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Burnham v. Kwentus

Court of Appeals of Mississippi

March 10, 2015

CHESTER KING BURNHAM, APPELLANT / CROSS-APPELLEE
v.
JOSEPH A. KWENTUS AND KAREN RICHARDSON, APPELLEES / CROSS-APPELLANTS

DATE OF JUDGMENT: 12/11/2013.

Page 287

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT, HON. DENISE OWENS, TRIAL JUDGE.

FOR APPELLANT: JOHN T. ARMSTRONG JR.

FOR APPELLEES: JOHN G. CORLEW, KATHY A. SMITH.

BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 288

MAXWELL, J.

[¶1] For more than fifty years, Chester Burnham had crossed his neighbor's property along Ridge Road, a private road that ran from a public road to Burnham's landlocked property. Burnham's neighbor testified this access was granted out of neighborly courtesy. His family knew Burnham used the road and " in the kindness of their heart" allowed Burnham " to go through their property without question." But when Burnham's neighbor sold the family property in 2008, Burnham's new neighbors, Joseph Kwentus and Karen Richardson (collectively, Kwentus), told Burnham to stop using Ridge Road. They instead instructed him to use a newer and--in Burnham's eyes--less-passable road. Burnham sued Kwentus, claiming he owned a prescriptive easement across Ridge Road. The chancellor disagreed.

Page 289

And Burnham now appeals the denial of this claim.

[¶2] Mississippi's property laws are clear that, if use is based on permission, express or implied, no matter how long, it can never ripen into the hostile use required for a prescriptive easement.[1] Key to a prescriptive easement is use that is adverse to the rights of the serviente-state owner.[2] And here the chancellor found Burnham's use of Ridge Road was not adverse but rather due to the kindness of his neighbor. Thus, we affirm the first part of her judgment, which denied Burnham's claim to a prescriptive easement.

[¶3] But Burnham is not left without access to his landlocked property. The chancellor granted Burnham's alternative claim that he had an easement by necessity. This easement arose in 1937, when the bank that owned both Kwentus's property and an undivided interest in Burnham's property sold off its interest in Burnham's landlocked property. In this situation, the law assumes the common owner impliedly granted a right-of-way across its property, so the purchaser could have the needed access to his property.[3] This type of easement is appurtenant, traveling with the land as long as the necessity still exists.[4] Because the chancellor found Burnham was in the same need of access as his predecessors in title, we also affirm the second part of the chancellor's judgment, which granted Burnham an easement by necessity across the newer road until it connects to Ridge Road.

Background Facts and Procedural History

I. Evidence Before the Chancellor

[¶4] In 1937, the property that is now Kwentus's was owned by Capitol National Bank (Capitol). Capitol also owned an undivided one-third interest in the property that is now Burnham's. Capitol conveyed this one-third interest to Robert F. Young. At the time of Capitol's conveyance to Young, Burham's property became landlocked. While Capitol had been able to access its interest in the Burnham tract because it owned the adjoining property, Young would have had to cross over Capitol's property to reach a public road. One of Young's successors in interest also acquired the remaining undivided interest in the property. So when Burnham purchased the property in 1952, he purchased the entire interest.

[¶5] Following his purchase, Burnham began using Ridge Road across his neighbor's property, as it was the only way to get to his land. He used the road to access his land to hunt. And he directed his friends and hunting lessees to do the same. Burnham also ...


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