Before Thomas, P.j., Coleman, And Hinkebein, JJ.
The opinion of the court was delivered by: Hinkebein, J., For The Court:
DATE OF JUDGMENT: 12/08/1997
TRIAL JUDGE: HON. ROBERT L. LANCASTER
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: APPELLEE WAS AWARDED A PRESCRIPTIVE EASEMENT AND DAMAGES OF $2,450.
¶1. Dissatisfied with the Oktibbeha County Chancery Court's decision finding appellee Shirley Douglas White to hold a prescriptive easement across their property, Gregory Sharp and his wife, Vicki Sharp, assign the following points of error to the chancellor's decision:
I. THE CHANCERY COURT OF OKTIBBEHA COUNTY MANIFESTLY ERRED BY HOLDING THAT THE PLAINTIFF HAD A PRESCRIPTIVE EASEMENT WHICH WAS DOMINANT ACROSS THE DEFENDANT'S LAND?
II. WHERE THE EVIDENCE SHOWED THAT ALL PRIOR ACCESS BETWEEN THE PARTIES' PREDECESSORS IN TITLE WAS PERMISSIVE AND THE PREDECESSORS WERE RELATED BY MARRIAGE, THE COURT MANIFESTLY ERRED IN HOLDING THAT THERE WAS A PRESUMPTION THAT ACCESS WAS UNDER CLAIM OF RIGHT AND REQUIRING THE DEFENDANT TO REBUT SAID PRESUMPTION.
¶2. Holding these assignments of error to be without merit, we affirm the judgment of the chancery court.
¶3. This case illustrates how the "handshake agreement" of a generation past can easily become the litigation of today. In or about 1962, the late Leon Douglas purchased a tract of land in the East Half of the Southeast Quarter of Section 10, Township 19, Range 12 in Oktibbeha County, Mississippi. Adjoining the Douglas property was a tract of land owned by the late J. B. Tenhet in the West Half of the Southwest Quarter of Section 11, Township 19, Range 12. The record reflects that Leon Douglas and J. B. Tenhet were cousins, friends, and may have occasionally assisted each other in their respective farming operations. In order to access some of his farmland, Douglas and his hired hands would have to navigate a creek, which often resulted in a stranded tractor. The creek was also the source of flooding on the Tenhet property. Shortly after Douglas's purchase of the land, Tenhet presented a proposal. The gist of the deal was that the men would construct a gravel road across Tenhet's property that would give Douglas easy access to his farmland. They would also build a levee to limit the flooding from the creek. According to the testimony of Willie Cooper, who worked for Douglas at the time, these projects were accomplished in two weeks using trucks, plows and other equipment belonging to both landowners. Cooper also testified that he and Douglas would regularly use the road and were not required to ask Tenhet's permission. Both Tenhet and Douglas took responsibility for maintaining the newly constructed road. The agreement, while never put in writing, existed for approximately thirty years without incident and beyond the deaths of both Leon Douglas and J.B. Tenhet.
¶4. After Leon Douglas's death, his property passed to his widow Shirley Douglas White, who is the appellee in the case sub judice. After J. B. Tenhet's death, his property was sold to the appellants, Gregory Sharp and his wife Vickie. The 1992 sale was made on behalf of the estate of J. B. Tenhet by his son, Richard Tenhet, and his wife, Geraldine, who is also a realtor. Both Richard and Geraldine testified that prior to the sale they informed the Sharps that the gravel road was access to Mrs. White's property and that Gregory Sharp had informed them that it would not be a problem. Geraldine testified that she understood Mrs. White's access to be a prescriptive easement. Gregory Sharp testified that he understood Mrs. White's access to be a permissive use, which he allowed her and the farmers who leased her property to exercise up until 1995.
¶5. In 1995, Gregory notified Mrs. White that he was going to cut off her access to the road and that she would have to rely on another legal easement which had not been used for years. Gregory and Mrs. White eventually entered into a lease, which allowed her to use the road for the 1996 farming season in exchange for nominal consideration. After that lease expired on December 31, 1996, Gregory again informed Mrs. White he would not give her access to farm her land for the coming growing season. The record reveals that Gregory offered to renew the lease if Mrs. White agreed to a series of proposals which involved him being able to purchase her property upon her death. Since Mrs. White wished for her son to inherit the property, she declined Gregory's proposals. As the result of Gregory's refusal to allow her to use the road, Mrs. White was unable to rent forty-nine acres of her farmland for the 1997 farm season. The record reveals that Mrs. White was to have received $50 per acre in rental for the land in question, for a total of $2450. On February 14, 1997, Mrs. White filed a complaint against Gregory in which she requested the court to confirm her right to use the road subject to an existing prescriptive easement. The chancellor heard testimony in the case on September 25, 1997, and issued a memorandum opinion on November, 18, 1997. The chancellor found that since Leon Douglas had helped construct the road across J. B. Tenhet's land, Douglas's use of the road was under a claim of right and not a permissive or gratuitous use. As such, the chancellor found ...