
    F.M. JORDAN v. Jimmie L. GOODSON.
    No. 07-CA-58806.
    Supreme Court of Mississippi.
    March 7, 1990.
    
      W. Bruce Lewis, Gwin Lewis & Punches, Natchez, for appellant.
    Joseph Daniel Jaber, Natchez, for appel-lee.
    Before HAWKINS, ANDERSON and BLASS, JJ.
   ANDERSON, Justice,

for the Court:

In the case at bar the chancellor in the Chancery Court of Jefferson County, Mississippi, awarded to Jimmie L. Goodson, defendant below and appellee here, a permanent easement across the property of F.M. Jordan, plaintiff below and appellant here. Finding merit in the issues Jordan raised on appeal, we reverse and render the cause.

FACTS

On February 5, 1983, Jordan, an absentee landowner residing in Louisiana, filed a petition for issuance of a mandatory injunction seeking to enjoin Goodson from trespassing upon his land and damaging gates and locks placed thereon by him. Goodson answered the petition and filed a cross complaint asking the court to award him a permanent easement across Jordan’s property. Goodson’s amended cross complaint alleged that his use of said roadway, located at the northern boundary line of Jordan’s property, had been hostile, continuous and obstinate for more than ten years, entitling him to a permanent easement by adverse possession.

Jordan’s and Goodson’s lots, lots 5 and 4 respectively, were located adjacent to each other. Jordan’s lot was adjacent to the public roadway at the eastern boundary line, and Goodson’s lot located southwest of Jordan’s. (See Attachment.)

With the exception of the south boundary line, Jordan enclosed his lot with a solid fence when he purchased it. The only access to Jordan’s lot from the public road was a “gap” located off of it in the middle of the lot. The “gap” led to a cotton house located about seventy-five or one-hundred feet into Jordan’s lot. Testimony revealed that this path had been in existence since the 1930’s; however, it was used basically for cattle or travelling by foot.

The testimony was disputed as to the exact year the roadway at the northern boundary line of Jordan’s property was constructed; but all the witnesses testified that it was constructed sometime in the 1970’s. Jordan first discovered the roadway in 1976. At that time Jordan told Goodson that he would not permit use of the roadway on his property. However, Jordan subsequently rented his lot to Good-son’s father, Leon, from 1977 to 1981. After the five-year lease’s expiration, by agreement, Leon held over on the lot.

After Leon vacated the property, on August 25, 1982, Jordan installed a lock and chain on the gates at the roadway in dispute. The following day on August- 26th, Jordan discovered that the lock and chain were cut-off. Goodson subsequently admitted to Jordan he cut the chain and lock and would do so each time Jordan installed them. The chain and lock were cut-off on approximately three separate occasions. Additionally, posted signs were removed from the property.

Goodson first used his lot in 1960 for pasturing and grazing under a lease agreement until he purchased it on December 20, 1972. Prior to building the roadway in dispute, Goodson crossed Jordan’s property at the “gap” down the hill each time he went to his lot. Goodson testified that the Gilberts, the predecessors in interest to both Lots, also crossed Lot 5 as a means of ingress and egress to Lot 4.

Goodson relocated the path to the northern boundary line of Jordan’s property in 1970, and continued to use it after Jordan told him to stop because it was the only means of access for a vehicle. Goodson admitted that he removed the locks from the gate that Jordan installed, but denied removing the chains. Goodson had not used the path below the hill as a means of access to his Lot since 1970, and therefore, had abandoned it and made no claim to it.

The court found from clear and convincing evidence that Goodson had acquired a permanent prescriptive easeriient under a claim of right for use of the roadway across the northern boundary of Jordan’s property, and the right was acquired about the year 1970, although Goodson and his predecessors in title had used another roadway prior to that time. The court awarded, therefore, to Goodson a permanent easement across Jordan’s property and adjudicated that the roadway had been used continuously, openly and without interruption under a claim of title for the statutory period of more than ten years. The court specifically found that Goodson and his predecessors in title acquired a prescriptive easement well prior to the changing of the location of the present roadway which had been used since about 1930. Thus, the chancellor denied Jordan’s petition for issuance of mandatory injunction.

I.

The sole issue we address is whether the lower court erred in its determination that Goodson established a prescriptive easement during the time span that Goodson’s father leased the subject property from Jordan. The chancellor found that the prescriptive easement below the hill (the “gap”) had been properly moved to the northern boundary line of Jordan’s property. First, the path below the hill was just that — a path for cattle or for a person to travel by foot. However, Goodson did not relocate this path to Jordan’s northern boundary line. Rather, he created a gravel road.

“Once an easement has been acquired by prescription, its general location can be changed either by oral consent or by acquiescence.” Flanagan v. Branton, 224 Miss. 214, 220, 79 So.2d 823, 824 (1955). However, “the owner of a prescriptive easement, ..., cannot extend it beyond the actual user nor beyond such width as is reasonably necessary for the purpose for which it was created or acquired.” Lindsey v. Shaw, 210 Miss. 333, 49 So.2d 580, 584 (1950) (citing 17 Am.Jur., Easements, Sec. 105).

Here, Goodson changed the character and use of a mere path when he relocated it to Jordan’s northern boundary line. Jordan neither consented nor acquiesced to such a change; therefore, it was not permissible and the chancellor erred in finding that the roadway was properly relocated. Consequently, the easement’s prescriptive period at the northern boundary line on Jordan’s property could not begin to run until the construction of the roadway in 1970.

II.

Goodson’s father, Leon, leased the property in question in 1974 and from 1977 through 1981. The record is unclear, but at least for one (1) year Leon leased the same property from Jordan’s brother-in-law. Jordan contended, therefore, that Leon could not permit a claim of prescription to run in favor of Goodson during the period of the lease.

Goodson contended that Jordan’s argument that his father’s lease precluded an easement by prescription, was misplaced in that Goodson’s father claimed neither a right of use through prescription nor adverse possession. Secondly, Goodson contended that Jordan’s erection of gates across the roadway in question was neither inconsistent with the right to use the roadway, nor an interruption as is required to stop the running of the statute of limitations.

“It is well settled that a tenant cannot assert title adverse to his landlord.” Price v. Moss, 214 Miss. 253, 261, 58 So.2d 661, 663 (1952). Additionally, 51C C.J.S. Landlord and Tenant § 286, at 736 states:

Not only is the tenant precluded from relying on his possession to bar his landlord, but also all persons who come in under, or derive possession from, him in any manner, however remotely, stand in no better position, even though they have no knowledge of the tenancy relationship. Possession is presumed to be in accordance with title until a positive repudiation of the tenancy is brought to the knowledge of the landlord against whom title by adverse possession is claimed. Thus one to who the tenant attorns will not be regarded as holding adversely to the landlord, although he may establish an adverse possession where the landlord has notice of such attornment.

See, also, Jackson v. Genecov, 471 S.W.2d 589 (Tex.Civ.App.1971) (claimant’s possession which was joint with the tenant of the owner is not of the exclusive nature necessary to adverse possession); Petty v. Dunn, 419 S.W.2d 417 (Tex.Civ.App.1967) (“[a]ny sort of joint or common possession by a claimant and the owner, or a tenant of the owner prevents the claimant from having the requisite quality of exclusiveness”).

CONCLUSION

For the sake of argument we assume, as the chancellor, that the roadway located on Jordan’s northern boundary line was constructed in 1970. Goodson’s father leased Jordan’s property for approximately seven years out of the required ten-year statutory period.

The evidence showed that until 1976, Jordan had no knowledge that his property was used as a means of ingress and egress to Goodson’s property. Even with such knowledge, once Jordan leased his property to Goodson’s father, with the exception of waste, he relinquished control of it during the leasehold. Here, such release was for approximately seven years. Therefore, we must reverse and render the cause for two reasons. First, the roadway at Jordan’s northern boundary line was not of the same character or for the same use as the path below the hill; and secondly, Goodson could not claim a right of adverse possession during the period his father leased the alleged servient property from Jordan.

REVERSED AND RENDERED.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, PITTMAN and BLASS, JJ., concur.

PRATHER and SULLIVAN, JJ., dissent.

PRATHER, Justice,

dissenting:

With respect to the majority opinion, I would give deference to the chancellor’s finding of fact that the cross-complainant, Jimmie L. Goodson, acquired a prescriptive easement under a claim of right in the year 1970, based upon Goodson and his predecessors’ use of the roadway from 1930 to 1970 as a means of ingress and egress from the public highway to Goodson’s property.

The entire finding made by the chancellor is as follows:

(1) Plaintiff [Jordan] is the record owner of Lot 5 of the survey of the J. Monroe Gilbert property. Defendant [Good-son] is the record owner and in possession of Lot 4 of the survey of the J. Monroe Gilbert property. Said lots are located in Jefferson County, Mississippi. Plaintiff and Defendant have a common predecessor in title. Plaintiff’s property abuts a public highway, Plaintiff’s property and Defendant’s property adjoin each other, and Plaintiff’s property is between Defendant’s property and a public roadway or highway. A roadway across the Plaintiff’s property is and has been used as a means of ingress and egress from the public "highway to Defendant’s property.
(2) The original roadway used by Defendant and his predeceassors [sic] in title across property of Plaintiff was from about 1930 to 1970 through the middle of said Lot 5, but since about 1970 to the present the roadway used by the Defendant was a strip of land approximately 14 feet in width running from Defendant’s property to the public roadway along and South of the line between Lot 5 of Plaintiff and Lot 2 of the said survey of J. Monroe Gilbert property, which said Lot 2 is owned by a party not involved in this litigation.
(3) The Court finds from clear and convincing evidence that the Cross-Complainant, Jimmie L. Goodson, has acquired a permanent prescriptive easement under a claim of right for the use of said roadway across the North part of Lot 5 of the survey of the J. Monroe Gilbert property, being property of the Plaintiff, and that said right was acquired about the year 1970, although Defendant and his predecessors in title had used another roadway across Lot 5 prior to that time.
(4)The Court awards unto the Defendant, Jimmie L. Goodson, a permanent easement across the property of the Plaintiff, P.M. Jordan, for ingress and egress from his property to the roadway, and adjudicates that said roadway has been used continuously, openly, without interruption under a claim of title for the statutory period of more than 10 years (since 1970). The Court specifically finds that the Defendant, Jimmie L. Goodson, and his predeceasors [sic] in title acquired a prescription easement well prior to the changing of the location of the present roadway which had been used since about 1930. Again, the roadway is described as a strip of land 14 feet in width South of and adjacent to the boundary line between Lot 5 and Lot 2 of the survey of the J. Monroe Gilbert property, all of said 14 feet being on the Northern part of the property of Plaintiff. '
It is, therefore, ORDERED AND ADJUDGED that Plaintiff’s petition for issuance of mandatory injunction and other relief sought by Plaintiff is denied, and further Ordered and Adjudged that the Defendant, Jimmie L. Goodson, is awarded a permanent easement over and across the property of the Plaintiff as above described.

The location of the roadway had varied from pre-1970 to post-1970, but the right to a prescriptive easement was acquired prior to the changing of the location of the roadway and before any leasing of the Jordan property by Goodson. The record supports this factfinding by the chancellor, and I would not disturb his finding of fact unless he was manifestly in error, which I contend he was not. Williams v. Evans, 547 So.2d 54 (Miss.1989); Collins By Smith v. McMurry, 539 So.2d 127 (Miss.1989); Matter of Estate of Varvaris, 528 So.2d 800 (Miss.1988); Leard v. Breland, 514 So.2d 778 (Miss.1987); Lovett v. E.L. Garner, Inc., 511 So.2d 1346 (Miss.1987).

The chancellor referred to the roadway, rather than the path, throughout the span of time since 1930. The character of the road never changed as it was always used for ingress and egress for people, tractors, pickups, and cattle and its width was limited by the chancellor to fourteen (14) feet in width. Additionally, the right to the permanent prescription easement was found by the chancellor to have been acquired by 1970, which was prior to any lease period subsequent to 1974.

Respectfully, I would affirm the chancellor’s finding of facts and his application of the law.

SULLIVAN, J., joins this opinion. 
      
      . Both lots were used for agricultural purposes. It appears from the record that an easement by implication or necessity could not be created. Testimony revealed that other accesses to Good-son’s lot existed; but the roadway in dispute was the only means that would accommodate a vehicle.
     