Burnley v. Mullins

Truly, J., delivered the opinion of the court. It is impossible to extricate the case for appellee from the rule announced by this court in Warren County v. Mastronardi, 76 Miss., 276 (24 South. Rep., 199). In truth, the case made by appellee is not so strong as that presented by the Mastronardi case. In the case at bar it appears that for many years there has been a “neighborhood road” running at or near the place where the road in question now runs. It is also evident from the record that this way has been used by that portion of the public living accessible thereto whenever occasion demanded. It is undisputed that the road has been several times and at' various places along its route changed according to the wish or convenience of the property owner whose land it traversed without order or permission from the board of supervisors of the county. It is not seriously contended that the road is a public road in the sense that it is one over which the board of supervisors has at apy time exercised jurisdiction or to which it has officially asserted any claim. It has never been worked by road hands or under the supervision of a road overseer, though occasionally repaired by the neighbors whose convenience made it necessary that the road be maintained. There is nothing in the record to show that this limited, though long-continued, use of the road by a portion of the public has been “under color of right;” nor does it appear that the privilege of passage exercised by those using the road was “such as to expose the party asserting such right of way to an action if he wrongfully exercised such right.” And under the Mastro-nardi case these two elements must coexist with the continued use of the way in order for such use to “ripen into title by prescription.” Therefore, even if it be conceded that “anything less than the assertion of a claim by the board of supervisors could constitute color of right,” it is evident that, in the absence of the two necessary elements of adverse claim mentioned, the use, no matter how public nor how long continued, [445] could never ripen into an absolute and adverse right. So far as the public is concerned, there was never, in any proper legal sense, the assertion of any hostile right, but simply the enjoyment of a mere permissive right of passage. Being permissive, the property owner whose land was traversed by the way had the power at any time to withdraw his consent and close the road. It must be noted in this connection that we are not dealing exclusively with a personal easement, such as may, under certain circumstances, be acquired by prescription. Our remarks are intended to apply only to the case, made by this record, and we decide only that under the facts of the record no sufficient title has been shown in the public either by official assertion of claim, by order or action of board of supervisors, by adverse possession or prescription, to prevent the appellants from lawfully closing the private road. Hence it follows that instruction Ho. 1, granted for the appellee, was erroneous, because there was no competent evidence on which to base it. There was no proof that the use of the road by those who traveled it “had been under claim of right to use it,” and no evidence that the way, prior to its closing by appellants, was “not used by permission of the owner of the land.” And without proof to the satisfaction of the jury of the existence of both these constituent elements of hostile assertion of right of passage, mere continued use was not sufficient to sustain a verdict for appellee. Under the facts here presented, appellee committed a trespass in tearing down the fences erected by appellants. On the case made, appellants were at least entitled to recover actual damages. Reversed and remanded: