City of Lexington v. Hoskins

• Decision Date: 22 November 1909
• Citation: 50 So. 561,96 Miss. 163
• Court: Mississippi Supreme Court
• Parties: CITY OF LEXINGTON v. MARY W. HOSKINS

50 So. 561

96 Miss. 163

CITY OF LEXINGTON v. MARY W. HOSKINS

Supreme Court of Mississippi

November 22, 1909

October 1909

FROM the chancery court of Holmes county, HON. JAMES F. MCCOOL Chancellor.

Miss Hoskins, appellee, was complainant in the court below; the city of Lexington, appellant, was defendant there. From a final decree in complainant's favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed.

W. L Dyer, for appellant.

Counsel stated the case, citing in his statement the following statutes:--Laws 1836, p. 351; Compiled Laws, 1824-1838, pp. 466, 467, 485; Laws 1833, act approved Feb. 19, secs. 2 and 3, and act approved Mch. 2, sec. 5; Laws 1841, p. 176; Laws 1848, p. 361; Laws 1880, p. 441.

Adverse possession of a part of a street however long continued, does not bar a municipality from removing obstructions to its use as a street. Constitution 1890, sec. 104, is but declaratory, so far as concerns the question here presented, of the law as it existed before the constitution was adopted. Briel v. Natchez, 48 Miss. 423; Vicksburg v. Marshall, 59 Miss. 563; Witherspoon v. Meridian, 69 Miss. 288; Indianola v. Montgomery, 85 Miss. 304; Dillon on Municipal Corporations (4th ed.), secs. 667 to 675. 1 Cyc. 1118, par. C and note 91. See also notes to Waive v. Kruse, 26 L. R. A. 449. The seemingly conflicting idea in Clements v. Anderson, 46 Miss. 581, is clearly obiter dicta, and is contrary to the decisions of this court, both before and afterwards.

The old records and old maps are competent evidence, and fully show a dedication of the land in controversy and its acceptance by the public. They are official records in proper custody. Wigmore on Evidence, sec. 2131, pars. C, E, F and notes; Id., secs. 2137 to 2141 and 2143 to 2148; 2 Ency. of Evidence, 729, pars. J and L, notes 14, 15.

Boothe & Pepper, for appellee.

The decisions of this court cited by appellant are well enough, but they are not applicable to the case. There never was a dedication of the land in controversy to the public, hence the adverse possession of appellee and those under whom she claims invests her with title. Surely this court will not hold that a dedication to the public is proved by wholly unauthorized and unauthentic copies of an unestablished map made by some private person, although made in 1833. There is no other evidence, or pretended evidence, of a dedication. The old map was not a public record and it was improperly recorded in the records of the county. That it was so placed of record does not change its character or give it validity. Time does not render incompetent evidence competent, nor give sanctity to unauthorized acts, nor render admissible hearsay testimony. No competent evidence of a dedication of Mulberry street was offered; the incompetent evidence tendered was duly excepted to and properly disregarded by the chancellor.

OPINION

BRAME, Special Judge ^[*]

The question involved in this case is as to the right of the city of Lexington to use and occupy a strip of land as part of a street. There is no serious disagreement as to the principles of law controlling in the case, and hence the important consideration is first to arrive at a definite and correct conclusion on the facts. If the decree appealed from rests alone upon controverted facts, and it appears that there was no error of law, we, of course recognize the rule that the chancellor's finding is not to be disturbed unless opposed to the clear preponderance of the testimony. The material facts are substantially as follows:

The county of Holmes was created in 1833, and was authorized to locate a county site within three miles of the center. O. W. Beall and Samuel Long each agreed to donate thirty acres of land for this purpose. Accordingly, in June, 1833, each executed a bond for title, and afterwards, in 1841, gave a deed conveying the adjacent tracts, making sixty acres, to the board of police of the county; the recited consideration being the location of the county site. In each of the deeds the land was described as being bounded as follows: "Beginning at the center of the courthouse on the sectional line between sections 35 and 36, in township 15, range 2 east,"' etc. The land thus conveyed, in a square or rectangle, formed the basis or site of the town of Lexington, which was incorporated in 1836. Meantime, before the incorporation, there had been a survey and plat of the land made by one Benjamin Griffin in 1833, it seems under the direction of the board of police. This survey divided the land into lots and streets; the courthouse being the center.

There is no record of the original plat; but what purports to be a copy thereof, made by Fleet C. Mercer, surveyor of Holmes county, of date April 21, 1851, and duly recorded about that time in the office of the chancery clerk, appears in the record. Accompanying this are the field notes of the survey of the town of Lexington, or, rather, what purports to be a copy thereof, signed by Benjamin Griffin, the surveyor, dated July 9, 1833. These field notes purport to describe the lines that were run in making the original plat, and state that the initial points were indicated by posts set in the ground. This copy of the field notes is not certified regularly by the chancery clerk; but attached to the same is an informal certificate by one L. H. Doty, who recites therein that he was employed by the board of supervisors to copy the original book of field notes and the plat, and that both are correctly copied. This certificate is signed "L. H. Doty, per A. G. Doty," and is dated July 23, 1894. Referred to in the record is a map made of the town of Lexington in 1884. This map was used for some time, but has been mislaid, and could not be found. A later official map made in 1897, purporting to be a copy of the map of 1884, is recorded, in the chancery clerk's office, and is made an exhibit in this record. After this suit was brought, another survey was made, showing lots, width of streets, direction, etc., and also the location and description of the strip of land in controversy. The original plat of this last survey, by agreement of the parties, has been certified to this court, and is a part of the record in this case.

On January 18, 1908, the appellee, Miss Hoskins, who is the owner...