66 So. 203 | Miss. | 1914
delivered the opinion of the court.
In September, 1904, the school commissioners of Lamar county located a public school at a point about the center of a tract of land containing one hundred and sixty acres. Afterwards, by deed dated January 19, 1906, duly executed and filed for record, Mr. White conveyed to the' trustees of the school the lot of land, being one acre, upon which the school was located. Three roads, leading to the school, over the tract owned by Mr. White, were with his knowledge and concurrence opened, and have been constantly used since by the -children, teachers, and patrons in going to and from the schoolhouse. The school has been maintained and the roads have been used since September, 1904, the time of the location. The school was at first known as “Little Black School.” In July, 1912, it was consolidated with “Young’s Public
J. J. White, after conveying the lot of land to the school trustees, sold the balance of the tract to E. T. Lawler, who in turn conveyed it to O. C. Elliott, appellee. About the time of the opening of the school in October, 1912, appellee obstructed the roads leading over his land to the school, by placing therein logs, stumps, and debris, 'so that it was impossible for the patrons, teachers, and pupils to travel over them and reach the school. He also posted notices warning the public not to trespass or enter on Ms lands or travel over the roads. The supervisors of the county thereupon filed their bill in chancery, and an injunction was granted requiring the appellee to remove the obstructions placed in the roads, and commanding him to desist from interfering in any manner with the opening, conducting, and maintaining the public school.
Upon a final hearing of the cause on bill, answer, and testimony, the chancellor entered a decree dismissing the bill, dissolving the injunction, and giving judgment in favor of appellee against appellants and the sureties on the injunction bond for two hundred and fifty dollars, fixed as a reasonable solicitor’s fee. From this decree of the chancellor, appellants have prosecuted this appeal. In the final decree the chancellor states his reason for his decision in the following words:
“The court finds that complainants have no easement or right of way to said school lot by virtue of the conveyance from J. J. White to the schooihouse tract.”
It is contended by appellants that, when the land was conveyed to the trustees by Mr. White, the then owner, an easement of right of way- leading over his land to the schooihouse site was implied, because the site conveyed was wholly surrounded by the grantor’s land, and that
Now, it appears that the ways over and across the land and used in going to and from the school were established with the knowledge, permission, and consent of Mr. White, the then owner. It was the right of the owner, when necessity therefor arose, to fix the line of the way of necessity over his land. If he failed to exercise this right, then the school trustees could have located the way. When once defined, and use thereof made with the knowledge and permission of both parties, then both should be hound by the line so fixed. Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154. It appears, however, in this case, that the location as well as (the use of the way was with the knowledge and permission of both the grantor and the grantees.
Appellee had full knowledge of the location and use of the roads when he purchased the land. In his testimony he says that he had been living in a mile of the schoolhouse since it was established; that he knew a free school was maintained there; knew of the location of the roads, and that the people were using them in going to
Appellee contends, and it appears from the argument of his counsel to be the sole contention in support of the chancellor’s decision, that no easement of right of way attended the conveyance to the trustees, that the rule which applies to private owners relative to ways of necessity does not apply to a municipality or a subdivision of the state, and that public authorities having a right of eminent domain should condemn or purchase suitable ways of reaching property in cases like the one now before us. .He relies upon the case of Town of Como v. Pointer, 87 Miss. 712, 40 So. 260. In that case the judge delivering the opinion of the court said that:
“The private right of individuals to demand a way of necessity over lands of other individuals, even if such right exists, confers no right on a municipality to claim such way as a public street.”
The facts in the two cases are very different. The statement of the judge in delivering the opinion in Como v. Pointer will not be applicable to the present case. There is no effort here on the part of the county to secure a public road. The effort in this case is to preserve for the use of the school patrons, teachers, and pupils the private roadways which have become easements as way of necessity. The law touching the subject of such easements is as applicable to a case like the present, where school trustees have purchased a lot surrounded
The chancellor erred in deciding that the trustees had no easement of right of way to the schoolhouse by virtue of the conveyance from J. J. White.
Reversed and remanded.
