137 So. 785 | Miss. | 1931
Appellant, by a bill in equity, sought to establish his right to a way of necessity over and across the lands of appellee. The appellee, by his answer, denied that this right had ever existed; but asserted that, had such right ever existed at the time appellant purchased this land, he owned other land adjoining same, which abutted on the public road, and which was accessible to, and used by him in reaching the public road; and as a matter of law, when appellant had his own right of way, appellee's land no longer owed servitude as a servient estate. In other words, that the way of necessity, if existing prior to appellant's purchase, ceased when the necessity therefor ended. The court below held that appellant was not entitled to a way of necessity over appellee's tract of land, and dismissed the bill.
On the facts, the court was warranted in finding that a way of necessity had existed prior to the date of the purchase of both tracts of land by Wright, the fifty-eight-acre tract of land being surrounded by other lands, with no way of egress and ingress save over the eighty-acre tract which had been used by predecessors in title as a way to reach the public road, and thence the market.
Appellee's eighty-acre tract lay north of appellant's *701 fifty-eight acres. At the time appellant purchased this land he owned a twenty-acre strip which adjoined same on the east, and abutted the public road, giving access thereto, which way to the public road had been in use many years. While owning this fifty-eight-acre tract, appellant sold the twenty-acre strip to another.
We construe the briefs of counsel to submit to us for decision the contention that a way of necessity, once established in favor of the owner of a dominant estate over the lands of a servient estate, runs with the land, and is never extinguished.
In this case, the way arises through grant by implication; there being no claim of express grant.
In the case of Bonelli v. Blakemore,
Of course, it is well settled in this jurisdiction that on the sale of a tract of land surrounded in part by the lands of the vendor, and the rest by the lands of a stranger, the purchaser of the interior lands has an implied grant of a way of necessity over and across the lands of his vendor. Pleas v. Thomas,
This court has never held, however, that this right of way of necessity, arising by implied grant, vested title in fee to the lands, but only a right appurtenant to the dominant estate.
Reviewing the cases cited by appellant in support of his contention, we find the case of Zell v. Universalist Society,
In the case of Atlanta Mills v. Mason,
The only case in point cited by counsel is Estep v. Hammons,
In the case at bar Wright, in 1923, became the owner of both estates, and, when he sold to the appellant the fifty-eight-acre tract, the latter then owned lands adjoining this tract which abutted the public road, and over which he had an easement from the fifty-eight-acre tract to the public road.
Under this state of facts, if we concede that the evidence shows that prior to Wright's purchase there was a way of necessity over the eighty-acre tract in favor of the other, the necessity therefor was terminated then and there, and his right thereto ceased. In this view, *703 we are sustained by the great weight of authority, as well as by sound and cogent reason.
We find the rule thus stated in 19 C.J., p. 953, section 171: "While a right of way of necessity continues until some other lawful way has been acquired and ordinarily cannot be extinguished so long as the necessity continues to exist, nevertheless a way of necessity ceases as soon as the necessity to use it ceases. If the owner of a way of necessity acquires other property over which he may pass, or if a public way is laid out which affords access to his premises, or if a new way is established by a judgment in partition, the right to a way of necessity ceases. . . ."
An examination of the notes to the text above demonstrates that the rule stated is consistent with the weight of authority in this country and in England.
The case of Pierce v. Selleck,
Supporting this statement of the law, see, also, Cassin v. Cole,
Affirmed. *704