80 So. 322 | Miss. | 1918
delivered the opinion, of the court.
Without going into the detailed pleadings in this case, suffice it to say that the complainant below,' ap-pellee here, filed his hill of complaint praying that the board of trustees of the university he enjoined from erecting a gate across a certain road leading from his homestead to -a certain public road, which public road afforded the . only means by which complainant could reach his market and the outside world. The board of trustees answered, denying the allegations of the bill of complaint and making their answer a cross-bill; prayed that the complainant be enjoined from interfering with the erection of the gate across the alleged road. Proof was tallen by both sides, the chancellor reached the conclusion that the complainant was entitled to the relief sought, and enjoined the board of trustees from erecting the aforesaid gate across the roadway, and dismissed the cross-bill. The evidence taken as a whole was, we think, sufficient to warrant the finding that complainant and his predecessors in title had an easement over the land belonging to the university.
It appears that James Stockard was the original owner of the land now owned by the complainant,' and also the owner of the land now owned by the university. The homestead of Mr. Stockard was situated upon the land now owned by complainant. In 1,841 Mr. Stockard conveyed, or attempted to convey, to the university the land over which complainant claims an easement. Prom 1841 and subsequent to this date Mr. Stockard and his successors in title to the Stockard homestead have used the roadway from the homestead to the public road.
It sufficiently appears that the roadway was openly and adversely used as a matter of right, and this easement has never been challenged until the institution of this suit. It also appears that the general public residing in this neighborhood used the road in the same way.
In the instant case the complainant is not claiming as a member of the “indiscriminate public.” The fact that the public did use the roadway does not affect the easement of Gotten.
The chancellor heard all the evidence, and reached the conclusion that Mr. Gotten was entitled to an easement over the servient estate of the university, without regard to the rights of the general public therein, and we do not believe that this court would be justified in overruling the findings of fact by the chancellor. Indeed, there seems to be no doubt that this right of way was established long before the university obtained title to the lands now owned by it; that the land was taken by the university with full knowledge of the established roadway, and the easement was recognized until this litigation was begun.
There is another question yet to answer. Conceding the easement, can we say that the erection and maintenance of the gate across the roadway appreciably interfered with, or unreasonably limited, the enjoyment of the easement?
When this controversy arose the proctor of the university had charge of the erection of the fence inclosing the university land. The proposed fence crossed the roadway over which Mr. Gotten claimed the right to pass. The plans of the proctor contemplated the erection of a gate across the roadway, and this was the
Upon this phase of this case the authorities are not in harmony, but we believe that the facts of each case should control. If it appears that the erection of gates will not unreasonably interfere with the enjoyment of the easement, it is our opinion that the owner of the servient estate is justified in erecting gates. Generally speaking, every owner of lands has a perfect right to fence them, provided, of course, to do so will not appreciably interfere with vested rights of others.
In this case we . hold that the complainant had a vested right of passage, but after a very painstaking investigation and comparison of the authorities, when we apply the law to the facts, we are forced to the. conclusion that Mr. Gotten’s rights were not unreasonably curtailed by the proper erection of the gate. Luster v. Garner, 128 Tenn. 160, 159 S. W. 604, 48 L. R. A. (N. S.) 87, Ann. Gas. 1914D, 769. We quote with approval from the notes to Luster v. Garner (Ann. Cas. 1914D, 769) supra:
“In the case before us there was no evidence that the gate, erected by the defendant was a practical hindrance, nor that it was, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the right of way across the defendant’s uninclosed field. There is some evidence on the part of the plaintiff that it was an inconvenience to open the gate, but his explanation shows that it was only the usual and necessary inconvenience which was caused by descending from his wagon, opening the gate, driving through it, and closing it again. This we think, under all the authorities, cannot be considered in any sense as an unreasonable obstruction nor a hindrance to the free use of the way by the owner of the easement. The court below was there •*256 fore correct in that part of tire charge to the jury •which is complained of; and, as this is the only assignment of error, the judgment is affirmed.”
The notes to Kohler v. Smith, 3 Pa. Super. Ct. 176, meet with our approval, and announce a rule which gives full effect and preserves the rights of the parties to this appeal.
The right to pass was accorded to Mr. Gotten by Mr. Boss, the proctor, and the trivial labor and trouble incident to the opening and closing of the gate did not in any way interfere with a full enjoyment of the easement.
So we think the decree should be modified so as to confirm the right of passage, and to affirm the right of the university to fence and maintain the gate upon the terms proposed by Mr. Boss.
Reversed, and judgment here.
