Warren County v. Mastronardi , 76 Miss. 273 ( 1898 )

Terral, J.,

delivered the opinion of the court.

The Warrenton and Hawbinson Ferry public road, as originally laid out, is located on the dividing line between the land now owned by Mastronardi, and the land of the adjacent proprietor. In 1863, and prior thereto, the lands now owned by appellee belonged to Cameron, and were inclosed by a fence running along and next to said highway. Cameron’s fence was destroyed, and the fence along said road and inclosing said land was not rebuilt until some time after August, 1891, when it was acquired by Mastronardi. Commencing with the year 1863, the old road, then used before the regular public highway, has been abandoned for seven or eight hundred yards of its course, and the traveling public have been accustomed, on account of the roughness of the old road, to pass over the Cameron tract of land. After Mastronardi bought the Cameron tract of land, he got permission of the board of supervisors to fence his own land so as to replace the public road on its original route. The board soon after rescinded the order granting appellee permission to run his fence across the road beaten out and used over his land, and the appellee declining to remove the fence which he had built inclosing his land, the overseer cut his fencing so as to open the road over appellee’s land to public travel. Appellee replaced his fence, when the overseer cut it again, and, to prevent the third cutting of it, appellee replaced his fence and enjoined the overseer and the board of supervisors from interfering with it again. Upon hearing, the chancery court made the injunction perpetual, and the board of supervisors have appealed to this court.

In addition to the facts above stated, it was proved by some ten witnesses, on the part of the board of supervisors, all living in the neighborhood and conversant with the road, that the road through the land of Mastronardi is now pretty near the line it has been on for the last thirty years; that it has been used by the public continually for that period, without objection on the part of the owner; that it has been, for more than ten years, worked by the overseer; that the old road was abandoned by the traveling public because of two or three hills and intervening hollows which £ £ sloughed ’ ’ out, and were hard to keep in good order; and that the road through appellee’s land has been substantially on the same line for more than ten years.

Three witnesses on the part of appellee testified that the line of road upon appellee’s land has been from the first continually shifting; that it has been worked in one or two places only, if it had been worked at all; and that it would cost no great deal to put the original road in repair.

We think the action of the chancery court is justified by the facts of the case. .

As a title to land is gained by ten years’ actual, adverse possession, the use of a right of way over land for a like period, exercised adversely and under color of right, would constitute a good title by prescription to such way. The use of a way over land, in order to ripen into a title by prescription, must be under color of right, and the privilege exercised must be such as to expose the party asserting such right of way to an action if he wrongfully exercised such right. Wash-burn on Easements (4th edition), 152, 153, 27, 28; Lanier v. Booth, 50 Miss., 410.

We do not regard the traveling public as asserting such privilege in this case. Surely they had no intention of inviting Cameron to sue them, and, indeed, it is difficult to see how he could have maintained an action against them collectively or distributively.

Certainly the board of supervisors had appointed an overseer for that link of the Warrenton and Hawkinson Ferry road, but there is nothing in the record to show that the board had any knowledge that the-line of the original road had been departed from by the passage over Cameron’s land until the filing of Mastronardi’s petition in 1894. The whole record shows that the public had a right of way in the road as originally laid out, more direct than that through Cameron’s or Mastronardi’s land, which strongly tended to disprove any idea of acquiring a right of way over the Mastronardi land, if indeed anything less than an assertion of a claim by the board of supervisors could constitute color of right.

, Affirmed.