Wills v. Reed

• Decision Date: 17 July 1905
• Citation: 38 So. 793,86 Miss. 446
• Court: Mississippi Supreme Court
• Parties: EDWARD WILLS ET AL. v. CONSTANTINE H. REED

38 So. 793

86 Miss. 446

EDWARD WILLS ET AL. v. CONSTANTINE H. REED

Supreme Court of Mississippi

July 17, 1905

FROM the chancery court of Benton county, HON. JULIAN C. WILSON Chancellor.

Reed the appellee, was complainant, and Wills and others, the appellants, were defendants in the court below. From a decree in complainant's favor the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Decree reversed and cause remanded.

Smith &amp Totten, and Alexander & Alexander, for appellants.

Before considering the evidence it is of vital importance to get clearly before us the distinction between a public road and a private right of way; for in the mode by which they are acquired and the manner of and extent of the right to use them, they are widely different. The proof necessary to establish a dedication for a public highway is very different from that required to establish in favor of a single person a right of way. When we have gotten clearly before us the law applicable to this case, it will be made very clear how far short the evidence falls of establishing complainant's bill.See Ency. Law, 1122; Ency. Law, 1210; Ency. Law, 1200.

If the way was a public highway, a private right of way in it could not be acquired by prescription. It cannot be both. If it is a public road, there is no place for a discussion of private rights. 14 Cyc., 1155, 1157, 1156, 1155; 22 Ency. Law, 1198.

The evidence in this case wholly fails to show that the Pott's Mill road was a public highway. There was never any dedication to the public. There was not an acceptance by the public. The public never recognized any obligation to work the road. There is no proof that a single person ever used it unless he was going on business with the mill. A permissive use of an easement cannot become adverse without positive notice to the owner of the servient estate.

Mayes &amp Longstreet, and McDonald & Gresham, for appellee.

The appellee in the court below showed the existence of this right on his part, and showed it from three different sources, any one of which is good:

First--He showed the existence of the right not only in himself, but in all the neighborhood adjacent, by prescription and dedication, by common user for a half a century past; he showed

Secondly--The existence of the road as a way of necessity, arising by law out of the conditions existing when he bought. the lands from Mr. J. H. Watson, his vendor, who at that time owned the lands roundabout.

Thirdly--He showed the existence of the right of way by express contract and assent of the said Watson, which, although not recorded, was made good against Watson's subsequent vendees by actual notice to them of the existence of this right.

OPINION

TRULY, J.

The bill of complaint herein was filed by appellee, seeking to require appellants to remove all obstructions from, and to reopen, a certain road, denominated in the record a "neighborhood road." The diagram in the record shows that the road in question, traversing certain lands owned by appellants and also lands of the appellee, serves to connect two public roads, and ends at a public road at a point on the railroad called "Reid's Switch." The proof shows that originally this neighborhood road was opened by the owner of all the lands which it traversed for the purpose of enabling his patrons and the public generally to reach his mill, known as "Pott's Mill." This was many years ago--long prior to the construction of the railroad to which the road now runs. Afterwards, when the mill fell into disuse, the use of the road was continued by all those whose business rendered it convenient or necessary though chiefly made use of by timbermen and cross-tie contractors, who would haul over it to the railroad. Slight changes in the route were made, such as the condition of the road, owing to the hills, the creeks, or the character of the land, made imperative, with occasional repairs which were demanded to render the way passable. In 1889 James H. Watson owned the lands, then consisting entirely of uninclosed woodland, on which that part of the road involved in this controversy ran. In 1889 the said Watson agreed to convey to appellee the southern portion of the lands in question, and executed a bond for title, in which it was recited that the said Watson agreed to "give said Reed a right of way over our other land from said quarter to the railroad." This bond for title was not placed of record for many years, and the deed which was, in the year 1898, executed in pursuance of its conditions contained no grant of any right of way. Subsequent to the execution of the bond for title, but before its recording and before the deed to Reed was executed, Watson sold the other part of the land (the land over which the bond for title to Reed agreed to give a right of way) to the vendors of appellants. The record shows that these appellants were not advised of any claim to a right of way which Reed might have against Watson, and were in ignorance of the recitation in reference thereto in his bond for title. The chancellor, after hearing a great mass of testimony, granted the relief prayed for, and awarded appellee certain damages against one of the appellants. From that decree this appeal is prosecuted.

In a case decided since the filing of the briefs in this case--Burnley v. Mullins, ante 441 (s.c 38 So. 635)-we had occasion to express our conclusions upon a state of facts strikingly similar to the case here presented in several of its phases. In view of the contention that, by reason alone of the great lapse of time during which this neighborhood road has been used, the public had thereby acquired certain rights by prescription, we refer especially to the opinion in that case as conclusive against the position of appellee on that point. In the instant case, as in the Burnley case, there was no assertion of any claim by the public of any hostile right to the way in question. The road was never under the supervision of the board of supervisors or county road authorities, was never worked by a road overseer, nor were the bridges or causeways on the same built at public expense. As applicable to the facts of this case, and controlling the decision on this point, we quote from the opinion in the Burnley case as follows: "There is nothing in the record to show that this limited, though long-continued, use of the road by a portion of the public had been 'under color of right;' nor does it appear that the privilege of passage...