Chester King Burnham v. Joseph A. Kwentus

Court of Appeals of Mississippi
2015 WL 1015708, 174 So. 3d 286 (2015)

ELI5:

Sections

Rule of Law:

Use of another's land that is based on express or implied permission, such as neighborly courtesy, cannot ripen into a prescriptive easement because it lacks the necessary element of hostility. Separately, an easement by necessity arises by implication when a common owner severs a tract of land in a way that leaves one parcel landlocked.

Facts:

In 1937, Capitol National Bank owned a specific tract of land and also held a one-third interest in an adjacent tract.
Capitol sold its interest in the adjacent tract to an individual named Young, an action that left the adjacent tract landlocked with no access to a public road except by crossing Capitol's land.
Chester Burnham purchased the entire interest in the landlocked tract in 1952.
For over fifty years, Burnham used a private path known as 'Ridge Road' across the neighboring property to access his land for hunting and timber harvesting.
The owner of the neighboring property, Dr. Brannan, was aware of Burnham's use but never objected, later testifying that he allowed the access out of 'neighborly courtesy' and kindness.
In 2008, Dr. Brannan sold his property to Joseph Kwentus and Karen Richardson.
Kwentus subsequently instructed Burnham to stop using Ridge Road and to use a newer, less passable road instead, leading to the dispute.

Procedural Posture:

Burnham filed an affidavit of adverse possession regarding the easement.
Burnham sued Kwentus in the Hinds County Chancery Court.
Kwentus filed a motion regarding the location of the easement access.
The Hinds County Chancery Court denied Burnham's claim for a prescriptive easement.
The Hinds County Chancery Court granted Burnham's alternative claim for an easement by necessity.
Burnham appealed the denial of the prescriptive easement to the Court of Appeals of Mississippi.
Kwentus cross-appealed the granting of the easement by necessity to the Court of Appeals of Mississippi.

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Issue:

Did the trial court correctly determine that the plaintiff failed to establish a prescriptive easement due to the permissive nature of his use, while simultaneously establishing an easement by necessity based on historical common ownership?

Opinions:

Majority - Maxwell

Yes, the trial court correctly applied the law by denying the prescriptive easement and granting the easement by necessity. Regarding the prescriptive easement, the court reasoned that a claimant must prove use that is 'hostile' or adverse to the owner's rights. Because the previous owner (Dr. Brannan) testified that he knowingly permitted Burnham to use the road as a 'neighborly courtesy,' the use was permissive, not hostile. Permission, whether express or implied, defeats a claim for prescription. Regarding the easement by necessity, the court affirmed that such easements arise implicitly when a common owner severs land, leaving one portion landlocked. The court found that Capitol National Bank was a common owner in 1937, and the necessity for access created at that time still exists today. Therefore, the right of way travels with the land.

Analysis:

This decision reinforces the public policy of encouraging 'neighborly courtesy' without punishing landowners for their kindness. If the court had ruled that Burnham's long-term use created a prescriptive right despite the owner's permission, it would force landowners to aggressively block or sue neighbors to prevent easements from forming, destroying neighborly relations. The ruling clarifies that 'hostility' is a distinct and necessary element from 'actual' use; merely using the land is insufficient if the owner implicitly allows it. Additionally, the case confirms that an easement by necessity is a robust property right that persists over decades (in this case, from 1937 to 2013) as long as the need for access remains, even if the original common ownership was only a partial interest.

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