Clay v. Hava, No. 21870

No. 21870 | Miss. | Oct 15, 1921

Holden, J.,

delivered the opinion of the court.

- This is a suit in chancery by the appellant, Miss Emma A Clay, against Dr. Adrian Hava and another, to remove cloud upon title and to perpetually enjoin Dr. I-Iava from closing by a gate or otherwise, a thirteen-foot passageway used as a road or alley between the land of appellant and appellee. The passageway abuts on, and runs in a southeasterly direction from, lot 89, owned by the appellant, and also borders on the west side of appellee’s land, to Front street, which street runs parallel with the beach of the Gulf of Mexico.

The chancellor decreed, on the hearing, that the said thirteen-foot strip was reserved by deed of the grantors as a passageway for the use of the adjoining landoAvners, and that the appellant should have the use of said passageway, for ingress and egress purposes, from her premises to said Front street, but that the appellant be required to maintain a gate at the point where the passageway intersects her land, and that the appellee, Dr. Hava, should maintain a gate at the southeast end of the said passageway on-Front street. The decree also cancels a certain deed as a cloud upon the right of appellant to use said passageway.

The appellant complains here that the IoAver court erred in not decreeing that the title to the passageAvay Avas Avholly and exclusively in appellant, and that it Avas also error for the court to decree that appellant should maintain a gate in the passageway where it joins her land, and that the appellee, Dr. Hava, maintain a gate at the southeast end. of the passageway where it intersects sects Front street. The right and requirement to maintain the gates Avas decreed by the chancellor bn the ground of prescription or adverse possession by the appellee, Dr. Hava; that is, it seems that the chancellor held that the gate at the southeast end of the passageAvay and the gate at the northAvest end had been established and maintained adversely by Dr. Hava and his predecessors in title for more than ten years, and for that reason had acquired the right to maintain the gates and thus close up the passageway at the two ends mentioned.

After a careful consideration of this record we have come to the conclusion that the chancellor was in error in holding that the right to maintain the gates had been acquired by adverse possession. We have searched the record in vain to find any substantial proof tending to show that the gates were maintained adversely or that they Avere not permissive, or for what continuous length of time they had been established across this passageAvay. In fact, if the record tends to prove anything Avith reference to these essentials of adverse possession, Avhich must appear affirmatively, it indicates that the closing of the passageway by the gates in the years past Avas permissive, therefore no right by prescription or adverse possession was acquired by the appellee, Dr. Hava. And to this extent Ave reserve the decree of the chancellor, and order here that the gate at the southeast end of the passageway on Front street shall be removed, and the appelle perpetually enjoined from erecting any obstacle in the passageway or interfering in any manner Avith . its free and open use by all of the landowners abutting on the passageway, and that the appellant shall not be required to maintain a gate at the northwest end of the passageway where it intersects her land, lot No. 89, but that she may or may not, in her discretion, erect a gate at this point. The decree of the chancellor in all other respects is correct, and is affirmed.

The solution of the trouble by the decree of the chancellor may have been the best to bring about peace between neighbors, and this court ivould not be inclined to disturb the decree, nor question its wisdom, if it were not so plain that to affirm the decision would be. to go contrary to the settled law of property rights.

Reversed in part, and affirmed in part. Judgment here.