BROWDER v. GRAHAM

Ben H. Walley, for appellant.

The testimony in the instant case was that this roadway had been used by complainant and his predecessors in title and others, for a period of forty or more years. This is adequate, under the law, to establish a prescriptive right by adverse possession. Alcorn v. Sadler, 71 Miss. 634, 14 So. 444; Cummins v. Dumas, 147 Miss. 215, 113 So. 332; Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814. "If the owner of a lot under claim of right by adverse user has established title thereto as a part of his estate as abutting property, such right will pass to his vendee with a conveyance of the abutting property." McIntyre v. Harvey, 158 Miss. 16, 128 So. 572. In the present case, the father of complainant, his predecessor in title, owned and occupied this land for more than twenty years. When this land was conveyed to complainant, all rights incident to its enjoyment were conveyed. Therefore, complainant has acquired a right to this easement, through his predecessor in title, by using said easement for a period of more than ten years as required by law. Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Alcorn v. Sadler, supra. It is true that the lands of complainant do not abut that of defendant. However, the roadway in question is an open and an apparent roadway, running from the home of complainant, in a westerly direction, to the church and school, crossing lands of others and of the defendants. The roadway across the lands of others has not been denied or questioned by them. The roadway across the lands of defendant are a necessary and integral part of the roadway to the church and school from the home of complainant, and as such, is a continuous roadway which is apparent and for all intent and purpose does abut the easement owned by complainant in the lands of others.

The law requires the user to be continuous and uninterrupted. Bonelli v. Blakemore, 66 Miss. 136, 5 So. 228; Alcorn v. Sadler, supra; Cummins v. Dumas, supra. In the case of Alcorn v. Sadler, supra, the court was faced with the question of whether Alcorn had acquired an easement in the land of Sadler for the purpose of maintaining a dam, the collected waters from which were backed upon on Sadler's land. The water thus collected was being used for a log-pond and for the operation of a sawmill. Consequently, the water was drained off somewhat from time to time. Counsel for Sadler contended that the "periodic letting-off" of the water was such an interruption as to break the continuity of the user. In answer to this contention the court said: "It is analogous to a right of way, which may be acquired by its use as such, without the necessity for being always on it." Therefore, it appears that "user" required is that use which is necessary and consistent with the purpose for which the use was acquired. The testimony in this case is sufficient to establish "user" consistent with the purpose for which the easement was acquired.

Was there an interruption of the use in the instant case? An interruption in the use must be a physical interruption, a clear act of ownership, or filing of a suit. McIntyre v. Harvey, supra, suggestion of error sustained as to another point in 130 So. 5. The record of this case reflects evidence to the effect that when the Federal Government came into possession of the lands now owned by defendants, some time during the year of 1938 or 1939, they erected a fence around said lands. Also, the records show that a gate was built across this roadway, allowing this complainant, and his predecessor in title, the continued and uninterrupted use of the rights in said land. Beyond this, the records remain absolutely silent as to any acts of interruption on or before February, 1946, when the defendant erected the present barrier or fence across the roadway. Was the erection of a gate across the roadway in question inconsistent with the use of the rights in the easement? In the case of Board of Trustees of University v. Gotten, 119 Miss. 246, 80 So. 522, the University had erected a gate across a road or passageway used and enjoyed by Gotten. Gotten filed his suit to have the gate removed as an interference with his rights acquired in such road or passageway. In that case the court said: "If it appears that the erection of the gates will not interfere with the enjoyment of the easement, it is our opinion that the owner of the servient estate is justified in erecting gates." This language is positive to the effect that the erection of gates by the Federal Government some time during the year of 1938 or 1939 was not inconsistent with the use of this right, therefore, not an interruption such as is required to stop the running of the statute of limitations. McIntyre v. Harvey, supra. To the contrary, in the case at bar, it appears that these gates were erected by the Government in recognition of a right in complainant and in order that he may continue to enjoy that right.

The fact that this roadway was used by others will not serve to defeat the right of complainant in using said roadway. Exclusive use by the owner of the interior lands is not necessary to the application of the law in this case. Quin v. Sabine, 183 Miss. 375, 183 So. 701; University of Mississippi v. Gotten, supra. H.D. Young and E.C. Fishel, for appellees.

Counsel relies upon the holding of this court in the case of Board of Trustees of University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522. This case is not in point. Gotten was an abutting landowner; had sold to the University the lands owned by them; had kept a passageway across that land continuously for his convenience, and there had been a gate for their passage into and out of this right of way. Moreover, this case is distinguished in the authority next cited by appellees.

The facts of this case place it wholly within the case of Armstrong et al. v. Itawamba County, 195 Miss. 802, 16 So.2d 752, and in this case the Board of Trustees of University of Mississippi v. Gotten, supra, was considered and distinguished, and held not in point. In this same case many of the authorities of this State with reference to the acquisition of a road by public user, were considered and are set forth in the opinion. We do not see that we would be of any assistance to the court in reciting those cases. Likewise, in this opinion there is listed the cases showing that a public road can be acquired in only two ways: (1) by a formal act of the proper authority petitioned to speak and act for the public; and (2) that it may be implied from circumstances, such as public user.

It will be noted by the court in reading the record, that appellant's rights to this land cannot be acquired by his ownership of the land, which began in 1942, and if a prescriptive right had attached to the lands of appellant that right certainly was not sold at a tax sale, and he, resting on a tax title acquired in 1942, cannot have acquired a prescriptive right across the lands of appellees. Further, in neither his original or amended bill of complaint has he alleged that this was a public road, and the proof shows it never was, and consequently whatever user of the former trail across appellees' lands was permissive, and the testimony of J.C. Smith, the owner of the lands of appellees for 26 years, shows that that was permissive and that it was merely a lane from his house westward to the public road, and only a trail or passageway occasionally used by the neighbors east of his then residence.