Cummins v. Dumas

• Decision Date: 13 June 1927
• Docket Number: 26492
• Citation: 147 Miss. 215,113 So. 332
• Court: Mississippi Supreme Court
• Parties: CUMMINS et al. v. DUMAS. [*]

113 So. 332

147 Miss. 215

CUMMINS et al. v. DUMAS. ^[*]

No. 26492

Supreme Court of Mississippi

June 13, 1927

(Division A.)

1 EASEMENTS. Thirteen years' adverse possession of alley vested title, though person in possession was considered grantor because of joining in husband's deed.

Open notorious, hostile, exclusive, and adverse possession of alley for more than thirteen years held sufficient to vest title, even though person in possession was considered a grantor by virtue of joining in deed executed by her husband.

2. ADVERSE POSSESSION. Grantor by holding in such manner as to notify grantee of adverse claim, may acquire title by adverse possession.

Grantor may acquire title or right to lands by adverse possession as against his grantee, if possession and adverse holding are in such manner as to notify the grantee of adverse claim.

3 EASEMENTS. Limitations as to easements operate in same manner as to land itself.

Statute of limitations as to easements operates in the same manner and requires same length of time as if applied to land itself.

4 BASEMENTS. Grantee of alley easement is barred from obtaining relief against adverse possessor for more than thirteen years (Hemingway's Code, sections 2454, 2455).

Under Hemingway's Code, sections 2454, 2455, grantee of easement to use of alley is barred from relief against person in open, notorious, hostile, exclusive, and adverse possession for more than thirteen years.

Division A

APPEAL from chancery court of Adams county.

HON. R. W. CUTRER, Chancellor.

Suit by Dr. A. W. Dumas against Mrs. Carrie Cummins and another. Decree for complainant, and defendants appeal. Reversed and judgment rendered.

Decree reversed.

Engle & Laub, for appellants.

We wish first to discuss the case on the theory that Mrs. Cummins, herself, had made a direct deed conveying the privilege to use this alleyway to the appellee, and that she herself was now claiming by adverse possession against the right of appellee to exercise such privilege, claiming that he had abandoned the privilege, that he had been ousted from the right or privilege and that he had acquiesced in this for more than ten years next preceding the filing of this suit. We contend that on this state of facts the decree of the lower court should be reversed and that a decree should be rendered herein in favor of appellants. See sections 2271, 2318, Hemingway's Code.

The question now before the court is whether under our law a person who conveys land to another thereby enters into a perpetual guarantee that the grantee will never suffer the title or right conveyed to be lost by his subsequent conduct, whether of omission or commission. Does the grantee by making the conveyance set himself up and become the guarantee and surety for his grantee that such grantee will not permit himself to be ousted from possession and will not permit himself to lose his title by acquiescing in the grantor regaining title by adverse possession?

The provision in the law against a warrantor setting up an after-acquired adverse title relates solely to an adverse title which is not existent at the time of the conveyance. This is something entirely different from the grantor afterwards acquiring title by adverse possession. C. J., Subject, "Adverse Possession," pages 250-51.

Although for a period of over thirteen years Dr. Dumas had made no outward sign or interest in the right of way, the thought as to his rights and to his exclusion therefrom had been in his mind. On June 2, 1925, Dr. Dumas filed his bill of complaint. See Abbett v. Page et al., 9 So. 332.

We submit that under this state of the case, Mrs. Cummins could maintain her claim of adverse possession subsequently acquired and acquiesced in by the appellee, even as against her own warranty deed. However, our case is stronger than the case we have argued, as the adverse possession is claimed both by Mrs. Cummins and by her husband, Ed Cummins, who had no part in and no interest in the previous transactions with appellee and his authors in title. See Thompson on Real Estate, section 2495.

L. T. Kennedy, for appellee.

The appellee holds under a warranty from the appellant for a right and privilege for the use of said right of way and the defendants have not established, nor could they establish against their grantee, a title by actual, adverse, hostile, notorious and exclusive possession.

The fact that Dumas did not use the alleyway after 1911, while the feeling was bad between the parties, did not constitute adverse possession in the appellants. In order for the appellants to claim title to the property by adverse possession, it must rest upon some conduct upon their part and not upon what the appellee said or did.

Even if the law of adverse possession would apply in the case at bar as between a grantor and grantee, or in the case of easements and right of way, the evidence for the appellants falls far short of showing adverse, hostile, notorious and exclusive possession for the statutory period. After the trouble, Dr. Dumas did not use the right of way and the matter was not mentioned between the parties. Cummins testified that he did not tell Dumas to stay out of the right of way until 1925; but if he had, such advice upon his part would not satisfy any essential element necessary to constitute adverse possession.

The facts show that this right of way was a way of necessity to the rear of said lots and even though it had not been mentioned in the deed, there being an alleyway at the location, the appellee would have been entitled to the use thereof on account of it being a necessity. Mitchell v. Woodson, 37 Miss. 567.

The possession of the alleyway and the title to the alleyway have, at all times, been in the grantor, appellants, and they were entitled to possession thereof and this appellee was not entitled to possession. Therefore the appellants' possession to the right of way was not adverse to the right of appellee and could not ripen into adverse possession.

OPINION

MCGOWEN, J.

The appellee, Dr. A. W. Dumas, complainant in the court below, filed his bill in the chancery court of Adams county against appellants, Mrs. Carrie Cummins and her husband, Ed Cummins, defendants in the court below, alleging that he was owner of a lot, or parcel of land, in Natchez, Miss.; that the defendants, the Cummins, were adjacent land owners; that between the lots of complainant and defendants there was a right of way, or private alley, thirty-five feet wide, extending from Oak street one hundred sixty feet in a southerly direction, and in the rear of the property owned by the complainant; that by a deed from the Shady Side Land Company conveying the lot to him, he acquired a right of way, privilege, and license to, over, and through said alley; and that defendants had closed up said alley, and to prevent his use thereof had constructed certain buildings therein obstructing same, so that complainant could not use the alley.

It is further alleged that it was necessary for complainant to use this alley in order to have ingress to and egress from his property. He prayed for an injunction restraining defendants from obstructing the alley, and asked that they be perpetually enjoined from closing, or obstructing the right of way, or in any way interfering with his free use thereof. To this bill, complainant attached a copy of his deed from the Shady Side Land Company, marked Exhibit A. The deed was a warranty deed and contained this provision with reference to the alley, after describing the lot of land:

"And also a right of way, privilege, and license to, over, through, and from a private alley, about thirty-five (35) feet wide, extending from Oak street, about one hundred and sixty (160) feet, in a southerly direction, immediately in the rear of said Real's lot and the lot herein described; being the same lot of land and right of way, privilege, etc., granted and conveyed to said parties of the first part by Charles R. Purnell and wife by deed dated February 17, A. D. 1893," etc.

The defendants answered, admitting that they lived on adjoining property, but denied that the complainant had any right of way, privilege, and license to, over and through, the private alley, thirty-five feet wide, extending from Oak street one hundred sixty feet in a southerly direction. They contended that the property in controversy was their own property; that they had fenced it off; that they had built houses thereon. They denied the complainant the right of ingress and egress over and across the said alleyway, and aver that while complainant may have had a paper title to the alley, or license to use the same, he had forfeited such right to use the alley for the reason that for over ten years next before the bringing of this suit the defendants had been in open, adverse, continuous, and uninterrupted possession and enjoyment of the right of way, claiming same against the complainant and all persons whomsoever and against the world, that complainant had acquiesced in this, their claim, and that for more than ten years before the filing of this suit the alleyway had been completely fenced off from the complainant. In other words, the defendants plead the ten-year statute of limitations; and they made their answer a cross-bill and prayed the court that they be decreed the owners of the property in dispute.

The complainant offered in evidence the deed to him from the Shady Side Land Company, dated October 29, 1901; he also offered in evidence a certified copy of a deed from Charles R. Purnell and wife to the Shady Side Land Company, dated February 17, 1893, to the same property and the same right of way, and of Carrie Purnell to Charles R. Purnell of the same property. It was then shown...