Opinion
No. 40038.
March 12, 1956.
1. Easements — evidence — adverse possession — passageway established by — cause remanded for ascertainment of true dimensions and boundaries on the ground.
In suit by complainants to be declared owners of passageway, to require defendants to remove therefrom a fence and stakes, and to enjoin defendants perpetually from obstructing passageway, complainants proved right to an unobstructed easement by adverse possession for egress and ingress to that portion of passageway situated on defendant's land; but because of the uncertainty of the location of the existing passageway as described in Trial Court's decree, the cause was reversed and remanded in order that the true dimensions and boundaries of the existing passageway might be determined, fixed and designated on the ground.
Headnote as approved by Lee, J.
APPEAL from the Chancery Court of Yalobusha County; HERBERT HOLMES, Chancellor.
Smallwood, Sumners Hickman, Oxford, for appellant, James G. Maynor.
I. Appellees must rely on the strength of their title and not on the weakness of appellants. DeLee v. Anderson, 216 Miss. 888, 63 So.2d 393.
II. The Court erred in excluding the evidence of Walter Pettis. 20 Am. Jur., Secs. 784, 932, 982 p. 830.
III. The decree of the Court takes as an alley a strip not actually contiguous with any call in complainants' deed.
IV. The Court erred in leaving an indefinite line by adverse possession in its decree, when line is definitely established by descriptions and calls within deeds. Dunn v. Stratton, 160 Miss. 1, 133 So. 140, 142; Kersch v. Lyons, 195 Miss. 598, 15 So.2d 768; Lawrence v. Byrnes, 188 Miss. 127, 193 So. 622, 624; Smith Lbr. Co. v. Skipper, 183 Miss. 595, 184 So. 296, 298 (1-4); Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Snowden v. Hanley, 195 Miss. 682, 16 So.2d 24.
Kermit R. Cofer, Water Valley, for appellant, Mrs. Versal Riggs.
I. The Court's decision and decree entered in the cause are contrary to the law and the overwhelming weight of the evidence.
II. The Court erred in excluding the evidence of Walter Pettis, the surveyor.
III. The Court erred in holding that there was no survey and no identification of lines, when paved streets mark two sides of appellants' properties, and all deeds refer to, and are in accordance with, Mercer's map of Water Valley.
IV. The Court erred in establishing a line by adverse possession when all deeds have specific calls and with sufficient land to answer the calls of all deeds, and in entering decree for appellees beyond the calls of their deeds.
V. The Court erred in leaving an indefinite line by adverse possession, in its decree, when line is definitely established by descriptions and calls within deeds.
Collation of authorities: Nicholson v. Myers, 170 Miss. 441, 154 So. 282; Morgan v. Collins School House, 160 Miss. 321, 133 So. 675; Adams v. Guice, 30 Miss. 397; Barron v. Federal Land Bank of N.O., 182 Miss. 50, 180 So. 74; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Coleman v. L. M. Land Mineral Corp. (Miss.), 54 So.2d 213; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Harris v. Lollar (Miss.), 17 So.2d 325; Sec. 711, Code 1942.
John P. Horan, Water Valley, for appellees.
I. At the time H.A. Gant conveyed the northern portion of Lot 342 to A.J. Law, he reserved the south part thereof on which the alleyway in question was, and is now, located and stipulated that the measurement in feet was approximately correct but not intended to be accurate. By so doing, he made this alleyway the south boundary of the land then being conveyed. And when A.J. Law executed a deed to Miss Alma Tarver, he stipulated that the reservation made in the deed from H.A. Gant to A.J. Law was reserved in the deed then being executed and was in noway to interfere with the alleyway in the rear of said lot. In such case, there could arise a conflict in description, courses, distances, and in such case courses and distances are controlled by, and must yield to, monument whether natural or artificial. Ball v. City of Louisville, 218 Miss. 867, 56 So.2d 4; Potts v. Canton Cotton Compress Warehouse Co., 70 Miss. 462, 12 So. 147; Holcomb v. McClure, 211 Miss. 849, 52 So.2d 922; 11 C.J.S., Sec. 53 p. 622.
II. The appellees' home was built, and is located, on a mound above the level of the street and it was a home and was occupied in 1900 and prior thereto at a time there was no improvement on Lot 342 and on April 27, 1901, at the time of the conveyance by H.A. Gant to Luke S. Boydston, predecessor in title to the appellees, this alleyway was in existence and being used by the predecessors in title by the appellees who continued to use the same for the convenience and use of the property now owned and occupied by the appellees. In such case, the appellees and their predecessors acquired an absolute title to said land by adverse possession. Lowi v. David, 134 Miss. 296, 98 So. 684; Vance v. Wilson, 220 Miss. 18, 70 So.2d 55.
III. The overwhelming weight of the evidence shows conclusively that this alleyway in question has been used constantly as an alleyway for the use and benefit of the property owned by the appellees for more than half a century. In such case, the use of said alleyway ripened into an easement by prescription. Browder v. Graham, 204 Miss. 773, 38 So.2d 188; Lindsey v. Shaw, 210 Miss. 333, 41 So.2d 589.
IV. The Chancellor heard all the proof and had the matter under advisement for study and decree and found the facts in favor of the appellees holding that they owned the property in question by color of title and adverse possession, and that the alley had been in use where it is now located for more than fifity years. In such case, the findings of the Chancellor would not be disturbed by the Supreme Court on appeal. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So.2d 6; Bradley v. Howell, 161 Miss. 346, 133 So. 660; Cole v. Standard Life Ins. Co., 170 Miss. 330, 154 So. 353; Partee v. Bedford, 51 Miss. 84; Chapman v. Federal Land Bank of N.O. (Miss.), 185 So. 586; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; Evans v. City of Jackson, 201 Miss. 14, 28 So.2d 249; Greenville Brick Improvement Co. v. Hyatt Smith Mfg. Co. (Miss.), 11 So. 471.
V. It is argued by the appellants that because part of the north part of Lot 342 was sold for taxes the appellees lost whatever right they had in the alley, but there is no proof in the record that the land was sold for taxes. Selden v. Coffee, 55 Miss. 41; Plenny v. Ferrill (Miss.), 11 So. 6; W.C. Early Co. v. Long, 89 Miss. 285, 42 So. 348.
Mrs. Minnie L. Tucker and Mrs. Carolyn T. Pinkston, complainants in the court below, own lot 341 west of railroad as per J.W. Mercer's map of the City of Water Valley and also a strip of land on the south side of lot 342 with an eight-foot front on Church or Herring Street, running back east the full length of lot 342 to the A.J. Law line, where it is thirteen and one-half feet wide. The balance of lot 342, to the north of the above described parcel, is owned by Mrs. Versal Riggs and James G. Maynor and wife, the defendants, the west part by the former and the east part by the latter.
The controversy arose from conflicting claims concerning a passageway between the properties of the parties.
The complainants, by their original and amended bills, sought to have themselves declared to be the owners of the passageway, and to require the defendants to remove therefrom a fence and stakes, which they had erected, and to enjoin them perpetually from obstructing the passageway. The answer and cross bill of the defendants put these questions in issue.
The final decree, among other things, recited that "there is an alley-way running east and west from Herring Street on the west, back east to the west line of what was known as the Law lot, being 8 feet wide north and south on the east line of Herring Street and 13 1/2 feet wide on the east end of the said alley-way, and that said alley-way is immediately north of the base of an enbankment on the north side of the dwelling house of the complainants". It adjudicated that the complainants are entitled to have the passageway kept open for use by them and others. It also directed the removal of the fence from the driveway, and the removal of all stakes and other obstructions from the land of complainants, and perpetually enjoined the defendants from trespassing on the alley or driveway.
The defendants appealed.
Mrs. Tucker has lived in the home on the complainants' property since 1912. The Maynor and Riggs homes were not built until about 1924, and were purchased by the respective owners in September 1952 and in January 1953.
The proof showed that the complainants and their predecessors in title, for a period of 40 to 50 years, have made use of a strip of land between their home and the homes of the defendants for the purpose of egress and ingress from Church or Herring Street. Some of the defendants' predecessors in title have recognized and also used this strip of land for that purpose.
Mrs. Riggs built a fence in or upon the passageway, or a part thereof, and the Maynors were preparing to do likewise, when the complainants filed their bill.
There is considerable confusion as to the exact location of the passageway on the ground. Seemingly it, or a part thereof, is on land to which the defendants have the paper title. Be that as it may, however, the complainants, from their long use, much more than ten years, have acquired the right to an unobstructed easement thereover for egress and ingress. University of Miss. v. Gotten, 119 Miss. 246, 80 So. 322; Lindsey v. Shaw, et ux. 210 Miss. 333, 49 So.2d 580; Black v. Condon, et al, 214 Miss. 51, 58 So.2d 93.
R.M. Short, a surveyor appointed by the court to make a survey, did so and filed it with the court. But the complainants objected to its introduction on the ground that Short was not present to identify the map and submit to cross examination. The court overruled the objection and let the survey go in for whatever it was worth. Walter Pettis, another surveyor, at the instance of the defendants, made a survey of the property, but because he could not tell where the north line of lot 342 was at the time of the conveyance from Grant to A.J. Law, the court, on objection of the complainants, excluded his survey.
Thus there was no satisfactory survey by which the location of the passageway on the ground could be determined. It must be so located before the defendants can, with certainty, comply with the terms of the decree. Besides, the defendants have the right to use the passageway for egress and ingress, if they desire, and such use will not constitute trespass.
(Hn 1) There was ample warrant for the decree of the learned chancellor insofar as it adjudicated the existence of the passageway; but the cause must be reversed and remanded because of the uncertainty of the location of the existing passageway, as described in the decree. Undoubtedly at least a part of the passageway, to which the appellees proved their right of use by adverse possession, is situated on lands of the appellants. Consequently to prevent a cloud on the title and in order to apprise the parties of their respective rights and duties, it is necessary that the true dimensions and boundaries of the existing passageway shall be determined, fixed and designated on the ground. This purpose should be accomplished by a proper survey, or such other means or method as will assure substantial accuracy.
Affirmed in part, and in part reversed and remanded with directions.
McGehee, C.J., and Arrington, Ethridge and Gillespie, JJ., concur.