Keener Properties, L.L.C. v. Wilson, No. 2004-CA-00613-SCT.

• Decision Date: 13 October 2005
• Docket Number: No. 2004-CA-00613-SCT.
• Citation: 912 So.2d 954
• Parties: KEENER PROPERTIES, L.L.C. and Sarah Elizabeth Keener v. Robert B. WILSON, the Maurice G. Wilson Trust and Anderson-Tully Company.
• Court: Mississippi Supreme Court

912 So.2d 954

KEENER PROPERTIES, L.L.C. and Sarah Elizabeth Keener v. Robert B. WILSON, the Maurice G. Wilson Trust and Anderson-Tully Company.

No. 2004-CA-00613-SCT.

Supreme Court of Mississippi.

October 13, 2005.

Jeffrey Todd Waycaster, Natchez, attorney for appellants.

Melvin Hurley McFatter, Port Gibson, attorney for appellees.

Before SMITH, C.J., GRAVES and DICKINSON, JJ.

GRAVES, Justice, for the Court.

¶ 1. Denied the right to preclude certain parties from ingressing and egressing along a road which crossed their property, the landowners appeal and contend that the chancery court erred in finding that those parties established a prescriptive easement over their property and that their due process rights were not violated. Finding no reversible error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Robert B. Wilson, The Maurice G. Wilson Trust and Anderson-Tully Company (hereinafter referred to as "Wilson" and "Anderson-Tully") alleged that they had a prescriptive easement to ingress and egress along a road ("the road") which crossed the property of Keener Properties LLC and Sarah Elizabeth Keener (collectively known as "Keener"). Wilson and Anderson-Tully alleged that the primary basis of this right of ingress and egress over Keener's property was the long use and maintenance of the road by them, their predecessors in interest and their respective lessees, to access numerous old homesteads and farms that once existed along the road and to access their property for timber growing and harvesting activities and for hunting and other recreational purposes. Following a three-day trial and a view by the chancellor of the road and the property over which it passed, the chancery court held that Wilson and Anderson-Tully had established a right of ingress and egress over the Keener property along the road by prescriptive easement. The chancery court then issued its Findings of Fact and Conclusions of Law. However, the chancery court's original Findings of Fact and Conclusions of Law did not specify whether the easement included the right to run underground utilities. Therefore, Wilson and Anderson-Tully filed a Motion for Additional Findings of Fact and Conclusions of Law. Following a hearing on the motion, the chancery court issued Additional Findings of Fact and Conclusions of Law establishing the width of the prescriptive easement and holding that the easement included the right to run underground utilities along the easement. Judgment was entered accordingly. On appeal, Keener presents two major issues for consideration: (1) Whether the chancery court erred in finding that Wilson and Anderson-Tully established a prescriptive easement across Keener's property; and (2) Whether the chancery court's granting Wilson and/or Anderson-Tully the right to install underground utilities along the road over Keener's property violated Keener's due process rights.

ANALYSIS

¶ 3. We will not disturb a chancellor's findings unless they are was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Nichols v. Funderburk, 883 So.2d 554, 556 (Miss. 2004). Where there is substantial evidence to support a chancellor's findings, this Court is without the authority to disturb a chancellor's conclusions, although it might have found otherwise as an original matter. Id. Additionally, where the chancellor has made no specific findings, this Court will proceed on the assumption that the chancellor resolved all such fact issues in favor of the appellee. Id. However, the chancery court's interpretation and application of the law is reviewed under a de novo standard. Weissinger v. Simpson, 861 So.2d 984, 987 (Miss. 2003).

I. Did the chancery court err in finding that Wilson and Anderson-Tully established a prescriptive easement across Keener's property?

¶ 4. The standard and burden of proof to establish a prescriptive easement¹ is the same as a claim of adverse possession of land. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1153 (Miss. 1992). In order to establish adverse possession or a prescriptive easement the evidence must show that possession is: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Id. These elements must be proven by clear and convincing evidence. Id.

¶ 5. Keener argues that Wilson and Anderson-Tully did not meet their burden of proof in establishing a prescriptive easement across Keener's property in the absence of evidence that Wilson and Anderson-Tully or their predecessors in interest made "exclusive" use of the road. Wilson and Anderson-Tully claim that they submitted sufficient evidence to prove that each met the "exclusivity" requirement.

¶ 6. Initially, it is necessary for us to properly define the term "exclusive" as it is applied to a prescriptive easement. After a careful review of relevant case law, we adopt the definition of the term "exclusive" as defined by the Court of Appeals. In Lynn v. Soterra Inc., 802 So.2d 162, 168 (Miss.Ct.App. 2001), a boundary line dispute was brought between owners of property to the north and the south. When discussing the issue of exclusivity in the context of adverse possession, the Court of Appeals stated:

The question in the end is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership. Id. It was not necessary for Buford or Soterra to exclude others from the use of the road, but only that there was "an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant's conduct must afford an unequivocal indication that he is exercising dominion of a sole owner."

Id.

¶ 7. In Moran v. Sims, 873 So.2d 1067, 1069-70 (Miss.Ct.App. 2004), the claimant sought a prescriptive easement with respect to a driveway over the landowners' property that provided claimant access to a highway. When analyzing the exclusivity requirement for a prescriptive easement, the Court of Appeals stated that "`Exclusive' use does not mean that no one else used the driveway. Exclusivity here means that the use was consistent with an exclusive claim to the right to use." Id.

¶ 8. We conclude that the distinction to be made when using the term "exclusive" as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public. Wilson and Anderson-Tully are correct when they assert that to meet the exclusivity requirement, they did not have to exclude others or the general public from using the road across Keener's property. They were only required to show a claim to the right to use the road over and above that of a member of the indiscriminate public. Keener's use of the Lynn case to establish the requirements of a prescriptive easement is acceptable, but the use of the case in order to define the term "exclusive" is not viable because of the subtle distinctions which exist when using the term in relation to adverse possession and a prescriptive easement.

¶ 9. In Board of Trustees of University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522 (1919), this Court held that the fact that the public did use the roadway did not affect the easement of Gotten. In Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814 (1928), Jenkins was granted a prescriptive easement along an alley belonging to McQuaid for access to Jenkins' property. Sufficient evidence was presented to show that the alley remained open and had been continuously traveled for a number of years, not only by Jenkins, but also by the public at large. This Court stated:

An individual may acquire an easement of way by adverse user though at the same time the public uses the way. It is therefore not necessary for the use of the alley by Jenkins 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 Jenkins, under a claim of right, used the alley constantly for the statutory period, improving and keeping it in condition for his use, as testified by him (which testimony is not disputed), 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 formally conveyed in writing.

Id. at 816. Finally, in McCain v. Turnage, 238 Miss. 44, 117 So.2d 454 (1960), McCain was granted a prescriptive easement across Turnage's property along a roadway which originated on land belonging to McCain and crossed land belonging to other persons, including land belonging to Turnage, before it reached a public road.

The evidence showed without dispute that since some point in time anterior to the memory of aged citizens of the community, or more than fifty years ago, there has been a roadway extending from the lands of appellants across lands belonging to persons not parties to this suit, thence across appellees' twenty-acre tract to the Summit public road. The road, the right to whose use across appellees' land is the subject of this case, has been used by appellants and their predecessors in title, and by other persons and members of the public who had business in the neighborhood, openly, visibly, continuously, and without permission of appellees or their predecessors in title, and without molestation, for more than fifty years. Aged inhabitants of the community do not remember when the road was first used or the circumstances surrounding its original use. Although it has at times been graded by the county authorities, and the public has to some extent used it, the road was not shown to be a public road. It has remained in substantially the same location.

Id. at 454-55.

¶ 10. Even if the...