Court: Court of Appeals of Mississippi; December 17, 1998; Mississippi; State Appellate Court
An appeal has been made regarding a chancellor's decision from the Chancery Court of Calhoun County concerning a property access dispute. The chancellor established that a private easement for ingress and egress had been created by prescription but permitted the owner of the adjacent land to re-route the easement. The appellant, Ann May Enterprises, Inc., argues that the access route, known as Winters Road, is part of the public road system, which the chancellor lacked the authority to alter. The Court agrees with the appellant, reversing the chancellor's decision.
May Enterprises owns a property that is not directly connected to two paved public roads but is accessed via Winters Road, which was designated as a public road by the county in 1943. Although Winters Road included two timber bridges that have since become unserviceable, the access remains viable as the bridges are located further along the road. May Enterprises has historically used this route for access, particularly for a recreational cabin situated on the property, despite the lack of permanent occupation.
In 1994, the adjacent landowner, James Capíes, blocked access to Winters Road, prompting May Enterprises to initiate legal action, claiming the road's status as a county road prohibited such obstruction. Capíes counterclaimed, alleging trespasses by May Enterprises due to their access. The chancellor acknowledged that Winters Road was once public but concluded it had been effectively abandoned due to prolonged non-use and lack of maintenance, allowing May Enterprises to establish a private easement through continuous use. However, the Court ultimately finds in favor of May Enterprises, asserting that the access should remain unaltered.
Capíes established a residence near Winters Road, which was causing disturbances due to the road's use by individuals accessing the May Enterprises tract. The chancellor recognized May Enterprises' right to a prescriptive easement over Capíes' property but exercised his equitable powers to require a rerouting of the easement to minimize disruptions to Capíes' enjoyment of his property. Capíes was granted the authority to select the new route, which would be surveyed at May Enterprises' expense. Furthermore, the chancellor ruled that May Enterprises would be responsible for attorney’s fees due to their wrongful pursuit of an injunction regarding non-existent public rights.
Following this ruling, May Enterprises filed an appeal. Capíes contended that the Court lacked jurisdiction because the order was interlocutory, as the new easement route and necessary survey had not been established, nor had attorney's fees been determined. Despite the technical merit of Capíes' argument, the chancellor had indicated the right to appeal, and the Court ultimately decided to address the merits of the appeal, having noted that the case had been fully tried and the main issues resolved.
Regarding the public nature of Winters Road, there had been no formal abandonment by the Calhoun County Board of Supervisors. May Enterprises argued that a 1986 statute, which outlines the requirements for road closure, indicated the road retained its public character due to a lack of compliance with this statute. Capíes contended that the public nature of the road ended before 1986, making the statute inapplicable. The Court agreed with Capíes, referencing the chancellor’s findings that suggested the road had been abandoned prior to 1986.
Section 65-7-121 lacks a predecessor statute defining the formal closure of public roads; however, case law prior to 1986 supports the notion that such authority existed. In *Berry v. Board of Supervisors*, the Mississippi Supreme Court recognized county supervisors' power to close roads under the Mississippi Constitution and relevant statutes, despite the absence of a defined procedure. Other cases indicate that formal closure was typically achieved through minute entries by supervisors.
The lack of a formal closure record does not conclude the inquiry, as the court has acknowledged the possibility of de facto abandonment of public roads. Abandonment can be established even without formal closure if public exclusion is sufficiently complete and continuous, matching criteria akin to adverse possession. Specifically, a continuous disuse must be demonstrated for at least ten years.
The *McNeely v. Jacks* case clarifies that no minimum public usage or traffic volume is required to contest abandonment; merely any public use, even by limited individuals, can suffice. For instance, if a road primarily used by an abutting property owner remains accessible to the public, abandonment does not occur.
In the current case, the chancellor determined that May Enterprises and its predecessors used Winters Road continuously for over ten years, which could establish an easement by prescription. This uninterrupted use led to the conclusion that the road's public character had diminished without a ten-year interruption, a finding not contested by Capíes. This situation closely mirrors the findings in *McNeely v. Jacks*, complicating potential distinctions for the case at hand.
In the absence of a formal closure by the supervisors, users of a public road cannot be reasonably expected to know that the road has fallen into disuse, which would otherwise affect their rights to use it as a public way. Maintenance neglect by the government does not equate to an intention to abandon the road. The continuous use of the road by the public, especially in less populated areas, supports its public character, as established in McNeely v. Jacks, rather than creating a private easement by prescription. The county’s claim of abandonment, without formal documentation, does not hold legal weight, and factual determinations regarding abandonment must be resolved in court. The chancellor’s erroneous decision suggested that the road could be deemed abandoned, which contradicts the evidence of continuous public use. Therefore, the court reverses the chancellor's ruling, affirming that Winters Road remains a public road and preventing any rerouting or denial of access for May Enterprises or the public. The order for May Enterprises to pay survey costs and the award of attorney’s fees to Capíes are also reversed. The judgment favors Ann May Enterprises, declaring the road as public and taxing the appeal costs to Capíes.
