Before Thomas, P.j., Diaz, And Southwick, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 04/01/97
TRIAL JUDGE: HON. JOHN C. ROSS JR.
COURT FROM WHICH APPEALED: LEE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION: JUDGMENT IN FAVOR OF APPELLEES
DISPOSITION: REVERSED AND REMANDED - 02/09/99
MOTION FOR REHEARING FILED:
¶1. H.D. and Wanda Scruggs, the appellants, contest the chancellor's decision to allow Carolyn Shelby, the Kyles, and the Petteys, the appellees, to maintain a prescriptive easement on the appellants' property. Feeling aggrieved by this decision, the appellants argue the following issues on appeal: 1) the chancellor erred in placing the burden of proof on the appellants, 2) the chancellor erred in finding that the appellees proved by clear and convincing evidence that their use of the appellants' property was hostile and under a claim of right, 3) the chancellor erred in finding the appellees proved by clear and convincing evidence that their use of the appellants' property was exclusive, and 4) the chancellor erred in finding that appellees' alleged prescriptive easement had not been abandoned. Since the first issue is dispositive, we do not address the other issues or the cross appeal. Finding this first assignment of error meritorious, we reverse and remand for proceedings consistent with this opinion
¶2. This case arose from a dispute over an alleged prescriptive easement maintained on approximately two acres of the appellants' property in Lee County. In 1953, John T. Houston acquired sole ownership of the West Half of the Southeast Quarter of Section 2, Township 11 South, Range 5 East in Lee County, Mississippi. At that time, T.D. Pettey owned the South Half of the East Half of the Southeast Quarter. When T.D. died in 1954, title to this tract passed to his wife and children. In the late 1960's, George Monroe Pettey and Huel L. Kyle, the husband of T.D. Pettey's daughter, Viva, constructed two earthen dams along the natural drain which crosses the Southeast Quarter and flows into Chiwappa Creek forming two lakes. Eventually, the upper lake backed up onto the property owned by Houston and flowed under an existing fence line which separated the East and West Halves of the Southeast Quarter.
¶3. In 1976, George Monroe Pettey died. In August 1978 a formal division was made of the South Half of the East Half of the Southeast Quarter between his children, George Thomas Pettey, Gloria Pettey, and George ...