Bright v. Michel

• Decision Date: 05 February 1962
• Docket Number: No. 42152,42152
• Citation: 242 Miss. 738,137 So.2d 155
• Parties: Mrs. J. B. BRIGHT v. Mrs. Mary Ann MICHEL and Harold H. Michel.
• Court: Mississippi Supreme Court

Page 155

137 So.2d 155

242 Miss. 738

Mrs. J. B. BRIGHT v. Mrs. Mary Ann MICHEL and Harold H. Michel.

No. 42152.

Supreme Court of Mississippi.

Feb. 5, 1962.

Aaron L. Ford, Jackson, for appellant.

Smallwood, Darden & Sumners, New Albany, for appellee.

GILLESPIE, Justice.

Appellant, Mrs. J. B. Bright, filed an original bill in chancery seeking the following relief: (1) A mandatory injunction requiring appellees, Mrs. Mary Ann Michel and her husband, Harold H. Michel, to remove encroachments from appellant's land; (2) damages for certain alleged trespasses, and (3) a prohibitive injunction enjoining appellees from trespassing upon or interfering with appellant's property, and other relief.

Appellees denied the allegation contained in the bill and alleged that any encroachment was acquiesced in by Mrs. Bright and that she was estopped from maintaining her action. A cross-bill for damages was filed with the answer. The pleadings are lengthy and need not be referred to in detail.

The chancellor filed an opinion in which he held that the east 25 feet of the 30 foot strip of land claimed by Mrs. Bright was a dedicated street leaving a five foot strip owned by her between the west line of the street and the east line of the lot owned by Mrs. Mary Ann Michel, one of the appellees. He also held that Mrs. Bright was estopped to maintain an action as to the encroachments on said five foot strip. The chancellor denied damages to either party and divided the costs equally. A decree was entered according to the opinion dissmissing the original bill and the cross-bill. Mrs. Bright appealed to this Court.

About twenty witnesses testified, some at great length. Each party introduced an engineer who had surveyed the properties involved. There was no substantial disagreement between the surveyors. Since the chancellor decided the issues in favor of the Michels, the facts are stated in the light most favorable to them. There is not much conflict in the testimony as far as the main issues are concerned, but where there was conflict the Michels' testimony must be accepted, and all permissible inferences which the chancellor could draw from the proof and circumstances must be considered as established facts.

In 1887 a partition suit was filed in the Chancery Court of Benton County involving 159 1/2 acres of land. The chancery court ordered the commissioners to have the land laid off in lots and sold. Pursuant to the court's order, a surveyor named Wolff was appointed and made a map of the land, showing the highway, various streets, the railroad, and the lots and blocks. This map was attached to the commissioner's report as an exhibit thereto and a decree listing the numerous purchasers of the several tracts, according to the Wolff survey, was entered on May 8, 1888. The Town of Hickory Flat was incorporated on April 6, 1874, and re-incorporated on March 7, 1888, by act of the legislature. The Wolff survey is the only plat or survey of the Town of Hickory Flat in existence. There are several copies, one of which is owned by Mr. and Mrs. J. B. Bright, and all the deeds to property in the Town of Hickory Flat have been written in accordance with said plat since 1888.

Several of the streets shown on the plat are named, but most of them were not. The northern tier of blocks of the Wolff survey are ten chains square and block one is in the extreme northwest corner of the plat; block two lies immediately to the east. Between said blocks one and two an unnamed street 50 feet in width is shown on the plat. Highway No. 78 is the southern boundary of blocks one and two. For some 67 years a fence had been maintained in the center of the unnamed street lying between blocks one and two of the Wolff survey.

On June 1, 1948, John H. Goode and wife conveyed to Mrs. J. B. Bright a strip of land 30 feet wide off the east side of block one and extending north from the highway about 217 feet, together with other property north of said strip. The east 25 feet of this strip of land was within the unnamed street lying between block one and two. The chancellor found that Mrs Bright actually acquired title to a five foot strip west of the street. The Town of Hickory Flat entered an order opening the street in question on November 13, 1959. For many years the real property in Hickory Flat had been assessed for taxes in accordance with the Wolff survey. Mr. Bright thereafter built certain lumber sheds and an office on the larger tract some 231 feet north of the highway. The unnamed street, a part of which was included in the deed from the Goodes to Mrs. Bright, had never been opened or used as a street when Mrs. Bright received the deed from the Goodes. In order to have access to his lumber business, Mr. Bright graded the west half of said street and improved it for a driveway leading to the lumber yard.

On July 29, 1953, John H. Goode and his wife conveyed to Mrs. Mary Ann Michel a strip of property immediately to the west of the 30 foot strip described in the deed to Mrs. Bright, and on which the driveway had been constructed by Mr. Bright. This tract of land was about 231 feet north and south by 31.3 feet east and west. Mrs. Michel thought she was getting 35 feet but there was an overlap and she actually got only about 31.3 feet east and west. At the time Mrs. Michel bought her property, Mr. Bright, who was the agent of Mrs. Bright in all transactions herein mentioned, was present and assisted in measuring the tract purchased by Mrs. Michel and encouraged the transaction. Mr. Bright referred to the property being purchased by Mrs. Michel as a corner lot. Mr. Bright knew at that time that Mrs. Michel was buying the property for use by herself and her husband as a site for establishing a cafe. After Mrs. Michel bought her property, and in 1953, she constructed a cafe and residence on the south part with a concrete parking apron facing Highway 78. A part of this building encroached over onto the five feet which Mrs. Bright owned between the Michel property and the unnamed street. During the same year, Mrs. Michel constructed a septic tank next to the driveway constructed by Mr. Bright. This septic tank was situated on the five foot strip owned by Mrs. Bright and extended into the unnamed street.

About that time Mrs. Michel also constructed a concrete gutter running north and south so as to take care of drainage. This was in the west half of the unnamed street and extended into the street about 4 1/2 feet. Mr. Bright sold to Mr. and Mrs. Michel the materials for all the construction made by the Michels, amounting to more than $5,000. Mr. and Mrs. Bright lived near the Michel property. Mrs. Bright worked in the lumber business part of the time with her husband and she and her husband constantly used the driveway constructed on the said unnamed street while the Michels were constructing the improvements which encroached on Mrs. Bright's five foot strip of land.

In 1958, Mr. and Mrs. Michel constructed an addition to the cafe and residence which further encroached on Mrs. Bright's five foot strip of land. At the same time Mrs. Michel and her husband were constructing a motel on property they had acquired east of the unnamed street and they had agreed to and did purchase from Mr. Bright all the materials for the motel and for the addition to the cafe. Mr. Michel and Mr. Bright signed a price list of said materials in the presence of Mrs. Bright. Mrs. Bright loaned Mr. and...