Opinion
No. 40505.
September 23, 1957.
1. Boundaries — reversionary rights — where monument describing property is stream, street or highway, conveyance passes title to center thereof.
With respect to reversionary rights, where the monument describing property is a stream, street or highway, a conveyance extends to and passes title to the center thereof.
2. Title — levees — conveyance passed title to center line of levee right of way previously condemned for levee purposes and holder of subsequent quitclaim deed obtained no reversionary rights to land so condemned for levee purposes.
Where right of way for a levee system had been taken by eminent domain proceedings, and planting corporation became owner of land on one side of levee under deed describing land as situated east of levee line and on the land side thereof, planting corporation had valid title up to the center line of levee right of way, and holder of quitclaim deed, which was subject to rights of Board of Mississippi Levee Commissioners and which attempted to convey reversionary rights to land condemned for levee purposes, obtained no title to the reversionary rights, if any, in the right of way of the Levee Commissioners, and could not cancel maintenance contract entered into by planting corporation with Levee Commissioners nor was holder of quitclaim deed entitled to recover from planting corporation for reasonable value for grazing its cattle on the right of way.
3. Adverse possession — actual possession for statutory period under deed to lands contiguous to levee right of way extended constructively to center line of levee right of way so as to constitute grantee as beneficiary of reversion in event of abandonment of levee, under theory of adverse possession.
Where planting corporation had gone into possession under its deed to land on east side of levee right of way and had occupied and claimed the land for more than ten years, such possession would be extended constructively to center line of levee right of way, and planting corporation would be the beneficiary of the reversion, in event of abandonment of levee under the theory of adverse possession.
4. Levees — Board of Levee Commissioners — authority and power to maintain levees by entering into grazing contracts.
Commissioners of Board of Levee Commissioners had full authority and power to maintain levees by entering into contract authorizing cattle grazing on levee right of way. Secs. 227-239, 232, Const. 1890; Sec. 702a, et seq., 33 U.S.C.A.
Headnotes as approved by Lee, J.
APPEAL from the Chancery Court of Washington County; S.B. THOMAS, Chancellor.
Kellner Kellner, Greenville, for appellant.
I. We contend first that the language of each deed limits the land conveyed, all of which including the right-of-way was owned by Mrs. Crawford, to the land outside the right-of-way.
II. We insist that by the language of the deeds there was no conveyance to the center of the levee or to the center of the right-of-way but a conveyance only of the lands west and east of the right-of-way of the Levee Board.
III. If mistaken in the foregoing, then resort must be had to a construction of the meaning of the two deeds because by no stretch of the imagination can it be said that each of the deeds by express language conveys to the center of the right-of-way whichever the appellees contend for, which is not clear from the record.
IV. The cardinal and controlling rule for the construction of a written instrument is that construction placed upon it by the parties to it. Sumter Lbr. Co., Inc. v. Skipper, 183 Miss. 595, 184 So. 296; Cummings v. Midstates Oil Corp., 193 Miss. 675, 9 So.2d 648; Nicholson v. Board of Miss. Levee Comrs., 203 Miss. 71, 33 So.2d 604.
V. It is settled in Mississippi that a person claiming title by adverse possession must show an occupation, actual or constructive, and a claim of ownership. Newman v. Smith (Miss.), 84 So.2d 512.
VI. The Chancellor erred in holding that the United States Gypsum Company and the Refuge Planting Company acquired title to the land by adverse possession. Nicholson v. Board of Miss. Levee Comrs., supra.
VII. If the Levee Board is permitted by leases, maintenance contracts or otherwise, to have its levees and the adjacent rights-of-way grazed under its rules and regulations by persons other than the owner and to the complete exclusion of the owner, as in this case, then the owner has been deprived of every right this Court said in the Nicholson case belonged to the owner, and the Levee Board has converted those rights into money. Furthermore, as in this case, the third party recipient of the lease or maintenance contract gains a profitable business at little or no cost to him. Furthermore, the Levee Board accomplishes what it contended for but was denied in the Nicholson case — absolute ownership of its rights-of-way.
Wynn, Hafter, Lake Tindall, Greenville, for appellee, Refuge Planting Company.
I. The Crawford conveyances to Gypsum and Strauss were each bounded by the center line of the main line Mississippi River Levee.
A. The provisions of the deeds are clear. Coleman v. White, 211 Miss. 29, 50 So.2d 715; Doyle v. Stanolind, 123 F.2d 900; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892.
B. A conveyance bounded by levee extends to the center line thereof. Nicholson v. Levee Board, 203 Miss. 71, 33 So.2d 604; Morgan v. Reading, 3 Sm. M. 366; The Steamboat Magnolia v. Marshall, 39 Miss. 109; Wineman v. Withers, 143 Miss. 537, 108 So. 708; New Orleans N.E. RR. Co. v. Morrison, 203 Miss. 791, 35 So.2d 68; Rio Bravo Oil Co. v. Weed, 121 Tex. 427; Jones v. N.O. N.E. RR. Co., 214 Miss. 804, 59 So.2d 541; 8 Am. Jur. pp. 763, 772; 11 C.J.S. pp. 575, 580.
C. There is no ambiguity in the deeds from Mrs. Crawford to Strauss and Gypsum. Doyle v. Stanolind, supra; New Orleans N.E. RR. Co. v. Morrison, supra; Rio Bravo Oil Co. v. Weed, supra; Gaston v. Mitchell, supra; 11 C.J.S. 581.
D. Furthermore, even if any ambiguity be read into the Crawford deed to Strauss, such ambiguity must be resolved in favor of the grantee. McCuiston v. Blaylock, 215 Miss. 504, 61 So.2d 332.
E. The deeds upon which appellant relies clearly recognize the previous conveyance to Strauss and Gypsum and that the grantor, Mrs. Crawford, had no present interest in the property involved. Smith v. Winston, 2 Howard 601; Learned v. Corley, 43 Miss. 687; Gaston v. Mitchell, supra.
II. If Refuge and Gypsum do not have record title, they have title by adverse possession. Jones v. N.O. N.E. RR. Co., supra; New Orleans N.E. RR. Co. v. Morrison, supra.
III. Even if Refuge has no title to reversion in right-of-way, occupation and use under authority from Board of Mississippi Levee Commissioners is defense to appellant's demand for money judgment.
IV. In reply to original brief of appellant. Arab Corp. v. Bruce, 50 F.2d 350; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 298.
C.S. Tindall, Jr., Greenville, for appellee, Board of Mississippi Levee Commissioners.
I. Appellant has no title to any portion of the lands embraced within appellee's easements within the property lines described in the answers of this appellee and the appellee, Refuge Planting Company.
II. Proper maintenance of the levee is essential to the protection of the lives and property of the people of the Mississippi Delta.
III. The Levee Board is charged with the duty and is given full power to maintain the levee and to perform all functions and powers necessary or directly conducive to its function of building, repairing and maintaining the main line levee. Chap. 1, Laws 1865.
IV. Although the Supreme Court has held that the Levee Board has acquired only an easement in the lands condemned by it, nevertheless the Supreme Court has consistently recognized the rule that the easement acquired by the Board extends to all uses directly or incidentally conducive to the advancement of the purposes for which the easement was acquired. Maintenance through maintenance contracts such as that utilized by the Board are essential and are directly conducive to the protection of the levee and the lives and property of the inhabitants behind it. Nicholson v. Levee Board, 203 Miss. 71, 33 So.2d 604; 17 Am. Jur., Sec. 96 p. 994; 18 Am. Jur., Sec. 115 p. 741; 28 C.J.S., Secs. 76(b), 94 (d) pp. 754, 775.
V. The appellant, assuming that she is the owner of the servient estate, may use the land only to the extent it does not interfere with the rights, power and duties of the Levee Board. The relief which appellant seeks, if granted, would interfere with the Levee Board's performance of its functions and duties and would create a serious hazard not only to the Levee Board but to the inhabitants of the Levee District. 17 Am. Jur., Sec. 108 p. 1003; 28 C.J.S., Secs. 72, 91 (a), 94, 96, 108 pp. 750, 771, 773, 778, 1003.
VI. The Act of 1865 vested the Levee Board with express authority and power to do all acts necessary in its opinion to secure the counties under its charge from overflow by the waters of the Mississippi River. The Court will not substitute its opinion as to what is necessary for the opinion of the Levee Board. Chap. 423, Laws 1950; 67 C.J.S., Secs. 105, 108(b), pp. 376, 391.
VII. The bill of complaint and appellant's proof admit that pasturing of the levee is beneficial and directly and reasonably related to the performance of the Levee Board's function of maintaining the levees. Having so admitted, appellant has in effect also admitted that the Board has the right to contract with individuals for the performance of this maintenance program. The right to contract with persons of the Board's choice and the right to contract is not limited to the right to contract with appellant. In any event, the proof shows that appellant does not and did not have the cattle or equipment required to maintain the levee.
VIII. On the basis of the arguments presented above, we submit that the easement acquired by the Board of Mississippi Levee Commissioners under the Act incorporating the Board, as amended, and under Section 233 of the Mississippi Constitution, carries with it the authority for the Board of Mississippi Levee Commissioners to contract just as it has in this case with Refuge Planting Company. Regardless of this fact, appellant must fail in this action inasmuch as the Levee Board, if it did not have the right, has acquired by prescription the right to maintain its easement by pasturing in the manner provided for under its maintenance contract with Refuge Planting Company. Sturges v. City of Meridian, 95 Miss. 35, 48 So. 620; Levee Comrs. v. Dancy, 65 Miss. 335, 3 So. 568; City of West Point v. Womack, 178 Miss. 808, 174 So. 241; Nicholson v. Myres, 170 Miss. 441, 154 So. 282; 19 C.J., Sec. 55(e) p. 891; 28 C.J.S., Secs. 8, 9(c), 10, 74-75 pp. 642, 644-46, 751-52.
IX. In reply to appellant's argument. Nicholson v. Board of Miss. Levee Comrs., 203 Miss. 71, 33 So.2d 604.
In her bill of complaint against the Board of Mississippi Levee Commissioners and Refuge Planting Company, Pearl E. Reynolds alleged that she is the owner of the fee of the levee right of way over the lands as therein described, and that the interest of the Levee Board therein amounts to an easement only. She prayed for cancellation of the maintenance contract to Refuge Planting Company and for the recovery of the reasonable value for grazing its cattle on the right of way.
At the conclusion of the evidence, the court held that the maintenance contract was a valid and reasonable exercise of the rights and powers of the Board; that deeds from George C. and Margaret Richardson Crawford to U.S. Gypsum Company and to D.S. Strauss divested grantors of all title to the property in question and Mrs. Crawford's subsequent quitclaim deeds to the Reynolds passed no title therein; and that Refuge Planting Company had obtained title to the land east of the center line of the levee by virtue of a conveyance of date of August 11, 1936, and by adverse possession for more than ten years. The final decree dismissed the original bill with prejudice, and cancelled the conveyances of the Reynolds, as prayed for in the cross-bill. Mrs. Reynolds appealed.
The substantial facts in the background of this litigation appear as follows: The Board of Mississippi Levee Commissioners was incorporated by an Act of the Legislature. Chapter 1, Laws 1865. Article 11, which includes Sections 227 to 239, inclusive, Constitution of 1890, provided for the maintenance of a levee system in the State. The power to appropriate private property was granted. Section 233 thereof. Many years ago a right of way for the levee system, approximately five miles long, was taken by eminent domain through Refuge Plantation in Washington County. As a consequence, the plantation was split into two parts with several thousand acres on each side of the levee.
On December 30, 1935, George C. Crawford and wife, Margaret R. Crawford, the then owners of the plantation, conveyed to the U.S. Gypsum Company, a Delaware corporation, "That part of Refuge Plantation in Washington County, Mississippi, located on the riverside of the levee as now located, and all secretions thereto," (describing the same according to section, township and range.) By mesne conveyances, this property passed to U.S. Gypsum Company, an Illinois corporation.
On August 11, 1936, Margaret R. Crawford conveyed to D.S. Strauss "All those parts of Refuge Plantation situated east of the levee line of the Board of Mississippi Levee Commissioners, and on the land side thereof", (describing the same according to governmental subdivisions.) By mesne conveyances this property passed to Refuge Planting Company, a corporation.
Millions of dollars, derived from local taxation and appropriation of the Federal Government, had been spent in building the levee system. Following the disastrous flood in 1927, the Federal Government, by Act of Congress of date of May 15, 1928, recognized its responsibility and assumed the major portion of the expenses therefor, but required the cooperation of the Levee Board in the proper maintenance of the levees.
The cost of maintenance of the levee system entailed a substantial outlay annually. As a result of long experience, the Board many years ago found that the most satisfactory and cheapest method of maintenance was to enter into contracts whereby cattle were grazed on the levee right of way at proper times and under proper controls, together with the maintenance of proper fences and cattle gaps, and the use of mowing machines and other machinery and labor. This policy has been followed since; and Refuge Planting Company, for more than six years, has been the contractor on this link.
On October 13, 1948, and November 9, 1948, T.P. Reynolds obtained from Margaret Richardson Crawford quitclaim deeds as follows: "All that part of Section 1, Township 17, Range 8 West, and all that part of Sections 3, 4, 12, and 13, Township 17, Range 9 West, formerly owned by me and condemned for levee purposes by The Board of Mississippi Levee Commissioners," and "All that part of Section 5, 6, 7, 8, 9, and 10, Township 17, Range 9 West, formerly owned by me and condemned for levee purposes by The Board of Mississippi Levee Commissioners." In each instance it was recited that "This conveyance is made subject to any rights of the Board of Mississippi Levee Commissioners." On October 15, 1953, T.P. Reynolds conveyed and quitclaimed the above described land to his wife, Pearl E. Reynolds, and subsequently on November 23, 1955, assigned to her all of his rights of every nature in the land.
The questions presented to the trial court and likewise raised in this appeal are whether the Reynolds acquired a fee title to the right of way by reason of their quitclaim deeds; whether Refuge Planting Company and U.S. Gypsum Company have acquired title thereto by adverse possession; and whether the Levee Board, by maintenance contracts, can exclude the adjacent owner from certain use of the right of way.
It will be noted that the deed to U.S. Gypsum Company was for "that part of Refuge Plantation * * * located on the river side of the levee as now located * * *", and to Strauss "All those parts of Refuge Plantation situated east of the levee line of the Board of Mississippi Levee Commissioners, and on the land side thereof."
The question then is whether these deeds passed the fee to the center of the levee, subject to the easement thereon.
In New Orleans Northeastern Railroad Company v. Morrison, 203 Miss. 791, 35 So.2d 68, the trial court held that the railroad company's two-hundred-foot right of way was a mere easement; that the heirs of the grantor owned the minerals under the right of way; and that the grantees and lessees of mineral interests had valid title thereto up to the center line of the right of way. In the partition deeds of the heirs among themselves, the allotments were described as lying "East (or West) of the * * * railroad." The ninth syllabus succinctly stated the general rule as follows: "Generally conveyances of land bordering on a railroad easement of right of way carry title in fee to the center line of the easement as to sub-surface minerals, and reversionary rights to the surface." (Emphasis supplied.) In that case, the heirs contended that they partited only such lands as lay outside the easement strip, and claimed the minerals under the residuary strip as tenants in common. In rejecting this contention, the opinion said: "The contention is ingenious, but upon the same vehicle by which we transport their rights beyond the side lines and unto the center, we cannot deny to their grantees and lessees equal passage."
(Hn 1) The above rule as to reversionary rights to the surface in respect to land bordering on a railroad right of way, conforms to the rule that, where the monument is a stream, street or highway, the conveyance extends to and passes the title to the center thereof. 11 C.J.S., Boundaries, Section 31, p. 575, and Section 35, p. 580; 8 Am. Jur., Boundaries, Section 25, p. 763 and Section 36, p. 772; Morgan, et al. v. Reading, 11 Miss. 366, holding that the middle of the Mississippi River was the true western boundary line of the Mississippi territory; the Steamship Magnolia v. Marshall, 39 Miss. 109; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Panhandle Oil Company v. Trigg, 148 Miss. 306, 114 So. 625. The reasons for the rule are set out in detail in 6 Thompson, Real Property (1940), Section 3396, pp. 606-7.
(Hn 2) The principle which was announced in New Orleans and Northeastern Railroad Company v. Morrison, supra, was reaffirmed in Jones v. New Orleans and Northeastern Railroad Company, 214 Miss. 804, 59 So.2d 541, where the rule in Thompson on Real Property, supra, was cited with approval. Thus the Reynolds, by reason of their quitclaim deeds from Mrs. Crawford, obtained no title to the reversionary rights, if any, in the right of way of the Levee Board.
Besides, following the execution to them of deeds in 1935 and 1936, the U.S. Gypsum Company and the Refuge Planting Company and their predecessors in title went into possession of their lands, respectively, on the west and east sides of the levee right of way, and have occupied and claimed the same ever since, more than ten years prior to the filing of the bill of complaint in this cause on November 23, 1956.
One of the questions in Jones v. New Orleans and Northeastern Railroad Company, supra, was whether abutting landowners, who acquired their title by adverse possession, owned up to the center line of the adjoining railroad right of way. The proof showed that the railroad company had been in possession of its two-hundred-foot right of way and easement and a like strip west of the right of way for seventy years, and that Cecil Travis and others, claimants to the minerals to the center of the right of way as appurtenant to their ownership, and their predecessors in title, had been in adverse possession of the land abutting and adjacent to the right of way for more than thirty-one years. The opinion said that: "The possession of the same under those circumstances should be extended constructively to the center line on the respective sides of the railroad right of way." Ample documentation for this principle appears in the opinion.
(Hn 3) Under the present record, if on yesterday the levee had ceased to exist as such and a reversion of interest had thereby occurred, obviously under the foregoing principle, the Refuge Planting Company and U.S. Gypsum Company would have been the beneficiaries.
Appellant relies strongly on Nicholson v. Board of Mississippi Levee Commissioners, 203 Miss. 71, 33 So.2d 604. In that case it was held that the appellee there, by its eminent domain action, did not obtain the fee to the land but an easement; that the timber thereon was not needed or usable by the Board, and that its removal did not interfere with the performance of the duties and powers of the Commissioners, who refused to permit the removal and instead sold it to other parties; and that the timber, in such circumstances, was the property of Mrs. Nicholson.
(Hn 4) Even if the appellant here was in fact the owner, the factual situation is altogether different. Under Section 232 of the Constitution, the Commissioners have the "supervision of the erection, repair, and maintenance of the levees in their respective districts." The maintenance of the levees is a large responsibility. If the policy of the commissioners in reference to maintenance, adopted after long experience, can be ignored, and if each owner of the property adjacent to the levee has the innate right to contract for the maintenance of the levee alongside his property, obviously the successful and economical maintenance thereof could be seriously impaired and even destroyed. The Commissioners had full authority and power to maintain the levees by the selected method, and the appellant had no right whatever to have the contract set aside.
It follows that the decree of the learned chancellor was correct and the cause is therefore affirmed.
Affirmed.
Roberds, P.J., and Holmes, Arrington and Ethridge, JJ., concur.