Gano v. Strickland, 37898

• Decision Date: 23 April 1951
• Docket Number: No. 37898,37898
• Citation: 211 Miss. 511,52 So.2d 11
• Court: Mississippi Supreme Court
• Parties: GANO v. STRICKLAND.

Page 11

52 So.2d 11

211 Miss. 511

GANO v. STRICKLAND.

No. 37898.

Supreme Court of Mississippi, Division B.

April 23, 1951.

E. B. Taylor, Chas. W. Wade, Greenville, for appellant.

Joseph E. Wroten, Greenville, for appellee.

ARRINGTON, Commissioner.

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, distincity 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.' 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...