Webb, et al. v. Mearns, et al.
| Docket Number: | 2005-CA-01237-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: IRVING, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Real property - Prescriptive easement - Temporary easement Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 05-26-2005 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: SUMMARY JUDGMENT GRANTED. Case Number: 04-00079-3 |
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| Party Name: | Attorney Name: | |||
| Appellant: | MICHAEL A. WEBB AND MISSISSIPPI PROPERTY HOLDINGS, L.L.C. |
G. MARTIN WARREN |
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| Appellee: | NEIL A. MEARNS AND WIFE, JOYCE H. MEARNS, L. A. KOENENN, JR. AND WIFE, MAE DOLESE KOENENN | WILLIAM ALEX BRADY, ALFRED R. KOENENN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Prescriptive easement - Temporary easement |
| Summary of the Facts: | Michael Webb and Mississippi Property Holdings, L.L.C. filed a complaint against Neil Mearns and Joyce Mearns, requesting temporary and permanent relief on the basis of an alleged prescriptive easement. The Mearns brought L.A. Koenenn and Mae Koenenn into the lawsuit as third-party defendants, alleging that the Koenenns may have breached warranties in their deeds to the Mearns. The court granted summary judgment on behalf of the Mearns and the Koenenns. The plaintiffs appeal. |
| Summary of Opinion Analysis: | To establish a prescriptive easement, the evidence must show that possession is under claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted for a period of ten years; exclusive; and peaceful. The Webbs owned their property for only nine years and ten months before the temporary easement, an insufficient time to meet the prescriptive easement requirements. However, a property owner may “tack” the possession of a prior owner in privity under some circumstances. Tacking is appropriate only where the prior owner’s possession was also adverse and hostile. In this case, the evidence does not show that the prior owner’s use of the property was hostile. In the absence of any evidence that the prior owner’s use of the road was hostile, the plaintiffs cannot tack his possession to their own. Therefore, summary judgment was proper as the plaintiffs have failed to show a genuine issue of material fact regarding one of the requirements for a prescriptive easement, specifically the requisite ten year possession. With regard to the ten years after the temporary easement, The Koenenns and the Mearns argue that the temporary easement created a permissive use of the roadway. Permissive use prevents a prescriptive easement from forming. Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive use, is lacking. Here, there was no extension of the temporary easement. Therefore, any use after the termination of the temporary easement was clearly without permission and would have been hostile. Also, the nature of the Webbs’ use of the land clearly changed after the termination of the temporary easement. The purpose of the temporary easement was to allow timber to be removed from the Webbs’ property. By contrast, Michael Webb claims that he and others used the property for occasional recreational purposes, such as hunting. This use would clearly constitute a change in the character of the use, and would thus be sufficient to overcome the temporary easement. Therefore, the evidence is sufficient to create a genuine issue of material fact sufficient to overcome summary judgment. |
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