                               IN THE COURT OF APPEALS
                                        OF THE
                                 STATE OF MISSISSIPPI
                                       NO. 98-CA-00494 COA
GREGORY A. SHARP AND WIFE, VICKIE LYNN SHARP                                            APPELLANTS
v.
SHIRLEY DOUGLAS WHITE                                                                       APPELLEE

DATE OF JUDGMENT:           12/08/1997
TRIAL JUDGE:                HON. ROBERT L. LANCASTER
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:    GEORGE C. MCKEE
ATTORNEY FOR APPELLEE:      BEN F. HILBUN JR.
NATURE OF THE CASE:         CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:    APPELLEE WAS AWARDED A PRESCRIPTIVE
                            EASEMENT AND DAMAGES OF $2,450.
DISPOSITION:                AFFIRMED - 12/30/98
MOTION FOR REHEARING FILED: 1/13/99
CERTIORARI FILED:           4/20/99
MANDATE ISSUED:




BEFORE THOMAS, P.J., COLEMAN, AND HINKEBEIN, JJ.

HINKEBEIN, J., FOR THE COURT:




¶1. Dissatisfied with the Oktibbeha County Chancery Court's decision finding appellee Shirley Douglas
White to hold a prescriptive easement across their property, Gregory Sharp and his wife, Vicki Sharp,
assign the following points of error to the chancellor's decision:




I. THE CHANCERY COURT OF OKTIBBEHA COUNTY MANIFESTLY ERRED BY
HOLDING THAT THE PLAINTIFF HAD A PRESCRIPTIVE EASEMENT WHICH WAS
DOMINANT ACROSS THE DEFENDANT'S LAND?
II. WHERE THE EVIDENCE SHOWED THAT ALL PRIOR ACCESS BETWEEN THE
PARTIES' PREDECESSORS IN TITLE WAS PERMISSIVE AND THE PREDECESSORS
WERE RELATED BY MARRIAGE, THE COURT MANIFESTLY ERRED IN HOLDING
THAT THERE WAS A PRESUMPTION THAT ACCESS WAS UNDER CLAIM OF RIGHT
AND REQUIRING THE DEFENDANT TO REBUT SAID PRESUMPTION.




¶2. Holding these assignments of error to be without merit, we affirm the judgment of the chancery court.

                                                   FACTS

¶3. This case illustrates how the "handshake agreement" of a generation past can easily become the
litigation of today. In or about 1962, the late Leon Douglas purchased a tract of land in the East Half of the
Southeast Quarter of Section 10, Township 19, Range 12 in Oktibbeha County, Mississippi. Adjoining the
Douglas property was a tract of land owned by the late J. B. Tenhet in the West Half of the Southwest
Quarter of Section 11, Township 19, Range 12. The record reflects that Leon Douglas and J. B. Tenhet
were cousins, friends, and may have occasionally assisted each other in their respective farming operations.
In order to access some of his farmland, Douglas and his hired hands would have to navigate a creek,
which often resulted in a stranded tractor. The creek was also the source of flooding on the Tenhet
property. Shortly after Douglas's purchase of the land, Tenhet presented a proposal. The gist of the deal
was that the men would construct a gravel road across Tenhet's property that would give Douglas easy
access to his farmland. They would also build a levee to limit the flooding from the creek. According to the
testimony of Willie Cooper, who worked for Douglas at the time, these projects were accomplished in two
weeks using trucks, plows and other equipment belonging to both landowners. Cooper also testified that he
and Douglas would regularly use the road and were not required to ask Tenhet's permission. Both Tenhet
and Douglas took responsibility for maintaining the newly constructed road. The agreement, while never put
in writing, existed for approximately thirty years without incident and beyond the deaths of both Leon
Douglas and J.B. Tenhet.

¶4. After Leon Douglas's death, his property passed to his widow Shirley Douglas White, who is the
appellee in the case sub judice. After J. B. Tenhet's death, his property was sold to the appellants, Gregory
Sharp and his wife Vickie. The 1992 sale was made on behalf of the estate of J. B. Tenhet by his son,
Richard Tenhet, and his wife, Geraldine, who is also a realtor. Both Richard and Geraldine testified that
prior to the sale they informed the Sharps that the gravel road was access to Mrs. White's property and that
Gregory Sharp had informed them that it would not be a problem. Geraldine testified that she understood
Mrs. White's access to be a prescriptive easement. Gregory Sharp testified that he understood Mrs.
White's access to be a permissive use, which he allowed her and the farmers who leased her property to
exercise up until 1995.

¶5. In 1995, Gregory notified Mrs. White that he was going to cut off her access to the road and that she
would have to rely on another legal easement which had not been used for years. Gregory and Mrs. White
eventually entered into a lease, which allowed her to use the road for the 1996 farming season in exchange
for nominal consideration. After that lease expired on December 31, 1996, Gregory again informed Mrs.
White he would not give her access to farm her land for the coming growing season. The record reveals that
Gregory offered to renew the lease if Mrs. White agreed to a series of proposals which involved him being
able to purchase her property upon her death. Since Mrs. White wished for her son to inherit the property,
she declined Gregory's proposals. As the result of Gregory's refusal to allow her to use the road, Mrs.
White was unable to rent forty-nine acres of her farmland for the 1997 farm season. The record reveals that
Mrs. White was to have received $50 per acre in rental for the land in question, for a total of $2450. On
February 14, 1997, Mrs. White filed a complaint against Gregory in which she requested the court to
confirm her right to use the road subject to an existing prescriptive easement. The chancellor heard
testimony in the case on September 25, 1997, and issued a memorandum opinion on November, 18, 1997.
The chancellor found that since Leon Douglas had helped construct the road across J. B. Tenhet's land,
Douglas's use of the road was under a claim of right and not a permissive or gratuitous use. As such, the
chancellor found that Leon Douglas had openly and continuously used the road far in excess of the ten
years required to vest an easement by prescription. In an order dated December 8, 1997, the chancellor
stated that Mrs. White had a valid easement and ordered the Sharps to pay damages of $2450 plus all
court costs. Upon denial of their motion for a new trial, the Sharps perfected their appeal before this court.




                                               DISCUSSION

I. THE CHANCERY COURT OF OKTIBBEHA COUNTY MANIFESTLY ERRED BY
HOLDING THAT THE PLAINTIFF HAD A PRESCRIPTIVE EASEMENT WHICH WAS
DOMINANT ACROSS THE DEFENDANT'S LAND?

II. WHERE THE EVIDENCE SHOWED THAT ALL PRIOR ACCESS BETWEEN THE
PARTIES' PREDECESSORS IN TITLE WAS PERMISSIVE AND THE PREDECESSORS
WERE RELATED BY MARRIAGE, THE COURT MANIFESTLY ERRED IN HOLDING
THAT THERE WAS A PRESUMPTION THAT ACCESS WAS UNDER CLAIM OF RIGHT
AND REQUIRING THE DEFENDANT TO REBUT SAID PRESUMPTION.

¶6. The two assignments of error offered by the Sharps essentially deal with the same concerns and,
accordingly, will be addressed together. The Sharps argue that the chancellor erred in finding that a
prescriptive easement existed, when the facts equally supported a finding of a permissive use that was
subject to revocation at any time. White counters that the chancellor's opinion is consistent with facts and
testimony supporting a prescriptive easement.

¶7. This Court always reviews a chancellor's findings of fact, but we do not disturb the factual findings of a
chancellor unless such findings are manifestly wrong or clearly erroneous. Bowers Window and Door Co.,
Inc. v. Dearman, 549 So.2d 1309 (Miss.1989). This standard has also been explained as follows:
Whenever there is substantial evidence in the record to support the chancellor's findings of fact, those
findings must be affirmed here. Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Culbreath
v. Johnson, 427 So.2d 705, 707-08 (Miss.1983). If a chancellor fails to make findings on issues of fact,
this Court assumes that the issues were resolved in favor of the appellee. Byrant v. Cameron, 473 So.2d
174, 179 (Miss.1985).

¶8. The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse
possession of land. Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152 (Miss. 1992)
(citing Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112, 117 (Miss. 1987)). As such, a person
seeking to establish a prescriptive easement must show that possession was "(1) under claim of ownership;
(2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten
years; (5) exclusive; and (6) peaceful." West v. Brewer, 579 So. 2d 1261, 1262 (Miss. 1991) (quoting
Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990)). "[U]se by express or implied permission or
license, no matter how long continued, cannot ripen into an easement by prescription since adverse use is
lacking." Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992). However a long established principle under
Mississippi law is that "[a]n easement claimed as a right and used continuously, openly, and for a period of
ten years or more, is sufficient to establish a right by prescription equivalent to a deed conveying such right."
Rutland v. Stewart, 630 So. 2d 996, 999 (Miss. 1994) (citing Jenkins v. McQuaid, 153 Miss. 185, 193,
120 So. 814, 816 (1928)).

¶9. Based on the testimony at trial, the chancellor found that Leon Douglas's use of the road across J. B.
Tenhet's land was under a claim of right. This was supported by the testimony of Willie Cooper, who had
assisted Douglas in construction of the road. Cooper attested to an oral agreement between Douglas and
Tenhet, as well as the significant contribution in time and resources made by Douglas in constructing the
road back in the early sixties. The record also reveals that Leon Douglas used the road openly and
continuously for thirty years, far in excess of the statutorily required period. Miss. Code Ann. § 15-1-13
(Rev. 1995). As such, the chancellor found the requirements of a prescriptive easement under a claim of
right were met by Mrs. White. Rutland, 630 So. 2d at 999. We find the chancellor's decision supported by
substantial evidence with no evidence of manifest error. In the absence of such error or abuse of discretion,
this Court will not disturb the factual findings of the chancellor. Accordingly, we find no merit to these
assignments of error.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
STATUTORY PENALTIES AND INTEREST ARE AWARDED THE APPELLEE.

BRIDGES, C.J., THOMAS, P.J., COLEMAN, DIAZ, HERRING, KING, AND PAYNE, JJ.,
CONCUR. McMILLIN, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY SOUTHWICK, J.




McMILLIN, P.J., DISSENTING:




¶11. I respectfully dissent. Leon Douglas's initial use of the road across Tenhet's property was by Tenhet's
permission. The majority concedes this, finding that Douglas's long years of using the road across Tenhet's
property began with a figurative, if not literal, handshake.

      A use that has its inception in the permission of the owner will continue as such until a distinct and
      positive assertion of a right hostile to the owner is brought home to him by words or acts.

Patterson v. Harris, 239 Miss. 774, 125 So. 2d 545, 550 (1960) (citation omitted). There is no
exception to this rule based on either (a) the fact that the permittee expended his own funds in constructing
or maintaining the roadway, or (b) the fact that the permissive use continued for so long a time that it seems
unconscionable to permit its summary termination.

¶12. The majority suggests that this fundamental concept of law concerning permissive easements can be
overlooked based on the conclusion that Douglas's (and White's) use of the road was under a claim of right.
Prescriptive easement claims are subject to essentially the same legal analysis as adverse possession claims.
Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152 (Miss. 1992). Occupying the disputed
property under a claim of right is but one of multiple elements of an adverse possession claim. The
possession must not only be under a claim of right, the basis for the claim must be hostile to the interest of
the record owner. Dethlefs v. Beau Maison Development Corp., 511 So. 2d 112, 117 (Miss. 1987).
"Hostile" in this sense does not necessarily involve proof of angry exchanges or the existence of hard feelings
between the litigants. Rather, the concept of "hostility" means that the claim asserted by the adverse
possessor encompasses a total rejection of any right in the record owner (or others) to interfere with his
possession. In this case, Douglas's claim of right to the easement depended for its very existence on
Tenhet's consent. It is the absence of the requisite hostility to Tenhet's superior title that is fatal to White's
claim.

¶13. The needed hostility to Tenhet's superior title was lacking at the inception of the easement and there is
nothing in the record to indicate that, at some point after the permissive use began (a) Tenhet indicated a
desire to end Douglas's use of the road but Douglas thereafter persisted in using the easement, or (b)
Douglas informed Tenhet by some unequivocal means that he was of the opinion that his continued use of
the easement no longer depended on its consensual origin for its vitality.

¶14. Permitting the cancellation of this permissive easement after so long a time may seem, at first blush, to
be a harsh result. Nevertheless, it is clearly the result mandated by the applicable law. Had Douglas,
apparently untutored in the law of real property, availed himself of even a minimal amount of legal
consultation regarding the advisability of depending on Tenhet's good graces for access to his property,
there is little doubt that he could have been easily informed of his predicament and the risks inherent in
relying upon such a legally tenuous means of entry to his land. Whether he, in fact, obtained such advice and
chose to assume the risk of an unanticipated termination at any moment or continued for over thirty years
completely uninformed as to his legal rights in the circumstances, it is difficult to conclude that the result the
law compels in this case is, after all, particularly harsh. I would reverse and render the chancellor's
judgment.

SOUTHWICK, J., JOINS THIS SEPARATE WRITTEN OPINION.
