The Good Neighbor Policy

September 19, 2016 § Leave a comment

No, this post is not about the Franklin Roosevelt administration’s policy toward Latin America. It’s about real-life neighbors and how we all would like to see them treat one another.

The Kendall, King, Mullen, and Greenwood families (we’ll call them “the Kendalls”) owned land traversed by Coleman Road, which was at one time a public road, but which had been abandoned by the county board of supervisors. After it was abandoned, the Kendalls allowed Kirsh and Gayle Mullen May to use the road. But that stopped in 2013, when they prevented the Mays from doing so.

The Mays filed suit for a prescriptive easement. After a trial, the chancellor concluded that they had failed to meet the burden of proving what amounts to adverse possession of the right-of-way, and so he denied their claim. In his ruling, the chancellor ordered the Kendalls to provide the Mays with a key to the gate blocking the road, and to allow them use of the road, notwithstanding his negative ruling on the prescriptive easement relief. He said:

While this Court has determined as set forth above that [the Mays] have no right of ownership in Coleman Road, Chancery Court is a court of equity [and] can require the parties in a legal proceeding such as this to do that which is reasonable and fair. Defendants in their final brief in this matter cited Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960) wherein it was stated: “The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights.” Defendants allowing [the Mays] the right to use Coleman Road in the past was the right and neighborly thing to do and this use did nothing to harm Defendants’ ownership in Coleman Road.

The Kendalls, having won the battle but lost the war, appealed. Their sole issue on appeal was, in essence: Huh? Can he do that?

In Kendall, et al. v. May, decided August 16, 2016, the COA predictably reversed and rendered. Judge Wilson wrote for a somewhat unanimous court, Judge James concurring “in part without separate written opinion”:

¶9. Thus, the only issue in this appeal is whether, despite the Mays’ inability to establish a prescriptive easement, the chancellor had authority to order the defendants to give the Mays a key to the gate and to allow them to use the road. In granting that relief to the Mays, the chancellor cited Patterson v. Harris, 239 Miss. 774, 125 So. 2d 545 (1960). In Patterson, Harris claimed a prescriptive easement based on a lengthy period of use of a private road over the Pattersons’ land. See id. at 784-85, 125 So. 2d at 550. The Court held that he was not entitled to an easement because his use had been permissive, not hostile or adverse. See id. at 787-88, 125 So. 2d at 551-52. The Court reasoned:

The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon “to go to law” to protect his rights.

Id. at 785-86, 125 So. 2d at 550 (quoting Weaver v. Pitts, 133 S.E. 2, 3 (N.C. 1926)). Therefore, “[i]t is a recognized rule of law that where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.” Id. at 786, 125 So. 2d at 550.

¶10. Thus, the law does not authorize courts to compel “acts of neighborly courtesy” in particular cases, which is essentially what the chancellor did here. Rather, it encourages voluntary acts of courtesy among neighbors by making clear that such courtesies will not result in a forfeiture of property rights. The rationale is that if permissive use were allowed to “ripen into a prescriptive right,” neighbors would be far less willing to permit one another to use their lands to begin with. In the present case, this underlying policy requires us to uphold the defendants’ right to refuse to allow the Mays to continue to cross their lands. The chancellor’s order of a right of access and a key to the gate would discourage neighborly courtesy in the same way as a prescriptive easement.

¶11. In short, the law grants the defendants a right to exclude others, including the Mays, from their property. Accordingly, the chancellor had no equitable authority to order them to give the Mays a key and access to their property.We therefore reverse and render judgment in favor of the defendants.

To their credit, the Mays filed a motion “to confess the appeal,” in which they stated that they had decided not to cross-appeal the denial of the prescriptive easement, and they acknowledged that they could find no case law or statutory authority to support the chancellor’s order that they be given a key and access over the road. (¶6)  The MSSC left it up to the COA to decide what to do with the motion, which required the parties to brief the uncontested issue, and the COA to rule on it. Kudos for professionalism to counsel for the Mays. Head-scratch to the MSSC.



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