86 Miss. 441 | Miss. | 1905
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,
Reversed and remanded: