Dabney Foundation v. Perry
| Decision Date | 04 April 1955 |
| Docket Number | No. 39597,39597 |
| Parties | DABNEY FOUNDATION, Inc. v. J. Rigby PERRY, Executor of Last Will and Testament of Mrs. M. E. Perry, Deceased. |
| Court | Mississippi Supreme Court |
Dabney & Dabney, Vicksburg, for appellant.
James D. Thames, Vicksburg, for appellee.
The Dabney Foundation, Inc., filed its bill of complaint against J. Rigby Perry, Executor of the Last Will and Testament of Mrs. M. E. Perry, deceased. In effect it was charged that the parties hereto are the owners of certain adjacent lands, as therein described; that complainant's land is south of the defendant's property and that the parties have a common boundary line between them for a distance of 67 1/2 feet; that many years ago the defendant placed a supporting wall at or near this boundary line, and thereafter added a number of steel rails on the south side as supports; that some of such rails fit snugly against the wall, but that others were based on the ground two or three feet from the wall, and some of them rest on complainant's property; that about December 1, 1948, complainant's predecessor in title complained to the defendant of the then dangerous condition of the wall, but that the defendant declined to repair it; that finally about March 10, 1949, the defendant, without the knowledge or consent of the complainant or its predecessor in title, unlawfully went upon the land, jacked up the wall, and placed five large concrete pilasters against the wall; that such pilasters occupy much more space on complainant's land than that which had been acquired as an easement from the use of the rails; that protest was made, together with the demand that the defendant remove the pilasters, but that he had refused to do so, and continues to maintain them; that such pilasters are an encroachment on complainant's property and they also hinder complainant's ingress and egress to a lot, which extends along the north side of its strip of land; and that, if complainant should attempt to remove the pilasters, a part of the wall would likely fall and cause damage to its property. The prayer of the bill was for a mandatory injunction to require the defendant to remove these obstructions which he placed on the complainant's land.
The demurrer of the defendant set up that there was no equity on the face of the bill; that the court had no jurisdiction; that complainant had a plain adequate and complete remedy at law; and that the complainant was estopped by its act from asserting that it had no adequate remedy at law, because it had, in fact, instituted its suit in the Circuit Court of Warren County, and then, before submission to the jury, had taken a voluntary nonsuit.
The demurrer was...
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Rogers v. Morgan, 43097
...argument, the appellant cites the following cases: Covington v. Carney, Exec., 242 Miss. 461, 135 So.2d 192; Dabney Foundation, Inc. v. Perry, Exec., 223 Miss. 721, 79 So.2d 445; M. L. Virden Lumber Company, Inc. v. Stone, 203 Miss. 251, 33 So.2d 841; Williams v. Williams, 185 Miss. 53, 187......
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...time before the retirement of the jury. See, e.g., Williams v. Whitfield, 249 Miss. 634, 163 So.2d 688 (1964); Dabney Foundation, Inc. v. Perry, 223 Miss. 721, 79 So.2d 445 (1955). However, in Schaffer v. Deemer Manufacturing Company, 108 Miss. 257, 66 So. 736 (1914), a lower court's refusa......
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Williams v. Whitfield, 43016
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