Ervin King v. Sam Gale
2015 Miss. App. LEXIS 333
Miss. Ct. App.2015Background
- King owns a landlocked parcel in Kemper County since 1974; access routes include Jerusalem Church Road, a parking lot/driveway of Jerusalem Baptist Church, Sam Gale’s fenced property, and neighbor Follett’s land.
- King sometimes crossed Gale’s land (often with Gale’s permission) or parked at the church and walked over Gale’s property; he also used Follett’s land on occasion (e.g., timber removal).
- After a 2004 falling-out with Gale, King ceased using Gale’s property and thereafter accessed his land via Follett’s property.
- King sued (2006) to establish a boundary line and obtain either a prescriptive easement or an easement by necessity across Gale’s and the church’s land; trial occurred in 2012.
- The chancellor (1) excluded certain survey documents and dismissed the boundary-line and easement-by-necessity claims as merit-based dismissals, and (2) after full trial denied King’s prescriptive-easement claim for failing to prove the required elements by clear and convincing evidence.
- On appeal the court affirmed: King’s use was found permissive (so not adverse/hostile), no proof of necessity or common prior ownership for the church tract, and the chancellor’s evidentiary rulings and credibility determinations were not reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 20‑year‑old survey sketch/plat | Purvis could authenticate predecessor’s sketch as business record and as basis for his plat | Gale/church objected to hearsay and weight since Purvis relied on predecessor’s work | Court: no hearsay problem under business‑records concept but chancellor reasonably found sketch/plat lacked weight to establish boundary; exclusion not reversible |
| Prescriptive easement across Gale’s property | King claimed long use of a road/path to reach his parcel met six prescriptive elements (clear & convincing) | Gale argued use was permissive (King admitted asking permission), intermittent, and not exclusive or continuous | Court: Denied — King failed to show hostile/non‑permissive use or maintenance/claim of ownership; no prescriptive easement |
| Prescriptive easement across church parking/drive | King asserted regular driving/parking supported prescriptive claim | Church showed King used lot only sporadically and with implied welcome from deacon; not hostile or exclusive | Court: Denied — intermittent, permissive use insufficient for prescriptive easement |
| Easement by necessity (Gale and church) | King contended access across those tracts was necessary to reach public road | Defendants showed alternative access routes existed (use of Follett), and King failed to prove prior common ownership for church tract | Court: Denied — King did not prove necessity for Gale; failed initial common‑ownership proof for church; dismissal on the merits affirmed (preclusive) |
Key Cases Cited
- Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150 (Miss. 1992) (elements and clear‑and‑convincing standard for prescriptive easement)
- Patterson v. Harris, 125 So.2d 545 (Miss. 1960) (use by permission cannot ripen into prescriptive easement)
- Delancey v. Mallette, 912 So.2d 483 (Miss. Ct. App. 2005) (easement by necessity/implied easement elements; necessity and common ownership requirement)
- Dieck v. Landry, 796 So.2d 1004 (Miss. 2001) (need to show previously joined/common tract for easement by necessity)
- Rawls v. Blakeney, 831 So.2d 1205 (Miss. Ct. App. 2002) (maintaining a road can support claim‑of‑ownership element for prescriptive easement)
- Dillon v. Greenbriar Digging Serv., Ltd., 919 So.2d 172 (Miss. Ct. App. 2005) (business‑records exception may allow admission of predecessor’s report under certain circumstances)
- Fratesi v. City of Indianola, 972 So.2d 38 (Miss. Ct. App. 2008) (scope of prescriptive easement limited to the adverse use proved)
- Terrain Enterprises, Inc. v. Mockbee, 654 So.2d 1122 (Miss. 1995) (trial court’s broad discretion on evidentiary rulings; reversal requires prejudice)