Dunn v. Stratton

• Decision Date: 23 March 1931
• Docket Number: 29305
• Citation: 133 So. 140,160 Miss. 1
• Court: Mississippi Supreme Court
• Parties: DUNN v. STRATTON et al

133 So. 140

160 Miss. 1

DUNN v. STRATTON et al

No. 29305

Supreme Court of Mississippi

March 23, 1931

Division B

1 BOUNDARIES.

That in deed which shows particular earlier survey was intended is good under principle that that will be considered certain which can be made certain.

2 BOUNDARIES.

It is only where there is nothing in deed showing different survey was referred to, that final official government survey is conclusively presumed to have been in mind.

3 DEEDS.

Courts, in construing deeds, must effectuate intention of parties.

4. DEEDS.

Intention of parties to deed must be found in writing by way of complete delineation of description on face of deed or by dependable references therein made which, when applied, render delineation complete.

5. DEEDS.

No item included as part of description in deed should be rejected as erroneous or varied so long as it is reasonably possible to make all items harmonize.

6. DEEDS.

Parts of deed which are more certain as descriptive items will interpret less certain items.

7. DEEDS.

When it is necessary in order to harmonize all items of deed, more certain items will, if reasonably possible, draw to themselves less certain items.

8. DEEDS.

If any item of deed must be rejected as impossible, or varied as erroneous, item which is less certain and about which it is more probable grantor was mistaken will be rejected or varied.

9. BOUNDARIES.

Undisputed items of Gulf on south and railroad on north and specified width drew to themselves section 21 of old survey, where final survey contained no section 21 applicable to lands described in deed.

10. BOUNDARIES.

In disputed boundary case, older deed to defendants' predecessor in title prevailed over deed to complainant's predecessor in title.

11. BOUNDARIES.

Where succeeding calls are readily ascertained and are as little liable to mistake, they are of equal dignity with, and may control, the first.

12. BOUNDARIES. Where complainant in boundary case claimed under deed calling for lot five hundred fifty feet wide commencing at corner of another lot on west, and defendant, owning adjoining lot on east running to section line, claimed under older deed calling for lot six hundred fifty-eight feet wide, but there was shortage, decree for defendants held authorized by evidence.

Deed to defendants' predecessor in title called for strip commencing on Gulf five hundred fifty feet east of eastern boundary line of land then owned by M. and running eastwardly along Gulf six hundred fifty-eight feet, and deed to complainant's predecessor in title described strip as commencing on Gulf at southeast corner of lot sold to M. and running eastwardly along Gulf five hundred fifty feet. The evidence did not show exact location of eastern boundary of M.'s property at time of conveyances, but, accepting corner as generally accepted for fifteen or twenty years, there was a shortage in complainant's lot of approximately thirty-five feet according to one view and of about forty-nine feet according to another view. There were no circumstances shown which would justify conclusion there was intention to extend lot of defendants' predecessor in title to eastward beyond section line, and deed itself limited lot as being within section, and section line had never been in dispute.

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county, HON. D. M. RUSSELL, Chancellor.

Suit by James W. Dunn against S. H. Stratton and others. From the decree, complainant appeals. Affirmed.

Affirmed.

H. B. Everitt, of Pascagoula, and Jas. F. Galloway, of Gulfport, for appellant.

In the absence of calls for other monuments, calls for adjoiners will, as a rule, control other and conflicting calls. Calls for adjoiners are themselves calls for monuments, and where they are certain, they are monuments of the highest dignity.

9 C. J. 222, section 148.

Where a line is described as running from one point to another, it is presumed, unless a different line is described in the instrument, or marked on the ground, to be a straight line, so that by ascertaining the points at the angles of the parcel of land the boundary lines can once be determined. The rule of surveying, as well as of law, is to reach the point of destination by the line of shortest distance. And lines should never be deflected, expect in order to conform to the intention of the parties.

9 C. J. 167.

Calls for adjoiners control over courses and distance.

Land Co. v. Saunders, 103 U.S. 316; 9 C. J., sections 148-149; Potts v. Canton Comp Co., 70 Miss. 462, 12 So. 147; Clark on Surveyors and Boundaries, section 411.

An ambiguous description is aided by construction evidenced by acts of the parties.

8 R. C. L. 1041-1042; 39 Cyc. 1297B, 3.

Mize, Mize & Thompson, Gaston H. Hewes, W. T. Moore, Jr., and J. L. Taylor, all of Gulfport, for appellees.

The fence line might establish the land May actually entered under his deed, but would not establish whether it was the right land or not, and certainly would not establish the point from which Hiern, who was the common source of title of May, the complainant, and the defendants, started when he made the deeds to the predecessors in title of both the complainant and the defendant.

Appellant and appellees claim from a common source of title, and appellees claim under a deed prior in time and of record, and even if there should be any overlapping, still appellees should prevail.

Slack v. Swain, 8 So. 545.

The court will not reverse the finding of fact made by the Chancellor unless it is manifestly wrong.

OPINION

Griffith, J.

This is a suit in equity to settle a disputed boundary between adjoining owners of lots, in Harrison county, fronting on the Gulf of Mexico. The lots are a part of what is known as lot 50 of the Henderson, Shipman and Hughes partition, made in 1843. This partition was laid out under and in accordance with the original government survey and plat of 1822, by which the township was surveyed and platted into regular sections, and wherein the said lot 50 and the land herein dispute was a part of section 21, township 8 S., R. 12 W. Later and in 1849, practically all the water front in this township was resurveyed into the Bartholomew Pellerin claim, and was finally platted by the government in such manner that all these lands were designated as section 22.

There is, however, upon the new township plat made in 1849, a small triangular or wedge-shaped piece of land running over from the adjoining township in order to fill out a fractional balance of the Asmond claim; this small triangle being in the extreme southwest corner of said township 8 S., R. 12 W. and bordering on the seashore, and which is numbered 21 on the new plat; but, owing to the size, shape, and peculiar location of this fractional piece of land so designated, it is manifestly impossible, under the rules which shall be referred to at a subsequent place in this opinion, that the said wedge-shaped fraction could have been within the intention of any of the parties under any of the many deeds which have been produced in evidence in this case. All the parties to this litigation seem correctly to have wholly disregarded this small wedge-shaped triangle, and it has not been mentioned either in the course of the trial or in the argument.

But some question did run through the trial by way of objection on the part of appellees to the several deeds introduced by appellant, because these deeds, all of them, except in the last few years, described the lots here in litigation as being in section 21, whereas by the last and final government plat there is no section 21 in this township that could possibly be applicable. See Goff v. Avent, 122 Miss. 86, 98, 84 So. 134; Goff v. Avent, 129 Miss. 782, 794, 93 So. 193; Weston Lumber Co. v. Strahan, 128 Miss. 54, 90 So. 452; Lott v. Rouse, 147 Miss. 802, 111 So. 838. If this objection were sustainable, or should be sustained, then the bill might have to be dismissed at the threshold, for there is no title by adverse possession, and the foundation deeds in the chain of title upon which complainant appellant stands would place his lot as being in section 21 of said township and range when, as already said, according to the final government plat, there is no such section in that township which could possibly apply to the lands described in these deeds, or else the said section 21 would have to be rejected and the complainant left to stand on the remaining items of the description, Ladnier v. Cuevas, 138 Miss. 502, 103 So. 217; Pegram v. Newman, 54 Miss. 612, to do which would embarrass the case of both parties on the merits, and would endanger the future marketability of their respective titles.

But we do not think the point of objection was well taken, because all these lots are described as being bounded south by the Gulf of Mexico and on the north by the Louisville & Nashville Railroad, both of which permanent and monumental physical locations are shown on the surveyors' maps here in evidence. The location of these two permanent boundaries are not in any way disputed; and, it being clear that these two controlling monuments are not, and cannot be for all these associated and contiguously connected lots, in any section 21 of this township, according to the new plat of the township it is thus made certain that the section 21 referred to in these deeds is section 21 of the original 1822 survey, and that all of these deeds have simply followed the original section descriptions, as used in the older deeds before the plat of 1849 was made. It was not held in the line of cases first cited supra that it is not allowable to describe lands according to the original or older...