miss. 1984). In the case at bar, there was conflicting evidence regarding whether Quasar Drive had become a public road under the theory of common law dedication. There was also conflicting evidence regarding whether Skates's use of the subject road was permissive or hostile.
I. COMMON LAW DEDICATION.
¶ 7. A street will become a public street under common law dedication when the survey and sale of lots makes reference to the streets. "If the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public." Luter v. Crawford , 230 Miss. 81, 88, 92 So.2d 348, 351 52 (1957).
¶ 8. Skates claims that the Court of Appeals' decision here is in conflict with our decision in Nettleton Church of Christ , and other cases. However, this case is distinguishable from Nettleton (and related cases) in that the land in the present case was not sold according to a subdivided plat or map. The back lot which was initially sold by George Bryant to McManus, and later to Skates, was one large lot which was accessed by Quasar Drive. The Court of Appeals considered the question as follows:
Although some of the evidence was disputed, there was evidence in the case at bar which showed that prior to the conveyance from George Bryant to McManus, George had a map prepared by engineer Richard Logan. The map showed individual lots owned by George, along with the one being purchased by McManus, as well as roadways, including the road called Quasar Drive. In this deed, there was a reference made to the map or plat; however, as asserted by the Bryants, the deed stated that the reference is made for the purposes of assisting in the description. Quasar Drive was not contained in the legal description.
The testimony given only reflected that George Bryant may have initially intended to establish a subdivision on the lot currently owned by Skates; however, there is no evidence of a more conclusive nature to reflect that it had been formalized. See Magnolia Memorial Gardens, Inc. v. Denton, 317 So.2d 38, 42 (Miss. 1975) (Mere plans for further development of a cemetery garden only shows an intent to develop and does not establish dedication for a public cemetery.)
In Magnolia Memorial Gardens, the Mississippi Supreme Court continued and stated:
In order to constitute a dedication at common law, it is essential that there be an intention of the owner of the land to donate the same for public use. It has been said that the controlling element of the common law dedication is the intent to donate. Donation is the act by which the owner of something voluntarily transfers the title and possession of the same without any consideration.
Furthermore, another essential element of a dedication is that it shall be for the public at large, not to one person or a limited number of persons or for the exclusive use of a restrictive group of individuals.
Skates , ¶¶ 26-28 (citations omitted). The facts in this case reveal that George's intent was to operate a trailer park. Quasar Drive was used by George as access for the residents of the park; therefore, it was intended to be used by a restrictive group of people, not the public in general. Additionally, the conveyance from George to McManus was a wholly private act and not intended to benefit the public. Furthermore, as argued by the Bryants, the plat that was attached to McManus's deed did not show a subdivision that was going to be sold by lots and blocks to the general public. Id .
¶ 9. Skates further claims that Quasar Drive was listed as a public road on the records of the Mississippi Department of Transportation and the Adams County Board of Supervisors, and he supported this allegation with testimony of county road department employees. However, Skates was unable to present any minutes from the Board of Supervisors stating that Quasar Drive had been designated as a public road.
¶ 10. Skates's argument that Quasar Drive is public is further belied by his actions prior to this litigation, when he removed some of the paving from the road with a bulldozer. We find that the Court of Appeals did not err in affirming the chancery court on this issue.
¶ 11. In his dissent, Presiding Justice McRae cites much evidence which supports Skates's contention that Quasar Drive was public. However, as pointed out above, the applicable standard of review is that we will not disturb the factual findings of a chancellor unless the findings are manifestly wrong or clearly erroneous. Nettleton Church of Christ , 707 So.2d at 1076. This standard is applied even when conflicting evidence was presented by the parties. Harvey , 459 So.2d at 293.
¶ 12. The evidence before the chancellor was as follows: While the trailer park was in existence, Quasar Drive was not only used by residents of the park, but also by such people as meter readers, school buses, and the postal service. A county worker with the road department cut the grass, put up a stop sign and patched potholes at the county's expense. The county road department prepared a school bus turnaround on Quasar Drive. There were no other completed work orders in the road department file. A general highway map showed the road, but the road was not named on the map. An Adams County map index classified Quasar Drive as a public road. An inspector submitted a report to the Board of Supervisors on the condition of the road, but the Board of Supervisors never classified Quasar Drive as a public road. The deed between Bryant and McManus did not show Quasar Drive being conveyed in the legal description. A land survey performed in 1977 and filed with the chancery clerk's office showed Quasar Drive. The trailer park ceased to exist. Quasar Drive became overgrown and was impassable. Skates built warehouses on the property, and the Bryants built a house.
¶ 13. However, there was absolutely no evidence that George Bryant intended to donate the road to public use or to benefit the public in any way. The road was intended to be used by the residents of the trailer park, a restrictive group of people, not the public in general.
¶ 14. Especially crediting the evidence that the road was never designated as a public road by the Board of Supervisors and that there was no evidence of George Bryant's intent that the road was to be used by anyone other than the trailer park residents, we find that the chancellor's findings were neither manifestly wrong nor clearly erroneous.
II. PUBLIC ROAD BY PRESCRIPTION.
¶ 15. Skates mentions the ten-year use of Quasar Drive but does not attempt to formulate an argument nor cite any authority for the proposition of establishing this road as a public road by prescription. Pursuant to Hoops v. State , 681 So.2d 521, 526 (Miss. 1996), we are under no obligation to consider a claim when no authority is offered in support thereof.
¶ 16. Skates raised this issue on appeal to the Court of Appeals. According to Turner v. Duke , 736 So.2d 495, 498 (Miss.Ct.App. 1999), the necessary elements to establish a public road by prescription, much like those for adverse possession, include (1) open, notorious and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for ten years. When a road is not proven to be a dedicated public road under statute, there must be more evidence than mere travel by the public on the road for ten years. 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." Id.
¶ 17. There is sufficient evidence in the record to support the chancellor's conclusion that the use was permissive and the road was private. The Bryants testified that the use of Quasar Drive by Skates and others was with their knowledge and permission up until Jeffery Bryant sent the letter to Skates in 1997. While Skates offered evidence to contradict the permissive use principle, the chancellor's findings are not manifestly wrong or clearly erroneous:
A use that has its inception in the permission of the owner will continue as such until a distinct and positive assertion of a right hostile to the owner is brought home to him by words or acts. To transform a permissive use into an adverse one there must be (1) a distinct and positive assertion of a right hostile to the rights of the owner, which is brought to his attention, or (2) a change in the character of the use.
Patterson v. Harris, 239 Miss. 774, 125 So.2d 545, 550 (1960) (citations omitted). Up until Bryant sent the letter to Skates in 1997, the element of hostility was missing. Because it has not been 10 years since that letter was sent, Skates cannot prevail on this theory.
CONCLUSION
¶ 18. Because Quasar Drive was not a public road and was not dedicated by public use under the common law, and because the road did not become a public road by prescription, we affirm the judgments of the Court of Appeals and the Adams County Chancery Court.
¶ 19. AFFIRMED. PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
¶ 20. The majority erroneously finds that Quasar Drive is not a public road under the common law doctrine of dedication or under the doctrine of prescription. As the evidence presented indicates, Quasar Drive was dedicated for public use as a "public road" by map and deed language. Alternatively, Quasar Drive became a public road by way of prescription, and there is no evidence to justify a finding of abandonment of use. For these reasons, I dissent.
¶ 21. First it is essential to state certain facts to clear up confusion. Testimony indicates that the road in question was built and used by the public for years before George Bryant (George) became the purchaser of the property. In fact, a 1964 survey shows the road as a "public road." George named the road Quasar Drive in 1969 or 1970 as it was the road which provided access to a trailer park which he had established on his land. The trailer park, with at least thirty family units, operated continuously for 15 years till 1984 or 1985. However, stragglers in the trailer park did not vacate until around 1988 or 1989. During the trailer park's existence, school buses, postmen, and others used Quasar Drive.
¶ 22. In 1977, George sold Cecil McManus (McManus) a portion of his property. During this sale, George had a survey conducted which reflects subdivision of the land into lots. The maps and plats of this survey were placed on record in the Office of the Chancery Clerk of Adams County, Mississippi, and labeled George Bryant Lands. The map and plat clearly show Quasar Drive as a cul-de-sac into the subdivided land. Although George never finished subdividing his land according to the map, all testimony indicated that his intent was to subdivide and sell lots. This map was incorporated into the deed by reference. The deed executed between McManus and George clearly stated that the land conveyed is "further described by a map or plat prepared by Richard T. Logan, P.E. dated May 1977, a copy of which is attached hereto as Exhibit `A' and made a part hereof." As already stated, this survey, map, and plat clearly shows Quasar Drive as a cul-de-sac and public road of ingress and egress. McManus continuously used Quasar Drive from the time of purchase in 1977 till 1984.
¶ 23. In 1984, the McManus lot was conveyed to Ray Skates (Skates). Later, some of George's property was deeded to his son Jeff Bryant (Jeff) and his wife, Sheree Bryant. In 1997, Jeff wrote a letter to Skates revoking his permission to use Quasar Drive.
¶ 24. Facts presented which indicate public use of Quasar Drive include:
(1) Road maintenance by the County, which included gravel work, the posting and maintaining of stop signs, the posting and maintaining of streets signs, and mowing of the grass;
(2) School bus usage of the road not only while the trailer park was still maintained, but afterwards as a turn around spot for the bus;
(3) Usage of the road by maintenance crews, such as power, water, and telephone crews;
(4) Before George named the road, a 1964 survey of the County shows the Road to be a "public road";
(5) The road is listed on the State's General Highway Map;
(6) The road is listed on the Civil Defense map of Adams County;
(7) Minutes of the Board of Supervisors shows that Quasar Drive was inspected by the County;
(8) Jeff's own deed filed in the Office of the Chancery Clerk of Adams County, Mississippi specifically states in its description of the conveyance property that it is "[s]ubject to the rights of the public in that portion known as Quasar Drive";
(9) Emergency 911 records list Quasar Drive as "Public";
(10) The area in question is highly commercialized with at least sixteen businesses operating within 700 yards from the road;
(11) One such commercial business operating in close proximity, Bobby's Service Center, has even suggested that its customers use Quasar Drive to access its business;
(12) Quasar Drive is one mile from the busy Morgantown Intersection and .7 mile from the Natchez City Limits;
(13) The deed of McManus, the predecessor owner of Skates property, reflects that the property conveyed is described by a certain attached plat which reflects subdivision of George's property into lots and Quasar Drive as a public right of way;
(14) McManus continuously used Quasar Drive for ingress and egress from 1977 till 1984;
(15) Skates continuously used Quasar Drive for ingress and egress from 1984 till 1997, when this lawsuit was filed; and
(16) Residents of the trailer park, visitors, and others used Quasar Drive for fifteen years as their exclusive route of ingress and egress from 1969 till 1984.
Although Jeff omits these facts from his brief, they are all in the record and substantiated by evidence and testimony.
¶ 25. As the evidence indicates, Quasar Drive was dedicated for public use as a "public road" by map and deed language. As has been stated by this Court, "[i]f the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets, and alleys, such action will amount to a dedication of the streets and alleys to the public." Luter v. Crawford , 230 Miss. 81, 88, 92 So.2d 348, 351-52 (1957). See also Nettleton Church of Christ v. Conwill , 707 So.2d 1075, 1076 (Miss. 1997); Coleman v. Shipp , 223 Miss. 516, 530, 78 So.2d 778, 784 (1955); Sipes v. Town of Tishomingo , 735 So.2d 1047, 1049 (Miss.Ct.App. 1999). "[I]n order to consummate a dedication, there must be an acceptance . . . and such acceptance may occur either by the formal act of the local municipal authority, or it may be inferred or implied from sufficient circumstances." Luter , 92 So.2d at 352. See also Sipes , 735 So.2d at 1049.
Other cases finding the same include Skrmetta v. Moore , 227 Miss. 119, 86 So.2d 46 (1956); Panhandle Oil Co. v. Trigg , 148 Miss. 306, 114 So. 625 (1927); Indianola Light, Ice Coal Co. v. Montgomery , 85 Miss. 304, 37 So. 958 (1904); City of Vicksburg v. Marshall , 59 Miss. 563 (1882); Briel v. City of Natchez , 48 Miss. 423 (1873); Vick v. City of Vicksburg , 2 Miss. (1 How.) 379 (1837).
¶ 26. Under the facts, all of the elements for dedication have been met. The deed executed between George and McManus, the original buyer of a portion of the land later acquired by Skates, contains language referencing Quasar Drive and a plat map whereby George had the land surveyed and prepared for division into lots. Specifically, the deed states "further described by map or plate prepared by Richard T. Logan, P.E., dated May, 1977, a copy of which is attached hereto as Exhibit `A' and made a part hereof." In fact, the deed executed in favor of McManus included as an attachment the map or plat depicting the lot divisions and Quasar Drive. Skates as the buyer of said property acquired all the rights associated with McManus's property ownership which included the dedication and use of Quasar Drive. There is of course acceptance illustrated by the use of Quasar Drive not only by McManus for seven years, but also by Skates for thirteen years. Additionally, the deed executed between George and Jeff specifically states that the conveyance is "subject to the rights of the public in that portion known as Quasar Drive." It is abundantly clear from the evidence that Quasar Drive has been dedicated for public use.
¶ 27. Furthermore, even if public dedication were not found to apply, Quasar Drive is still a public road by prescription. As early as 1894, we have recognized that a road may become subject to public use by easement or prescription. See Alcorn v. Sadler , 71 Miss. 634, 634-35, 14 So. 444, 444-45 (1894). The case most factually on point comes from the Court of Appeals and is Turner v. Duke , 736 So.2d 495 (Miss.Ct.App. 1999). The Turners had acquired a tract of land which Duke Road bisected. Id. at 496. The Turners built a house along Duke Road. They later claimed that the enjoyment of their house was hampered by traffic, so they built two gates along Duke Road and gave keys to the gates to certain individuals. The Dukes protested the installation and use of the gates and filed a complaint in the Chancery Court of Carroll County claiming that Duke Road was a public road and therefore, the Turners should be enjoined from blocking the road with gates. It was stipulated that from 1980 till 1994, the Board of Supervisor minutes reflected that expenditures had been made to maintain Duke Road, but that the Board had never dedicated the road as a public road in the minutes. Id. Testimony at trial showed that public funds had been used to maintain Duke Road and a school bus had continuously used Duke Road to transport children living there. Id. at 497. Ultimately, the trial court sided with the Dukes and declared Duke Road to be a public road and thereby enjoined the Turners both to remove the gates and directed them not to prevent use of the road. Id. at 496. On appeal, the Turners argued, as does Jeff in the present case, that the road is not a public road since the only effective action to make the road public would have been the County Board of Supervisors' official designation of the road as public road in its minutes. Id. at 497. The Court of Appeals declined to adopt this view and asserted that precedent on the issue does not support such an argument and declined to abandon such precedent and adopt the reasoning and arguments of the Turners. Id.
See also Coleman v. Shipp , 223 Miss. 516, 530-31, 78 So.2d 778, 784 (1955).
¶ 28. Next, the Turners argued, as does Jeff in the present case, that Duke Road had not become a public road by prescription since it did not meet the elements for such. Id. at 498. The elements to establish a public road by prescription include:
(1) open, notorious and visible;
(2) hostile;
(3) under claim of ownership;
(4) exclusive;
(5) peaceful; and
(6) continuous and uninterrupted for ten years.
Id. (citing Myers v. Blair , 611 So.2d 969, 971 (Miss. 1992) (citations omitted)). The Court of Appeals then analyzed all six elements. As to the first element of open, notorious, and visible, the Court of Appeals found this element was met by the county's actions of maintaining the road and testimony showing that the public utilized Duke Road as a public road. Id. Likewise the second element of hostile was satisfied "because the public acted adversely to the interest's of the owners of the land by entering onto and using the Duke Road without subservience to these owners." Id. (citing 2 C.J.S. Adverse Possession § 60 (1972)). The third element of under claim of ownership was also satisfied "because the public acted to appropriate the land for its use." Id. (citing 2 C.J.S. Adverse Possession § 61 (1972)). Exclusive, the fourth element, was satisfied "because the public's maintenance of the Duke Road and use as a public road were acts asserting ownership." Id. (citing 2 C.J.S. Adverse Possession § 54 (1972)). The fifth element, peaceful, was also satisfied "because the use was undisturbed." Id. (citing 2 C.J.S. Adverse Possession § 169 (1972)). As with the sixth element, continuous and uninterrupted for ten years, the Court of Appeals found that since there had been no public dedication through the County Board of Supervisors' designation of Duke Road as a public road, the County's action regarding the road must be "deduced from [other actions illustrated in] the board of supervisor's minutes." Id. (citing Myers , 611 So.2d at 972). After a review of the Board of Supervisors' minutes, the court found that the County had appropriated funds and maintained the road and the public had used the road for more than ten years. Id.
¶ 29. The facts and circumstances of the present case are very similar. Here we also have a family who aggrieved by traffic flow decided to prohibit the use of the road upon which their house sits. Instead of a gate, the Bryants chose to put individuals, such as Skates, on notice through written letter that indicating that they could no longer use Quasar Drive. Also, as in Turner , the Board of Supervisors has maintained and appropriated funds for Quasar Drive. Using the six elements above, Quasar Drive is a public road by prescription as illustrated below:
(1) Open, Notorious, and Visible:
Since 1964, Quasar Drive has been in public use, although not named at that time. The County has appropriated funds, maintained, and inspected Quasar Drive. Quasar Drive is listed on the State's General Highway Map, the Adams County Civil Defense map, and Emergency 911 records.
From 1984 till 1997, the filing of this lawsuit, Skates has continuously used Quasar Drive.
Additionally, many commercial businesses are located in the area and at least one has used Quasar Drive as a recommended route to their business.
(2) Hostile:
To quote Turner, "the public [has] acted adversely to the interests of the owners of the land by entering onto and using the [Quasar Drive] without subservience to [the owners]." Id.
(3) Under Claim of Ownership:
The public has consistently acted to appropriate the land for its use as illustrated by the facts listed earlier.
(4) Exclusive:
The public's maintenance of the road, posting and maintaining of stop signs and street signs, inspection of the road's conditions, and mowing of the grass amount to acts asserting ownership and exclusive control.
(5) Peaceful:
Since around 1964 Quasar Drive has been in use by the public. There was only a momentary lapse of time whereby the conditions of portions of Quasar Drive made it hard to maneuver. However, these conditions were soon repaired, and there is evidence tending to show that even during this period of time the road was still in use.
From 1984 till 1997, the filing of this lawsuit, Skates has used Quasar Drive.
There are many commercial businesses in the area and at least one is documented to have recommended Quasar Drive as a route of entry.
(6) Continuous and Uninterrupted for Ten Years:
Again, since around 1964, Quasar Drive has been in public use, although not named at the time. In fact from 1969 to 1989, a period of twenty years, the road was the exclusive ingress and egress to a trailer park situated on the George's land. Quasar Drive was not only used by the trailer park residents but others included school buses, postmen, visitors, and county work crews. Additionally, from 1984 till 1997, the filing of this lawsuit, Skates has used Quasar Drive to access his property. There can be no doubt, Quasar Drive has been in continuous and uninterrupted use for over 10 years.
Having evaluated the facts according to the elements for prescriptive use, it is obvious that Quasar Drive is a public road by prescription.
¶ 30. Additionally, Jeff's argument regarding abandonment fails. "To constitute an abandonment, the use for which the property is dedicated must become impossible of execution, or the object of the use must wholly or totally fail." Nettleton Church of Christ v. Conwill , 707 So.2d at 1077 (quoting 23 Am. Jur.2d Dedication § 67)). "[M]ere nonuser will not constitute an abandonment." Id. (citing Bright v. Michel , 242 Miss. 738, 137 So.2d 155, 158 (1962)).
See also Sipes v. Town of Tishomingo , 735 So.2d 1047, 1050 (Miss.Ct.App. 1999).
¶ 31. The only conceivable evidence relating to abandonment is the assertion that for a period of unknown time a portion of Quasar Drive was allegedly incapable of passage. The key factor to this assertion is that it was only a portion of Quasar Drive that was allegedly overgrown making passage difficult. For the most part, Quasar Drive was still open and maneuverable and even that portion which was overgrown was not impassable. There has been no abandonment of Quasar Drive.
¶ 32. Thus, the chancellor and the Court of Appeals erred in failing to find that Quasar Drive is a public road. Accordingly, I would reverse their judgments and remand this case to the chancery court with directions that it enter an appropriate judgment adjudicating that Quasar Drive is a public road and finally dismissing the Bryants' petition and this action with prejudice.
¶ 33. For these reasons, I dissent.