BEFORE ROY NOBLE LEE, ANDERSON and PITTMAN
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
A. R. Taylor, Jr., and Mrs. Marjorie P. Taylor, his wife, have appealed from a summary judgment entered against them and in favor of Len Ray Hays and T. D. Lambert in the Chancery Court of Panola County, removing an access easement from lands owned by Hays and Lambert. The appellants raise the following issues:
DID THE LOWER COURT ERR IN DENYING APPELLANTS' MOTION FOR SUMMARY JUDGMENT?
DID THE LOWER COURT ERR IN CHANGING THE LOCATION OF THE EASEMENT, WHICH HAD BEEN IN USE SINCE 1967, WITHOUT THE CONSENT OF BOTH PARTIES?
Prior to April 3, 1967, Mrs. A. G. McDonald owned two
contiguous tracts of land in Panola County, Mississippi. Tract 1 was a small lot, which fronted on Sycamore Street in the Town of Como. Tract 2 was adjacent to Tract 1 and was approximately five (5) times the size of Tract 1. There was no entrance or exit to Tract 2 except over Tract 1. Mrs. McDonald conveyed Tract 2 to the appellants with the understanding that the appellants would have access to and from Tract 2 over a drive along the north edge of Tract 1, leading into Sycamore Street. However, no reference to, or condition of, easement was included in the deed from Mrs. McDonald to appellants.
Subsequently, Mrs. McDonald died and Lot 1 descended to the appellee Hays. The permissive use of the drive was continued until the Hays received an offer from Lambert to buy Tract 1 conditioned on the removal of the access route used by the appellants through the years.
The appellants live upon a tract of land approximately one hundred (100) feet from Tract 2, but it is not adjacent or contiguous to Tract 2. Lambert proposed to convey a right-of-way 122 ft. X 30 ft. extending from Tract 2 to Tract 4 to appellants, thereby causing Tract 2 and Tract 4 to be contiguous and providing access to and from Tract 2 by a different route than that over Tract 1. Appellants declined the offer.
There is no dispute in the facts of this case, and the law may be applied upon those facts even though they have not been fully developed. The statement of facts set out in appellants' brief follows:
As stated in the Complaint, the Plaintiff, T. D. Lambert, wishes to purchase certain real property owned by the Plaintiff, Len Ray Hayes, [sic] and others, who inherited this property from a Mrs. McDonald. This property joins other property formerly owned by Mrs. McDonald which was conveyed by Mrs. McDonald to the Defendants, Arthur R. Taylor, Jr. and wife, Marjorie P. Taylor on April 3, 1967. Mr. and Mrs. Taylor owned no adjoining property and with the permission of Mrs. McDonald began using Mrs. McDonald's driveway as ingress and egress to their lot. The Defendants have no other legal means of access to their property.
Sometime after the death of Mrs. McDonald, the Plaintiff, Lambert, offered to purchase the remaining McDonald property if the Taylor easement could be removed and offered to substitute another strip of land to allow the Defendants access from other proeprty acquired by the Defendant, Marjorie ...