Opinion
No. 39959.
March 19, 1956.
1. Highways — evidence insufficient to establish claim of public highway across adjoining lands — by virtue of deeds from common grantor.
In suit by landowner claiming right to go across adjoining land of defendant to a public road by virtue of the existence of a public highway, where evidence showed that claimed public highway had been abandoned some 25 years before deeds were executed by the common grantor of the parties declaring that the deeds were subject to public roads as now laid out, maintained or used over the lands, complainant was not entitled to claim a public highway across the lands of defendant by virtue of the deeds from the common grantor.
2. Easements — by implication and necessity — evidence — proffered way practical — reasonable.
Where Chancellor found that landowner as dominant tenant was entitled to easement by implication and necessity over adjoining lands, and further found that servient tenant was under duty to select a reasonable and fair route across his land and tender it to the dominant tenant for acceptance or rejection and the servient tenant did select and tender a roadway and Chancellor found that the tendered way was fair and practical and reasonable to all the parties, decree of Chancellor would be sustained.
Headnotes as approved by Roberds, P.J.
APPEAL from the Chancery Court of Pearl River County; LUTHER A. SMITH, Chancellor.
Morse Morse, Poplarville, for appellant.
I. The finding of the Chancellor to the effect that the road in question was no part of the old Public Road was clearly erroneous and against the uncontradicted testimony of the complainant's witnesses.
II. Where a road in use over a servient estate is clearly visible and is in use at the time of the conveyance, the Courts will grant to the purchaser of the dominant estate an easement by implication. Quin v. Sabine, 183 Miss. 375, 183 So. 701; Pleas v. Thomas, 75 Miss. 495, 22 So.2d 822; Glover v. Falls, 120 Miss. 201, 82 So. 4; Liquid Carbonic Co. v. Wallace, 219 Pa. 457, 68 A. 1051; Vol. VI, Thompson on Real Property, Sec. 3417 p. 631; Tiffany on Real Property (Abridged ed. 1940), Sec. 540 p. 543.
H.H. Parker, Poplarville, for appellee.
I. A right-of-way, or road, to be determined in any case in a general easement, or implied easement, is to be determined, not by the sole interest of the owner of the dominant estate, or by the owner of the servient estate, but by the reasonable convenience of both. Anno. 68 A.L.R. 529; 9 R.C.L., Sec. 48 p. 71.
II. A right-of-way, or easement resulting from necessity, is based on the presumption of a grant by the original grantor, and is supposed to be the shortest passageway to the nearest public road. Fox v. Paul, 68 A.L.R. 520; Brice v. Randall, 7 Gill J. Md. 349; 17 Am. Jur. 90.
III. The appellant, of course, under all the rules of law, is required to bear the expense of the construction of his right-of-way wherever selected and by whom selected, and especially is the expense incident to the construction of the right-of-way, within the premises of appellant, his expense. Gaines v. Lunsford, 102 Am. St. 109; Korea v. Hiquera, 153 Cal. 451, 17 L.R.A. (N.S.) 1018.
IV. Convenience is not alone sufficient on which to base an implied grant of an easement, there must be a necessity, as necessity is that on which the implied grant is presumed. Dabney v. Child, 95 Miss. 585, 48 So. 897; Bussmeyer v. Jablosky, 145 S.W. 772, 39 L.R.A. (N.S.) 549: Spalding v. Abbott, 55 N.H. 426; Valley Falls v. Dolan, 9 R.I. 489; Ogden v. Gervis, 62 N.Y. 531; Alley v. Carlton, 29 Tex. 78, 94 Am. Dec. 260; Gaines v. Lunsford, supra; Glover v. Falls, 120 Miss. 201, 82 So. 4; 17 Am. Jur. 50.
Warren owns a section and Rawls a half section of land in Pearl River County, Mississippi. The lands adjoin, the west boundary of the Rawls land being the east boundary of the Warren land.
The Poplarville-Ford's Creek public roads run northwesterly and southeasterly across the Warren section. The road is to the west of and does not touch the Rawls land.
Rawls claims that he has the right to go across the Warren land to said public road. He claims that right by virtue of (1) the existence of a public highway extending from the said Poplarville road in a northeasterly direction to about the barn of Rawls situated near the southwest corner of the northwest quarter of the northwest quarter of the Rawls section, and (2) by virtue of a provision in the deeds to Warren and himself, and (3) by implication, or necessity.
The chancellor found (a) that the claimed public road had been abandoned by the county about the year 1921, and that, therefore, no public road existed of which Rawls could avail himself in going across the Warren land to the Poplarville Road, and (b) that Rawls had a private passage easement across the Warren lands, but that this was not by virtue of the provisions in the deeds and, therefore, the right did not attach to any particular way or route, but that it was a private easement by implication and necessity. He further found and adjudicated that Warren, being the servient tenant, was under duty to select a reasonable and fair route across his land and tender that to Rawls for his acceptance or rejection, and, if accepted, that the expense and cost of constructing and maintaining the way would be upon Rawls.
In compliance with that decree Warren did select and tender a roadway to Rawls. Rawls rejected the tendered way. The chancellor found that the tendered way was fair and practicable and reasonable to all parties and approved it. Rawls appeals here from the foregoing actions of the chancery court.
(Hn 1) He says, first, the chancellor was in error in finding that the road he claims was a public road, affording him an outlet to the Poplarville road, had been abandoned as such about the year 1921. The evidence is ample to sustain the finding of the chancellor on that question, but we do not detail it pro and con, for the reason that Rawls, testifying on the stand, admitted the claimed road was not a public road, and he did not base his right to travel it on the ground it was a public highway. I.C. Rawls, Sr., when on the stand, was asked if he claimed the road in question to be a public road. He answered "No, sir, its still a public road as far as the records are concerned." "Q. I am not asking you about the records. Are you maintaining the right to use it because it is a public road, or has your claim been based on your rights to use that road as a public road since you bought your property? A. It is not maintained as a public road. Q. Are you maintaining your right to use it as a public road? A. I claim a right to use it because it is the only road leading into my property." He then said he didn't know whether it was a public road or not. He said when he filed his answer he thought it was a public road. This question was then asked him "And now your position is it's because you have to have it to get into your place, a private way of necessity? A. Yes, sir, we have got to have a way to get in there." This is an admission both that the barn-way road was not a public road and that Rawls' claim to a right of way across the Warren land was based upon private necessity.
Rawls claims here that the deeds to himself and Warren vest in Rawls the right to travel what we call the barn-way road. Goodyear Yellow Pine Company was the ultimate grantor in both deeds. They contain this provision: "It is understood and agreed that this contract is made subject to and that any deed given hereunder shall likewise be made subject to any and all public roads as now laid out, maintained or used over said lands." Again, "This conveyance is made subject to any and all public road rights of way over and across said lands * * *." These provisions apply to public roads and public road rights of way. Warren got his deed June 26, 1946, and Rawls got his March 18, 1947. We have already said the proof fully sustained the chancellor in his finding that this barn-road had been abandoned and relinquished as a public highway in 1921.
It had ceased to be a public highway, or a public highway right of way, some twenty-five years before said deeds were executed; besides, as above stated, Rawls, as a witness at the trial, based his right to go across the lands of Warren not upon the barn-way being a public highway but upon his right to a private easement by implication across the Warren lands.
(Hn 2) On the question of the feasibility, fairness and reasonableness of the tendered way, the chancellor not only heard much oral testimony bearing upon that question, which oral testimony fully sustained his findings, but he also personally walked over the premises and inspected the tendered way, the barn-road, and another way an engineer for Rawls had suggested. The parties to this litigation, as well as their counsel, were with him. This examination and inspection was made without objection thereto by any of the parties. No point is raised on this appeal as to that action. We are not confronted with its legality or propriety. The chancellor, after a long and tedious trial and upon evident thorough and mature consideration of all of the testimony, and the facts disclosed to him by his personal inspection, found, in an unusually able opinion, that the tendered way was fair, just and reasonable to all parties, and was the most feasible and reasonable way open to the litigants under the circumstances. We have not discerned, and able counsel for appellants have not suggested to us, any moving reason why we should reverse the chancellor in the actions taken by him.
Affirmed.
Hall, Arrington, Ethridge and Gillespie, JJ., concur.