City of Vicksburg v. Marshall

Citation59 Miss. 563
CourtUnited States State Supreme Court of Mississippi
Decision Date10 May 1882
PartiesCITY OF VICKSBURG v. THOMAS A. MARSHALL

Appeal from the Chancery Court of Warren County Hon. Upton M. Young Chancellor, did not preside in this case, but Counsellor Thomas Catchings acted as Chancellor, pro hac vice.

Wm. M Pinckard purchased from Wm. Vick seventy-six acres of land bounded by a line beginning at a post on the bank of the Mississippi River, and intersected by the Warrenton Road which began at the southern end of Washington Street in the city of Vicksburg. Having the tract laid off into streets squares and lots, he called it "Pinckardia," and put the lots upon the market. On May 11, 1836, he conveyed square 29 to N.H. Rapplege, through whom and several intermediate vendees lots 200, 201, 206 and 207, on which a fence was built and residence erected by Rapplege, passed in 1838 to John P. Coffin. On February 26, 1840, the "Plat of Pinckardia," was recorded in a deed-book in the office of the Probate Clerk of Warren County.

[SEE MAP IN ORIGINAL.]

On the opposite page is a part of the "Plat of Pinckardia" with details added from subsequent surveys; for instance, the width of Washington Street, the old Warrenton Road, south of Veto Street, is given on the original plat as sixty-six feet and its course is omitted, while, on this map, the breadth is fixed at sixty feet and the deflection noted as seven degrees westward. The map does not include the river on which the western squares do not border, but two or three blocks intervene. The position of the old city with reference to Pinckardia is indicated by the word "Vicksburg."

On March 12, 1850, the four lots were conveyed by De Wolf and Lee, sub-vendees under Coffin, to the appellee, who has mortgaged them five times during a period of thirty years always using the "Pinckardia" description by which the property was conveyed to him and once describing it as bounded by Washington, Warren and Mulberry Streets, and once as fronting on the west side of Washington Street. When the appellee purchased, he removed the fence eastward to the bottom of the hill which comprises the property, handsomely terraced the grounds, and adorned them with shrubbery and rare plants, making it one of the loveliest spots among the hills of Vicksburg.

In the summer of 1879, while the appellee was at a watering-place the city of Vicksburg, having induced the Vicksburg and Meridian Railroad Company to build a culvert, and graded the street over the track, was proceeding to straighten the pavement by digging down part of the improvements, when his agent enjoined the workmen upon the allegations of ownership by deed and by prescription. The street commissioner in charge of the work then compromised the matter with the agent, agreeing to cut only a portion of the hill; which was done, and the appellee built the brick wall X N Y shown on the map. The city did not ratify this settlement, but insisted upon cutting away part of the wall and hill and improvements to straighten the street as indicated on the map, leaving a precipice before the appellee's residence, in place of his landing N and ZZ his handsome steps; and the appellee filed a supplemental bill setting up the settlement in addition to the other reasons for injunction.

Many surveys have been made to ascertain the bearing of Washington Street south of Veto Street, and they fixed the dotted line on the map at lots 206 and 207 as its western side; but for the purposes of the city in this controversy T. G. Dabney, a civil engineer, resurveyed the street. Beginning at Brungard's Corner, the southeast corner of Main and Monroe Streets, which is a recognized initial point for surveys of Vicksburg, he established a base line at the intersection of Cherry and South Streets, and ran a line down the latter into Pinckardia. Commencing at the southwest corner of South and Washington Streets in Pinckardia, and running south to the northern line of Veto Street, the surveyor ran from the latter point to a corner beyond square 29, a straight line, S. 7 degrees W., and this line is his ascertained western boundary of Washington street next the square. At the point x it is 2 25/100 feet west of the line found by surveyors who started from other points than Brungard's Corner, and at the point y it is 2 47/100 feet west of such line. There are two deeds to parts of Pinckardia executed in October and December, 1836, one of them by Wm. M. Pinckard, which, in describing the boundaries of lots conveyed, used the expressions "on the western border of Washington Street running South 7 degrees West," and "on the east side of Washington Street North 7 degrees East," and the data from these deeds governed this survey. If, however, the western line of the street is run according to Dabney's survey, it will take property and improvements now occupied by many proprietors upon this side of the street.

The appellant answered the bills, setting up that, as early as 1842, Pinckardia, with its streets as dedicated by Pinckard, was incorporated by charter into the city of Vicksburg, and that by ordinance the workmen were grading and straightening Washington Street, which from the Warrenton Road had become the chief thoroughfare of the city, that the appellee's deed was for the lots only and not the street, that he could acquire no right to the public way by adverse possession, that his improvements built on his own land would not be injured but rendered more valuable by grading and straightening the street, that the precipice could be converted into an ornament by the exercise of taste and ingenuity, and that the city was not to be prevented by the inconsiderate and unauthorized act or contract of a street commissioner from conferring these benefits upon the appellee and the public at large.

At the final hearing, upon all the evidence, the injunction was made perpetual.

Decree reversed.

G. Gordon Adam, for the appellant.

1. No surveyor would look for a stake which was planted in the mud of the Mississippi swamp fifty years ago, but taking a recognized initial point for surveys of Vicksburg, like Brungard's Corner, he would proceed in the light shed by old muniments of title and plats to find the required line. Washington street in Pinckardia is only a continuation southward of the street of the same name in the old city with a deflection beginning at Veto Street of seven degrees to the west. Builders do not employ surveyors to locate the houses which they erect, and hence upon this, as on every other street, some of the structures jut over and some fall short of the lines. No compromise was made; and, if it was, the appellee by putting his brick wall and landing and steps east of the line violated the settlement. When the culvert was made and the street graded over the railroad, it became necessary to remove the obstructions to the south in order to straighten the sidewalks. Building his fence in the street gave the appellee no title; and the forbearance of the city in permitting this until the public needed the thoroughfare conferred on him no right. The wide, level, and handsome street will enhance the value of this property and greatly benefit the public.

2. This street was dedicated to public uses by Pinckard, when he laid out Pinckardia and sold the lots. The city charter as early as 1842 had been repeatedly amended so as to include Pinckardia with its streets, and the city became trustee for the public. Pinckard's plat was recorded before the appellee acquired his title, and all conveyances and mortgages of the lots use the description of this plat. The two old deeds do not bind the appellee, but they show the bearing of Washington Street on which his lots abut, and the eastern line of his property is the western boundary of the street. It is not essential to a dedication that the legal title should pass from the owner, or that there should be any grantee of the use or easement in esse to take the fee. No deed or writing is necessary. Where a plat is made and recorded, the requisite intention of...

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