Clay v. Hava

• Decision Date: 07 November 1921
• Docket Number: 21870
• Citation: 89 So. 665,126 Miss. 823
• Court: Mississippi Supreme Court
• Parties: CLAY v. HAVA et al

89 So. 665

126 Miss. 823

CLAY v. HAVA et al

No. 21870

Supreme Court of Mississippi

November 7, 1921

October 1921

EASEMENTS. Right of way held to give neither party privilege to close same by gate.

The mere right of abutting landowners to use a thirteen-foot passageway for ingress and egress purposes gives neither one the privilege to close the passageway by a gate, and where it is not shown that gates across it were erected and maintained adversely and continuously for statutory period, no right to obstruct the passageway was acquired, and it must remain open for free use by abutting owners.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Hancock county, HON. V. A. GRIFFITH Chancellor.

Suit by Emma A. Clay against Adrian Hava and another. From a decree therein, plaintiff appeals. Reversed in part, and affirmed in part.

Judgment reversed in part, and affirmed in part.

Gex &amp Waller, for appellant.

The court below was right, because under the facts in this case, even though the road had not been conveyed to Miss Clay, yet she purchased according to the plat and according to deeds which had reserved this road for the use of her lot, and not for the use of other lots. We wish to refer the court to a few of the unbroken line of authorities showing that this holding of the lower court was correct.

Cyclopedia of Law and Procedure, Vol. 14, p. 1134: "Where an easement is annexed as appurtenant to land it passes as an appurtenance with a conveyance or devise of the dominant estate and need not be specifically mentioned in the deed or will." "A pure easement can exist only as an appurtenance to land, and it follows that an existing easement cannot be severed from the land to which it is appurtenant and made the subject of a separate grant or a revision."

(Ill. 1886) "When the owner of property has made reference to a private plat showing an alley or other easement, and assured the purchaser that such plat will be recorded, and the purchaser invests his money on the faith of such representations, the grantor will be estopped to deny the existence of such easement. Cinak v. Keeker, 7 N.E. 111.

(Ill. 1894) "Where land is platted by the owner into lots, blocks, streets and alleys, and lots are sold by him with reference to the plat, the purchasers acquire as appurtenant to the lots, the right to have the adjoining streets and alleys kept clear of obstructions both on and above the ground. Field v. Ballind, 37 N.E. 850.

(Mass. 1872) "A conveyance of land by deed bounding it on a private way not defined in the deed, but shown upon a plan referred to therein, and recorded in the registry of deeds, estops the grantor to deny the existence, not only of that way, but of any connecting ways, represented on the plan, which will enable the grantee to reach public ways in any direction as far as the grantor's title extends. Fox v. Union Sugar Refinery, 109 Mass. 292.

(N. Y. 1869) "M, who owned a parcel of land in a village, having laid off the same into lots, streets, etc., including an alleyway designated as 'S Alley,' and duly filed a map thereof, sold certain of the lots to C, describing them in the deed of conveyance as bounding upon S Alley, and referring to them by the number by which they were designated on the map. M, subsequently sold S Alley to J, who fenced it in. In this case it was held; that the reference to the map made the same a part of the deed, and operative, in connection with the description in the deed, to convey to C, a right of way over S alley, as appurtenant to his grant, and that neither M nor J had a right to fence in S Alley and exclude C from the enjoyment thereof. Cox v. James, 59 Barb. 144, affirmed in (1871) 45 N.Y. 557.

(N. Y. 1871) Landowners caused their lands to be divided into lots for building purposes, and a map to be made, upon which the lots were designated by numbers, and a strip of land adjoining them designated as an alley. The court held in this case, that a conveyance of one of the lots describing it by its number on the map, and specifying its boundaries as abutting on the line of the alley as laid down on the map, gave the grantee a right of way over the alley to the rear of his lot, as against the grantors and a subsequent grantee from them of the alley. Cox v. James, 45 N.Y. 557.

(Tex. 1888) Evidence that the owner of land platted in and conveyed the lots with reference to an alley, and that subsequent conveyances of the lots were executed, designating and referring to such alley, is sufficient to show a dedication of the land occupied by the alley, as between subsequent grantees of the lots, whether or not there has been a dedication to public use. Wolf v. Brass, 72 Tex. 133, 12 S.W. 159. See, also, the following: Baxter v. Arnold, 114 Mass. 577; Foote v. Man. Ry. Co., 12 N.Y.S. 516; Rexford v. Marquis, 7 Kans. 249; Combs v. Steward, 49 Ky. 463; Burke v. Wall, 29 Am. Rep. 316; Bussell v. New York Cent. R. Co., 23 N.Y. 61; Haight v. Littlefield, 41 N.E. 696; Ross v. Thompson, 78 Ind. 90; Teachout v. Capital Lodge I. O. O. F., 104 N.W. 440; Scott v. Moore, 37 S.E. 342; Agnew v. Paynee City, 113 N.W. 236; Brown v. Oregon Short Line R. Co., 102 P. 740; In Re Barkhausen, 124 N.W. 649. But whether Miss Clay owns the title to this road in fee simple or whether it is merely appurtenant to lot 89 and runs with her title, in either event Dr. Hava by express reservations in his and other deeds heretofore referred to, was precluded from the use of this road.

The court erred in holding that the owners of lot "A" had acquired the right to have and maintain a gate at the southeast end of the road. The court held that the respondents had acquired the right to maintain a gate at the southeast end of the road by prescription or adverse possession. We submit, if the court please that there is not the slightest ground in this record to sustain this holding of the court.

In the first place there could be no adverse possession of this roadway, in the second place, adverse possession to be available in Mississippi of any sort of land must be continuous, open, notorious and hostile possession under color of title for ten years or more, and if there were no color of title then it must be shown that there has been an adverse enjoyment or use of the road from time immemorial or for such a great length of time that the law presumes that a grant or deed once existed, which could never be less than twenty years.

Under the common law, prescription did not run in such cases under twenty years, and this court formerly held that twenty years was the length of time before the use could ripen into title by prescription, and that where the use was merely a permissive use, or a use by the consent of the owner, that prescription would not run. Lanier v. Booth et al., 50 Miss. 410.

But in recent cases it has been held by this court that a title to a right of way over land exercised adversely and under color of right would ripen into title by prescription within ten years.

This was held in the case of Warren County v. Mastronardi, wherein the court used the following words: "As a title to land is gained by ten years' actual, adverse possession, the use of a right of way over land for a like period, exercised adversely and under color of right, would constitute a good way over land, in order to ripen into a title by prescription, must be under color of right, and the privilege exercised must be such as to expose the party asserting such right of way to an action if he wrongfully exercised such right. Washburn on Easement (4 Ed.), 152 153, 27, 28; Lanier v. Booth, 50 Miss. 410.

"We do not regard the traveling public as asserting such privilege in this case. Surely they had no intention of inviting Cameron to sue them, and indeed, it is difficult to see how he could have maintained an action against them collectively or distributely."

This court has recently held; opinion by chief Justice SMITH, in the case of G. & S. I. R. R. Co. v. Adkinson, 117 Miss. 118, that the right to use a roadway might be acquired if the road is habitually used by the public for a period of ten years, where such use is accompanied by evidence other than mere travel thereon. In other words, mere use of the roadway unaccompanied by any color of right is insufficient. This case also holds that travel over the road by mere sufferance or permission of the owner is not sufficient to constitute adverse possession or holding. Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 793.

In the case of Tegarden v. McBean & Kibbe, 33 Miss. 283, the court held that the uninterrupted use by the public with the permission of the proprietor of part of his land as a roadway for a period of six years will not establish a right to the road by prescription.

See case of Rylee v. State, 106 Miss. 123. In that case it was shown that this road had been used by the public since time immemorial, or for more than fifty years. That the road had been worked by the board of supervisors, and had been maintained as a highway since the creation of the county of Benton and that under such usage, for such a great length of time...