Patterson v. Harris, 41624

• Decision Date: 19 December 1960
• Docket Number: No. 41624,41624
• Parties: Louis L. PATTERSON, Jr., Thomas Patterson, Garner Lester and H. H. Harlow, v. Edward HARRIS.
• Court: Mississippi Supreme Court

Page 545

125 So.2d 545

239 Miss. 774

Louis L. PATTERSON, Jr., Thomas Patterson, Garner Lester and H. H. Harlow, v. Edward HARRIS.

No. 41624 Supreme Court of Mississippi.

Dec. 19, 1960.

Wells, Thomas & Wells, Charles Clark, Lipscomb & Barksdale, Jackson, for appellant.

Jack M. Greaves, Canton, for appellee.

KYLE, Justice.

This case is before us on appeal by Louis L. Patterson, Jr., and others from a decree of the Chancery Court of Madison County enjoining the appellants and each of them from interfering with the appellee's use of an easement for roadway purposes claimed by the appellee across the appellants' lands situated in Madison County.

The amended bill of complaint in this cause was filed by Edward Harris, as complainant, on September 29, 1959, against Louis L. Patterson, Jr., Thomas A. Patterson, Garner Lester and H. H. Harlow, as defendants, seeking to establish the complainant's right to a permanent easement of passage or roadway over and across lands owned by the said Louis L. Patterson, Jr., and Thomas A. Patterson, as devisees under the will of Mrs. Elizabeth Atkinson Miller, deceased, and described as the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4 of Section 22, Township 7, Range 1 East, in Madison County, which said lands were in the possession of the said Garner Lester as lessee, and seeking a mandatory injunction commanding the defendants to cease and desist from locking the gate on said roadway and interfering with the complainant's use of said roadway as a means of ingress and egress into and from a 40-acre tract of land lying immediately north of the defendants' lands and described as the SE 1/4 of the NE 1/4 of said Section 22, which said 40-acre tract of land was owned by the complainant's father, Andrew Harris, at the time of his death in 1956.

The complainant alleged in his bill of complaint that he was a part owner of the said SE 1/4 of the NE 1/4 of said Section 22, as one of the heirs of the said Andrew Harris, deceased, and that he was in possession of said land and was using the same for the grazing of cattle; that there was a roadway leading from the complainant's land southwardly through the said NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4 of said Section 22 to a public road; that said roadway had been in constant use by the complainant and his predecessors in title for a period of fifty years; and that complainant had acquired a permanent right of passage over said roadway to and from his land in said SE 1/4 of said NE 1/4 of said Section 22. The complainant further alleged that said roadway was essential to his continued occupancy and use of his said 40-acre tract, as a means of ingress and egress to and from said land, and the only way available for him to reach the public highway; that the said Louis L. Patterson, Jr., and Thomas A. Patterson, present owners of the lands through which said roadway ran, and the said Garner Lester, lessee, and his manager, the said H. H. Harlow, had placed a lock on the gate at the entrance into said roadway and had refused to allow the complainant to use said roadway and had served notice on the complainant not to cross over the lands owned by the said Louis L. Patterson, Jr., and the said Thomas A. Patterson, which were under lease to the said Garner Lester. The complainant alleged that he had acquired a permanent easement or right of passage over said land by constant use of said roadway for a period of more than ten years, and that he was entitled to have issued an injunction against the defendants as prayed for in said bill of complaint.

The defendants in their answer denied that there was a roadway leading from the Andrew Harris 40-acre tract southwardly through and across the lands leased to Garner Lester; and the defendants denied that the alleged roadway had been in constant use by the complainant and his predecessors in title for a period of fifty years. The defendants denied that the complainant was entitled to a right of passage over the defendants' land, or to have a permanent injunction issued as prayed for in the bill of complaint. The defendants admitted that the complainant's father, Andrew Harris, and the complainant had used the former roadway running southwardly across the Miller Estate land in the SE 1/4 of said Section 22 during the lifetime of Mrs. Elizabeth Atkinson Miller; but the defendants averred that such use as was made of said roadway by the said Andrew Harris and the complainant during the lifetime of the said Mrs. Elizabeth Atkinson Miller was made with the permission of the owner of said land, and that such permission had been lawfully revoked. The defendants further averred in their answer that the said Andrew Harris had acquired title to the said SE 1/4 of the NE 1/4 of said Section 22 by warranty deed from one William Rouser, who owned other lands lying north of the Miller Estate land and adjoining the said 40-acre tract and who was legally obligated to furnish the complainant with means of ingress and egress into and from said 40-acre tract, and that there was a road leading from the complainant's land over and across the lands owned by the said William Rouser to a public highway, which would have afforded adequate passageway for the complainant had he desired to use it.

There is no substantial conflict in the testimony of the witnesses in the case. The testimony shows that Mrs. Elizabeth Atkinson Miller was the owner of the land through which the alleged roadway runs during her lifetime and at the time of her death in December 1958; and that the defendants Louis L. Patterson, Jr., and Thomas A. Patterson acquired title to said land, along with other lands, as devisees under her last will and testament; that the defendant Garner Lester had been in possession of said lands for a period of several years as lessee; and that said lands were being used for the pasturage of a large number of cattle. The testimony shows that Andrew Harris purchased the above mentioned 40-acre tract of land adjoining the Miller Estate lands in 1927 or 1928 from William Rouser, who at that time owned other lands lying immediately north of the lands owned by Mrs. Miller; that Andrew was a tenant on the Miller land at the time he purchased said 40-acre tract; that he built a house on the 40-acre tract in the year 1929 and moved his family into the house soon thereafter; and that Andrew and other members of his family made use of a passageway through the Miller woods and the farm roadway running southwardly across the open land as an outlet to the public highway until Andrew's death in 1956.

The complainant, Edward Harris, testified that he had been in possession of the 40-acre tract of land since the death of his father; that he was grazing cattle on the land; and that no part of the land was being cultivated. Edward testified that his father and other members of the family had used the roadway running southwardly from the Harris 40-acre tract to the public highway since his father built the house on the 40-acre tract in 1929; that no one gave them permission to use the roadway, but Mrs. Miller knew that they were crossing over her land and she never objected; that no one ever told them not to cross the Miller land until after Mrs. Miller's death, when Mr. Patterson wrote a letter to Mr. Otto Thompson, who held a lease on 173 1/2 acres of the Miller Estate lands, instructing him not to permit Edward to cross over the land. Edward stated that the roadway which the Harris family used ran southwardly over that part of the Miller Estate land which Mrs. Miller had leased to Mr. Lester; that after Mr. Lester placed a lock on the gate, sometime during the year 1958, Mr. Lester's manager gave him a key to the lock on the gate, but later demanded that the key be returned to him; and that for a short time thereafter he used a roadway along the west side of the land which had been leased to Mr. Thompson. Edward stated that it was only after Mr. Thompson had notified him that he would no longer be permitted to cross over the Miller Estate land that he filed his bill of complaint seeking to establish his right of passage over the land described in the bill of complaint. Edward stated that there was no passable roadway leading from his property through the William Rouser property to a public road. On cross-examination however, Edward admitted that Lee Sammy Jones lived in a house on the 40 acres of the William Rouser land lying north of the Harris 40-acre tract, and that Lee Sammy Jones and other tenants who lived on the Rouser land had outlets over farm roads to a public road running northwardly by Ridley Hill. But Edward stated that the road through the Rouser land was not an improved road, and that it was more convenient for him to cross over the Miller Estate land that it would be to cross over the Rouser land.

George Harris, a brother of Andrew Harris, testified that he had rented land from Mrs. Miller for a period of many years; that his brothers, Joel and Andrew Harris, both lived on the Miller place at one time and paid rent to Mrs. Miller; that Andrew was living on the Miller place when he bought the 40-acre tract from William Rouser; that he and other members of the Harris family used the roadway running northwardly through the Miller land to Andrew's house--just anybody going to Andrew's house used the road; and that Mrs. Miller never objected to anybody going through there. George stated they could always travel the old road through the woods. Willis Murrell testified that he had been a tenant on Mrs. Miller's place for a long time; that he used the road himself, and no one had ever given him permission to use the road. On cross-examination Willis admitted that there was a road leading out north from Lee Sammy Jones' house on the Rouser land, but he stated that it was pretty rugged through there.

Garner Lester, who was called to testify as a witness on behalf of the defendants, testified that he had...