86 Miss. 446 | Miss. | 1905
delivered the opinion of the court.
The bill of complaint herein was filed by appellee, seeking to require appellants to remove all obstructions from, and to. reopen, a certain road, denominated in the record a “neighborhood road.” The diagram in the record shows that the road in question, traversing certain lands owned by appellants and also lands of the appellee, serves to connect two public roads, and ends at a public road at a point nn the railroad called “Reid’s Switch.” The proof shows that originally this neighborhood road was opened by the owner of all the lands which it traversed for the purpose of enabling his patrons and the public generally to reach his mill, known as “Pott’s Mill.” This was many years ago — long prior to the construction of the railroad to which the road now runs. Afterwards, when the mill fell into disuse, the use of the road was continued by all those whose business rendered it convenient or necessary, though chiefly made use of by timbermen and cross-tie contractors, who would haul over it to-the railroad. Slight changes in the route were made, such as the condition of the road, owing to the hills, the- creeks, or the character of the land, made imperative, with occasional repairs which were demanded to render the way passable. In 1889
. In a case decided since the filing of the briefs in this case—Burnley v. Mullins, ante 441 (s.c., 38 South. Rep., 365)—we had occasion to express our conclusions upon a state of facts strikingly similar to the case here presented in several of its phases. In view of the contention that, by reason alone of the great lapse of time during which this neighborhood road has been used, the public had thereby acquired certain rights by prescription, we refer especially to the opinion in that case as conclusive against the position of appellee on that point. In the instant ease, as in the Burnley case, there was no assertion of any claim by the public of any hostile right to the way in question. The road was never under the supervision of the board of supervisors or county road authorities, was never
Mor does it appear to us that the facts of this record sustain the contention that the appellee has acquired any right of way over the lands of appellants by prescription. It must be borne in mind that his first connection with the lands, so far as this record shows, was in 1889, and at that time, as shown by the stipulation in his bond, he not only did not assert that either he or the public had any right of way over the lands or any right vested by prescription in the neighborhood road, but ex
Again, as already indicated, appellants are purchasers for value without notice, either actual or constructive, of any adverse claim on the part of appellee to any right of way over their lands; and as their deeds were executed and recorded before the deed to appellee, and as Watson, the vendor of appellee, was not at the date of that deed the owner of the lands surrounding those conveyed to Reed, these appellants acquired absolute title to their lands, regardless of the recitals in the Reed bond for title. By no stretch of the rule can there be aj conveyance by implied grant of a way of necessity over the lands of' third persons.
Conceding that the situation is such that Reed has a legal right to demand a passage through the lands of appellants, he can only procure it by proceeding to have a private way established in accordance with the provisions of Code 1892, § 3901. This section, when surrounding conditions justify, permits the establishment of a private right of way over the lands of another “where necessary for ingress and egress.” Upon this point we express no opinion, contenting ourselves with the announcement that the law applicable to the facts of this record does not sustain appellee in his insistence that he is entitled to or has acquired a right of way over the lands of appellants, upon any of the theories presented.
Upon the facts of this record, in view of the previous adjudi
The decree is reversed, and the cause remanded.