                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2004-CA-00503-SCT

MISSISSIPPI EXPORT RAILROAD COMPANY

v.

MALCOLM E. ROUSE AND EDNA F. ROUSE

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          02/20/2004
TRIAL JUDGE:                               HON. JAYE A. BRADLEY
COURT FROM WHICH APPEALED:                 GEORGE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   RAYMOND L. BROWN
                                           W. FRED HORNSBY, III
ATTORNEY FOR APPELLEES:                    AUSTIN R. NIMOCKS
NATURE OF THE CASE:                        CIVIL - REAL PROPERTY
DISPOSITION:                               REVERSED AND RENDERED - 04/13/2006
MOTION FOR REHEARING FILED:                12/22/2005
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn and this

opinion is substituted therefor.

¶2.    This is a claim of prescriptive easement by private citizens who presented

uncontradicted proof of continuous use of a private crossing over active railroad tracks for

over fifty years. The question presented is whether active railroad tracks are “public

highways” as provided by Article 7, § 184, of the Mississippi Constitution and, therefore,

immune from prescriptive easement.
                   BACKGROUND FACTS AND PROCEEDINGS

¶3.    In early March, 2000, Malcolm and Edna Rouse, owners of Deep South Nursery, Inc.,

purchased approximately twenty acres (“Twenty Acres”) in rural George County to expand

their 128-acre nursery business. Although no public road adjoins the Twenty Acres,

Mississippi Export Railroad Company’s (“MERC”) right-of-way runs approximately 403 feet

along the eastern border with a private dirt crossing over MERC’s right-of-way and railroad

tracks connecting the Twenty Acres with Karla Road. Deep South receives and delivers

plants on 18-wheeler tractors with 46-foot trailers.

¶4.    After the Rouses purchased the Twenty Acres, MERC’s Superintendent of

Engineering, Willie Evans, set up a meeting to discuss the crossing. Mr. Rouse and Evans

met at the crossing to discuss the Rouses’ continued use of the crossing. According to

MERC, it threatened to remove the crossing unless the Rouses agreed to indemnify MERC

for liability claims and pay a share of the maintenance costs related to the crossing.1 The

meeting concluded with no agreement.

¶5.    Shortly thereafter, the Rouses planted approximately 21,000 Crepe Myrtles, Yapon

Holly, Deodar Cedar, Foster Holly, and other shrubs to offer for sale upon their maturity.

Over the next few years, the Rouses used the private dirt crossing to access the Twenty Acres

and care for the plants to prepare them for sale.



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       The Rouses, at trial, admitted they were familiar with the provisions of the indemnity
agreement through other landowners, but insisted that MERC never presented them with an
indemnity agreement to sign.

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¶6.    The Rouses heard nothing further regarding the crossing until early 2003, when

MERC provided them written notice that the crossing would be removed in thirty days, but

that MERC would grant the Rouses a 20-foot easement from the northeast corner of their

property along approximately 400 feet of the west side of MERC’s right-of-way, to Parker

Road. Although the easement granted by MERC provided access for automobiles and pickup

trucks, it was unsuitable for 18 wheel tractor trailers.

¶7.    On April 8, 2003, MERC removed the crossing which, according to the undisputed

evidence at trial, had been used for access to the Twenty Acres for more than fifty years.

This prompted the Rouses to bring suit in the Chancery Court of George County, claiming

an easement by prescription, and seeking an injunction against MERC “from entering onto

said easement or other property of the Plaintiffs and taking any actions which, in any manner,

may interfere with the Plaintiffs’ use and occupancy of their easement or right-of-way or

business, whether for business or private purpose.” The suit demanded damages for tortious

interference with their business operations, punitive damages, and court costs.

¶8.    After trial, the chancellor awarded the Rouses an easement by prescription and

ordered MERC to promptly restore the removed crossing, but dismissed the Rouses’ claim

of tortious interference. The chancellor enjoined MERC from disturbing or interfering with

the Rouses’ use of the easement “so long as same does not disrupt the operation of the

railroad’s business.” From this judgment, MERC appeals. Both the Mississippi Railroad




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Association and the American Short Line and Regional Railroad Association filed amicus

briefs.

                                           ANALYSIS

¶9.       MERC raises numerous issues on appeal, including an assertion that the Rouses failed

to meet their burden of proof as to prescriptive easement. Because we agree, and today hold

that prescriptive easements may not be obtained by private citizens across active railroad

lines, we shall address only that issue utilizing a de novo standard of review. Gourlay v.

Williams, 874 So.2d 987, 989 (Miss. 2004).2

¶10.      This Court has long held that “[t]he rights of the public to the use of the streets and

public roads cannot be lost by adverse possession. Whitherspoon v. Meridian, 69 Miss. 288,

13 South. 843 [(1891)]; Briel v. City of Natchez, 48 Miss. 423 [(1873)]; Vicksburg v.

Marshall, 59 Miss. 563 [(1882)].” Mobile & O.R. Co. v. Strain, 88 So. 274, 277 (Miss.

1921).

¶11.      In Mississippi, railroad tracks are considered public highways. Article 7, Section 184

of the Mississippi Constitution provides, “[a]ll railroads which carry persons or property for

hire shall be public highways, and all railroad companies so engaged shall be common

carriers....”




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         We will not address Miss. Code Ann. Section 77-9-253 (Rev. 1999) because it is not
applicable to the case sub judice. The statute would impose a duty on the railroad company to make
and maintain a crossing only if the track passed through the Twenty acres, and it is undisputed that
it does not here.

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¶12.    Thus, because we are constitutionally required to recognize “railroads” as “public

highways,” and as discussed infra, our precedent clearly prohibits a private individual from

gaining an interest across a public highway by adverse possession or prescriptive easement,

the question presented appears simple. However, as pointed out by the Rouses, this Court

has consistently held that a railroad’s right-of-way may be adversely possessed. See e.g.

Mobile & O.R. Co. v. Strain, 88 So. 274 (Miss. 1921); Paxton v. Railroad Co., 76 Miss.

536, 24 South. 536 (1899); and Wilmot v. Yazoo & M. Val. R. Co., 24 So. 701, 76 Miss. 374

(1899). We find this line of cases clearly distinguishable.

¶13.   In Strain, the owner of a hotel situated on railroad right-of-way sought title by adverse

possession. The Strain Court recognized that rights by adverse possession could not be

gained across the portion of right-of-way “in actual use,” but then stated that as to “lands of

a railroad company not actually necessary for the operations of the railroad, title by adverse

possession may be acquired.” Strain, 88 So. 2d at 277. Strain clearly stands for the

proposition that the portion of railroad right-of-way in actual use, that is, the tracks, is to be

treated as a public highway, and title by adverse possession as to a part of the right-of-way

may be acquired only if that portion is not being used.

¶14.   The Rouses claim Alabama & V. Ry. Co. v. Joseph, 87 So. 421 (Miss. 1921), holds

that an individual, corporation, or municipality can acquire a prescriptive right-of-way over

an active railroad track. In Joseph, the railroad company condemned a strip of land near

their railroad tracks and the intersection of Capital and Gallatin streets to improve the



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intersection’s visibility for their engineers. After the railroad condemned the strip of land,

the City of Jackson paved Capital and Gallatin streets and part of the condemned strip of

land. The public traversed the paved section of the condemned land as part of the roadway.

¶15.   The railroad brought suit against the City of Jackson and others to “cancel any claim

of ownership” in the strip of land. Although the city did not defend the suit and judgment

was entered against it, the Rouses cite in their brief the following language from the opinion:

       The proof does not show that the railroad was excluded from this property at
       all by the city. The railroad was constantly in use of its tracks, and using the
       property for the purposes for which it was acquired, and the facts show that
       both the city and the railroad company were making such use of the strip of
       ground in question as would not interfere with the railroad’s rights. Under
       these circumstances, the city merely acquired such rights as the use vested in
       it. That is to say, a mere right of passage over the ground for persons and
       vehicles and not the right to obstruct or erect any building upon the ground.

Id. at 422. According to the Rouses, this language leads to the following conclusion:

“[a]ccordingly, this Court ruled that the City of Jackson acquired a prescriptive right of

usage, such that persons and vehicles (the public) did have the right to pass over the

railroad’s tracks as needed.” The Rouses’ conclusion is curious, indeed, given that the suit

in Joseph did not involve a claim of prescriptive easement over the tracks, and that the City

of Jackson confessed judgment, losing any claim of easement it might have had. Joseph

stands for the proposition that, even where a party acquires an easement across a railroad’s

right-of-way (not its tracks), that easement is limited to uses which do not interfere with the

railroad’s use of its tracks.




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¶16.   Our decision today is not out of line with other jurisdictions. The Supreme Court of

Virginia reaffirmed its well-established principle that a prescriptive right-of-way cannot be

acquired over property being used for a public purpose in Norfolk and W. Ry. Co. v.

Waselchalk, 244 Va. 329, 421 S.E.2d 424 (Va. 1992). In this case, a farm utilized a private

railroad crossing for many years for agricultural and other related purposes.             Betty

Waselchalk decided to establish a mobile home on a portion of the land and use the railroad

crossing for access to a public highway. Upon learning of the crossing’s change in use from

agricultural to residential, the railroad presented Waselchalk with a crossing agreement that

would require her to pay the maintenance costs for a residential crossing. When she refused

to sign the agreement, the railroad closed the crossing. At trial, the chancellor found that

Waselchalk had a prescriptive right to use the crossing. In finding error in this determination,

the Supreme Court of Virginia held that " 'no prescriptive right can be acquired in property

affected with a public interest or dedicated to a public use.' Preshlock v. Brenner, 234 Va.

407, 409, 362 S.E.2d 696, 697 (1987) (quoting City of Lynchburg v. Chesapeake and Ohio

Ry., 170 Va. 108, 116, 195 S.E. 510, 514 (1938)).” Waselchalk, 421 S.E.2d at 425.

¶17.   For further supporting jurisdictions, see generally Breidert v. Southern Pac. Co., 77

Cal. Rptr. 262 (Cal. Ct. App. 1969); Dalton Enter., Inc. v. Boston & Marine Corp., 709

A.2d 611 (Conn. Sup. 1997); Louisville & N.R.R. v. Hagan, 131 S.W. 1018 (Ky. 1910);

Bangor & Aroostook R. Co. v. Daigle, 607 A.2d 533 (Me. 1992); Cinncinnati, N.O. & T.P.




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Ry Co. v. Sharp, 207 S.W. 728 (Tenn. 1918) and A & M Properties, Inc. v. Norfolk S.

Corp., 506 S.E.2d 632 (W.Va. 1998).

                                     CONCLUSION

¶18.   We hold today that a private party may not obtain a prescriptive easement across

active railroad tracks, that is, tracks “which carry persons or property for hire.” Under our

constitution, such tracks “shall be public highways.” Accordingly, the judgment of the

Chancery Court of George County is reversed and rendered.

¶19.   REVERSED AND RENDERED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




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