## Facts

- In 1937, a bank owned the tract later owned by Joseph A. Kwentus and Karen Richardson and held an undivided one-third interest in the adjacent tract later owned by Chester King Burnham.
- The bank sold its one-third interest in the adjacent tract, severing unity of title and leaving the conveyed tract landlocked with practical access only across the bank’s remaining land.
- Burnham and his predecessors accessed the landlocked tract for decades using Ridge Road, a private road crossing what later became the Kwentus property.
- The prior servient owners (the Brannan family) allowed Burnham’s use of Ridge Road as a neighborly courtesy rather than as recognition of a legal right.
- In 2008, Kwentus and Richardson purchased the servient property and directed Burnham to stop using Ridge Road and instead use a newer access road across their property.
- Burnham filed a chancery action seeking a prescriptive easement over Ridge Road, or alternatively an easement by necessity to reach his land.
- The chancellor denied a prescriptive easement (finding permissive use) but granted an easement by necessity over the newer road; Burnham appealed and Kwentus cross-appealed.

## Issues

1. Whether Burnham proved the adverse use required to establish a prescriptive easement over Ridge Road.
2. Whether an easement by necessity arose from the 1937 severance and continued due to ongoing necessity of access to the landlocked tract.

## Decision

- The court affirmed the denial of a prescriptive easement because Burnham’s use of Ridge Road was permissive, not adverse.
- The court affirmed the grant of an easement by necessity, holding it arose upon the 1937 conveyance that left the parcel landlocked and continued so long as necessity persisted.
- The judgment was affirmed on both the direct appeal and the cross-appeal.

## Legal Principles

- A prescriptive easement requires open, notorious, continuous, and adverse use for the statutory period; permissive use, even if longstanding, cannot ripen into a prescriptive right.
- Adversity is the essential element of prescription; use allowed as neighborly accommodation is treated as permissive.
- An easement by necessity is implied when a common owner’s conveyance severs unity of title and leaves a parcel landlocked; the law presumes an implied grant of a right-of-way at the time of severance.
- An easement by necessity is appurtenant and continues with the land only while the necessity for access remains.

## Conclusion

The court held that decades of neighbor-permitted travel over a private road did not establish a prescriptive easement, but the landlocked parcel retained access through an easement by necessity implied from the 1937 severance and continuing necessity.


Burnham v. Kwentus, 174 So. 3d 286 (Miss. Ct. App. 2015)