Warren County v. Mastronardi

• Citation: 76 Miss. 273,24 So. 199
• Court: Mississippi Supreme Court
• Decision Date: 12 December 1898
• Parties: WARREN COUNTY ET AL. v. ANDREW MASTRONARDI

24 So. 199

76 Miss. 273

WARREN COUNTY ET AL. v. ANDREW MASTRONARDI

Supreme Court of Mississippi

December 12, 1898

November 1898

FROM the chancery court of Warren county, HON. CLAUDE PINTARD Chancellor.

Mastronardi the appellee, was the complainant in the court below; the appellants were defendants there. The facts are stated in the opinion of the court.

Affirmed.

Booth & Booth and George Anderson for appellants.

An easement can be acquired in only one of three ways--by express grant, by implied grant, or by prescription, which always presupposes a grant to have existed. We claim title in this case by prescription.

In the case of Lanier v. Booth, 50 Miss. 410; cited with approval in Alcorn v. Sadler, 71 Miss. 638, between which and the case at bar, by the way, there is a striking sameness of the facts, this court announces the principle that the same prescriptive user and possession which would confer title to land will also give title to a right of way, or an easement in or over the same. Apply this simple doctrine to the undisputed facts of the case at bar, and appellants' title to the roadway in controversy would seem to be incontestable.

Mr. Washburn, in his book on easements (4th ed.), p. 199, uses this language: "The use of a way by the public for twenty years [ten years here] gives a prescriptive right of a public as well as a similar use does of a private way, and this right, when once established, continues until it is clearly and unmistakably abandoned." Again, "When, however, the public assumes and exercises authority and control over the road, and the owner of the land makes no opposition, and twenty [ten] years elapse, conclusive presumption arises against him in that respect. A public highway is one established by public authority, and kept in order by the public, under the direction of the law, or else it is one used generally by the public for twenty years, and over which the public authorities have exercised control, for the reparation of which they are responsible."

In the case at bar the public have used this road continuously for thirty-one years, during which period the board of supervisors have worked and kept it in repair through their overseers, and for fifteen or twenty years prior to its obstruction by appellee, the present road overseer, had performed that duty, as will be seen from his evidence. Stewart v. Frink, 94 N.C. 487 (55 A. R., 618); Lanier v. Booth, supra.

The reporter finds no brief for appellee on file.

OPINION

TERRAL, J.

The Warrenton and Hawkinson Ferry public road, as originally laid out, is located on the dividing line between the land now owned by Mastronardi, and the land of the adjacent proprietor. In 1863, and prior thereto, the lands now owned by appellee belonged to Cameron, and were inclosed by a fence running along and next to said highway. Cameron's fence was destroyed, and the fence along said road and inclosing said land was not rebuilt until some time after August, 1894, when it was acquired by Mastronardi. Commencing with the year 1863, the old road, then used before the regular public, highway, has been abandoned for seven or eight hundred yards of its course, and the traveling public have been accustomed, on account of the roughness of the old road, to pass over the...