Myers v. Blair

• Decision Date: 31 December 1992
• Docket Number: No. 89-CA-0896,89-CA-0896
• Citation: 611 So.2d 969
• Parties: Billy Ray MYERS v. George E. BLAIR, Wayne Mullins as a Member of the Board of Supervisors of Lawrence County, MS and the Board of Supervisors of Lawrence County, MS.
• Court: Mississippi Supreme Court

Page 969

611 So.2d 969

Billy Ray MYERS v. George E. BLAIR, Wayne Mullins as a Member of the Board of Supervisors of Lawrence County, MS and the Board of Supervisors of Lawrence County, MS.

No. 89-CA-0896.

Supreme Court of Mississippi.

Dec. 31, 1992.

Vaughn Davis, Davis & Rogers, Jackson, Paul E. Rogers, Davis & Rogers, Jackson, for appellant.

Francis M. Vining, Monticello, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

This is an appeal from final judgment of the Chancery Court of Lawrence County, J.W. Walker, Chancellor, presiding, which ruled that Lawrence County acquired a public road across private property by prescription. ¹ Within the appropriate limits of our scope of review, we conclude Chancellor Walker erred and reverse and render judgment confirming the title of Billy Ray Myers to the road and removing the cloud of the claims of public and private road easements.

I.

In 1980, Billy Ray Myers acquired the undivided ownership of an 8.66 acre tract of land in the Grange community of Lawrence County, Mississippi. His mother and father lived on the land from 1909 until 1967, the year of his father's death. There was a road crossing the property approximately 335 feet in length with a varying width not wider than 12 feet at its widest point. "The Road" (for reference) is not shown to be a public road by any documentary evidence introduced at trial. The Chancellor concluded it public on the following reasoning: "[T]hat the easement in favor of Lawrence County was acquired by prescription through adverse use, continuously, for a period of more than ten years, by maintenance of said road at public expense, and by unrestricted use by the general public, without objection by the plaintiff or his predecessors in title." The families that had, at one time, used the road had long since moved from the land and the house had been torn down. "The Road" was used only occasionally by a hunting club. Myers discussed putting up a fence and a gate and giving the three adjoining landowners keys for access, however, this was never done. In 1986, following the sale of a one acre house site to Randall A. Barnett and wife, Velda D. Barnett, Supervisor Wayne Mullins directed county employees, equipment and materials to grade, widen and gravel "The Road." Mullins thought the road was public and acknowledged that he directed the work in order to accommodate the Barnetts who were building a house. News that a "highway" had been put across his land reached Myers at his home in Jackson. His investigation revealed that some of his trees had been cut, others pushed up, and that the road had been constructed much wider than it had ever been in the past. Myers learned, for the first time, that Mullins thought the road was public. The local water district had begun placing a water line down the road but stopped and relocated the water line when it determined there was no public record declaring the road public. Myers sought counsel and filed this suit claiming the recent county road maintenance was a cloud on his title and alleged that the county, George Blair and the Barnetts were trespassing when they used the road. Only Lawrence County and George Blair defended. Following a piecemeal trial, Chancellor Walker concluded the road was public by a final judgment entered just before his term as Chancellor ended. However, the record supports the Chancellor's conclusion that Myers failed to prove damages.

The testimony of the former and present supervisors and their employees was in conflict. Some concluded the road private; others stated it was public. Little, if any, maintenance was done by the county on the road prior to 1986. Roy May, district supervisor for the twenty year period between 1964 and 1984, testified the road was private and its use by others outside the Myers family was by permission. There is no documentary evidence to show that "The Road" is a public road. Without contradiction, "The Road" was never used by the county school bus to pick up school children nor was it used by mail carriers to deliver the mail. Users went to the state aid road for the bus and their mail. Only the newly built Barnett house was on the road at the time of the trial. Supervisor May testified that he refused to maintain the road or supply gravel to fill the mud hole at the road's entrance based upon an Attorney General's opinion: "They [Attorney General] told me that a road had to go from and to some other road, connected. If it went to a man's property down there that was a private drive. It [the road] didn't meet the qualifications for a public road.... It went only to that old house place." May further testified that he assumed a prior supervisor built cattle gaps at the Myers' property line on the road and worked the road some. On cross-examination, May acknowledged while a supervisor he put two loads of gravel on the private road. May stated that he kept a written ledger which showed where county employees worked in his district and that it contained no entry showing work on "The Road."

The county tax appraiser and mapper concluded that the county tax appraisal map showed the road in "dashed lines" indicating it was either an "abandoned road, field road or driveway."

Present Supervisor Wayne Mullins took office in 1984 but had worked for Supervisor May before then. He testified that he worked the road as an employee before he became supervisor. He concluded the road was public and admitted directing the 1986 work on the road when the Barnetts started building their house.

II.

Our scope of review of a chancellor's findings of fact is "that the findings of fact as there determined shall not be reversed unless clearly shown to be erroneous. It has therefore been the uniform rule that the [c]hancellor's findings on the facts is reviewable on appeal only when manifestly wrong." Griffith, Mississippi Chancery Practice, Sec. 674 (2nd ed. 1950). The rationale for this rule is based upon the firsthand knowledge the chancellor acquired from seeing the witnesses and hearing their sworn testimony. It is argued that the chancellor is thus better qualified to arrive at correct factual findings and conclusions than an appellate court reviewing only a dry record of the proceedings. Id. at Sec. 674. However, "when presented with what is essentially a question of law, the familiar manifest error/substantial evidence rules have no application to the appellate review of such questions. The principle of 'manifest error' applies only to a factual situation. This rule does not apply on questions of law. With regard to a pure question of law, the Supreme Court shall conduct a de novo review." Warner, Warner's Griffith Mississippi Chancery Practice, Sec. 674 (1991).

III.

The county claims the road public by prescription and, therefore, has the burden of proving, as does an individual claimant, that the use is:

(1) open, notorious and visible;

(2) hostile;

(3) under claim of ownership;

(4) exclusive;

(5) peaceful; and

(6) continuous and uninterrupted for ten years.

Dethlefs v. Beau Maison Development Corporation, 511 So.2d 112 (Miss.1987); Roy v. Kayser, 501 So.2d 1110, 1111 (Miss.1987); Miss.Code Ann. Sec. 15-1-13 (1972). However, use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking. Since "The Road" is not shown to be a dedicated public road under the statutes and therefore under the supervision and control of the Board of Supervisors, "the road must be habitually used by the public in general for a period of ten years; and such use must be accompanied by evidence, other than mere travel thereon, of a claim by the public of the right so to do." Brooks v. Sanders, 243 Miss. 46, 137 So.2d 174, 175 (Miss.1962). "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." McIntyre v. Harvey, 158 Miss. 16, 128 So. 572, 573 (1930). The early decision of this Court in Gulf & S.I.R. Co. v....