Rawls v. Blakeney, No. 2001-CA-01027-COA.

• Decision Date: 03 December 2002
• Docket Number: No. 2001-CA-01027-COA.
• Citation: 831 So.2d 1205
• Parties: Billie Ruth Blakeney RAWLS and Husband, Dewayne Rawls, Appellants, v. Dora Faye H. BLAKENEY and Joe Peale Blakeney, Appellees.
• Court: Mississippi Court of Appeals

831 So.2d 1205

Billie Ruth Blakeney RAWLS and Husband, Dewayne Rawls, Appellants, v. Dora Faye H. BLAKENEY and Joe Peale Blakeney, Appellees.

No. 2001-CA-01027-COA.

Court of Appeals of Mississippi.

December 3, 2002.

Eugene Coursey Tullos, Mark K. Tullos, Raleigh, for Appellants.

David Garner, Batesville, Attorney for Appellees.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

BRANTLEY, J., for the Court.

¶ 1. Ruth Blakeney Rawls and Dewayne Rawls (Rawlses) appeal from an order of the Smith County Chancery Court granting a prescriptive easement in a road partially traversing across their property to Dora Faye H. Blakeney and Joe Peale Blakeney (Blakeneys). The Rawlses assert the following assignment of error:

I. WHETHER THE CHANCELLOR ERRED IN GRANTING A PRESCRIPTIVE EASEMENT TO THE BLAKENEYS FOR THE PURPOSE OF INGRESS AND EGRESS UNTO THEIR PROPERTY.

Finding no error in the proceeding below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Blakeneys own an eighty acre parcel of land in Smith County, Mississippi which is accessed by an east to west road from Highway 37. From Highway 37 to the Blakeneys's property, this road runs over and across two adjacent parcels of property belonging to the Rawlses on the north side and Larry J. Loftin and Paula C. Loftin (Loftins) on the south side. Use of this road by the Blakeneys to access their property serves as the basis for the underlying conflict in this appeal.

¶ 3. The uncontradicted evidence shows that beginning at least as early as 1947, the road was used as a means of ingress and egress to and from the Blakeney property. The evidence also shows that the road is the only safe and reasonable means available to access the Blakeney property. The Blakeneys use this property for logging and recreational purposes.

¶ 4. The Rawlses purchased the property located on and to the north of the access road in 1994 from Jaunita Armour and later began residing there in 1995. Around this time, the Rawlses objected to the Blakeneys's use of the road. Subsequently, the Blakeneys continued to use the road in question to access their property and on April 24, 1998, they filed a petition for easement by prescription seeking to establish their right to use the access road that ran along and over the property of the Rawlses and the Loftins.

¶ 5. The Rawlses filed an answer to the petition, but no answer or response was filed by the Loftins. The Loftins did not object in any manner to the petition filed by the Blakeneys and on June 10, 1999, a default judgment was entered awarding a prescriptive easement to the Blakeneys for use of the road situated on the land owned by the Loftins.

¶ 6. On January 12, 2000, a hearing was held concerning the use of the road situated on the property owned by the Rawlses. After the hearing, in an order entered on May 30, 2001, the chancellor granted a prescriptive easement to the Blakeneys for use of the road that is situated on the Rawlses's property. In the brief order, the chancellor stated that because the public used the private road, "a prescriptive easement has been established and therefore a prescriptive easement is hereby granted [to the Blakeneys] on said road for the purposes of ingress and egress unto their property."

STANDARD OF REVIEW

¶ 7. This Court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Denson v. George, 642 So.2d 909, 913 (Miss.1994). When substantial evidence exists in the record to support the chancellor's findings of fact, those findings must be affirmed. Id. However, questions of law will be reviewed de novo. Holliman v. Charles L. Cherry & Assoc., Inc., 569 So.2d 1139, 1145 (Miss.1990).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN GRANTING A PRESCRIPTIVE EASEMENT TO THE BLAKENEYS FOR THE PURPOSE OF INGRESS AND EGRESS UNTO THEIR PROPERTY.

¶ 8. In order to establish an easement by prescription, the claimant has the burden of proving that the use of the land is (1) open, notorious and visible; (2) hostile; (3) under a claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Myers v. Blair, 611 So.2d 969, 971 (Miss.1992). In the order, the chancellor did not state any specific findings of fact concerning these six elements. Where the chancellor has made no specific findings, the Mississippi Supreme Court has held that "we will proceed on the assumption that he resolved all such fact issues in favor of the appellee." In Re Estate of Johnson, 735 So.2d 231, 236 (¶ 24) (Miss.1999). Therefore, in the present case, we proceed on the assumption that the chancellor found that the evidence satisfied these required elements of a prescriptive easement in favor of the Blakeneys.

¶ 9. The Rawlses first assert that the chancellor erred because the Blakeneys allegedly failed to prove the following three of the six required elements of a prescriptive easement: (1) hostile, (2) under a claim of ownership, and (3) continuous and uninterrupted for ten years. The Rawlses do not dispute the finding that the other three elements were satisfied; therefore, we will only address the disputed elements. To determine whether these three disputed elements were satisfied, we review the evidence presented to support each in the record before us. We must accept "that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact." Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983). "That there may be other evidence to the contrary is irrelevant." K-Mart Corp. v. Hardy ex rel Hardy, 735 So.2d 975, 987 (¶ 36) (Miss.1999); Johnson,735 So.2d at 236 (¶ 24).

(1) Hostile

¶ 10. In order for this element to be satisfied, the use must have been continuously adverse for a term of ten years. See Gano v. Strickland, 211 Miss. 511, 515-16, 52 So.2d 11,12 (1951). Since the Rawlses purchased the property and objected around 1995, ten years of continuous adverse use has not passed. Although the time limit has not been satisfied during the Rawlses's ownership, according to Rutland v. Stewart, 630 So.2d 996, 999 (Miss. 1994), we may apply the doctrine of tacking to satisfy the prescriptive period of ten years. Rutland allows us to tack the time period from the previous owners in privity of the property in question, Jaunita Armour and, if needed, Mr. Corb, from whom Juanita received title, to the current owner, the Rawlses, if the Blakeneys's continuous use of the road while Armour and, if needed, Corb, owned the property was adverse or without permission. Id. However, tacking the time period of the Rawlses to the previous owners may not need to be applied if the ten year prescriptive period of adverse use had already been satisfied while Armour or Corb owned the property. If the right was acquired while the previous owners held title, then the easement will run with the land and be enforceable against the Rawlses. In Logan v. McGee, the Mississippi Supreme Court held that a prescriptive right to an easement is the equivalent to a deed conveying such right. Logan v. McGee, 320 So.2d 792, 793 (Miss. 1975). If an easement by prescription is equivalent to the conveyance of such right by deed, then it follows that such an easement by prescription will run with the land. Id.

¶ 11. The Rawlses claim that the Blakeneys failed to satisfy the requirement of hostile use for ten years because, prior to their objection around 1995, the Blakeneys had permission to use the road. The Mississippi Supreme Court has held that "use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive, is lacking." Sharp v. White, 749 So.2d 41, 42 (¶ 8) (Miss.1999).

¶ 12. We now look to see whether the record supports the finding that the Blakeneys's use of the road was without permission. Ironically, Mr. Rawls testified that Armour, the previous owner of his property, specifically told him that she did not allow anyone to use the road, particularly the Blakeneys. More importantly, Armour testified that she did not give permission to the Blakeneys to cross her property to access their land. Furthermore, Armour testified that while Mr. Corb owned the land and after, while she owned the land, the Blakeneys accessed their property by crossing her land. In addition, she also testified that while she owned the property, the Blakeneys used the road to access their property because "they had to." Therefore, the record supports that the Blakeneys openly used the road without permission while Armour held title.

¶ 13. Although, we have established that the use by the Blakeneys was adverse while Armour owned the property, our analysis does not end here. We must now look to see whether the prescriptive time period of ten years was satisfied while Armour owned the property or by tacking her time period with the other owners in privity, either Corb or the Rawlses. The record before us is not clear on how long Armour owned the property. There are also no title or...