Funderburk v. City of Columbus

• Decision Date: 18 March 1918
• Docket Number: 20015
• Citation: 78 So. 1,117 Miss. 173
• Court: Mississippi Supreme Court
• Parties: FUNDERBURK v. MAYOR AND BOARD OF ALDERMEN OF CITY OF COLUMBUS

78 So. 1

117 Miss. 173

FUNDERBURK v. MAYOR AND BOARD OF ALDERMEN OF CITY OF COLUMBUS

No. 20015

Supreme Court of Mississippi

March 18, 1918

Division B

APPEAL from the circuit court of Lowndes county, HON. T. D. CARROLL Judge.

Suit by Mrs. Bessie McC. Funderburk against the Mayor and Board of Aldermen of the City of Columbus. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Frierson & Hale, for appellant.

The lower court erred in its general conclusion that the plaintiff's title was insufficient to maintain this action. Plaintiff proved every element of title, except a deed, existing in her from July, 1915. Consequently, the narrow question is--is a deed necessary to support an action for permanent injury to the land? The court below held that it was, and gave a peremptory instruction based on that idea. In this, the court erred.

There are numerous cases on the point. Authorities holding less than legal title sufficient to maintain this action. There are no Mississippi cases directly in point, but it has been held that trespass, an action assimilating closely to this is supported by possession.

Darrell v. Dodds, 78 Miss. 912, 30 So. 4. There is no right without a remedy; and the equitable right of the plaintiff in this property is as much the subject of the law's protection as a legal title would have been.

In 30 L. R. A. (N. S.) on pages 231, et seq., is an extended note on "sufficiency of equitable title to sustain action for injury to real property." Foster v. Lumber Co. v Arkansas Valley & Western Railroads, 20 Okla. 583; Hueston v. Mississippi & Rum River Boom Co., 76 Minn. 257, 79 N.W. 92.

The Minnesota court held the right to maintain an action for damages caused by flooding the land of the equitable owner, in that case a vendor under a contract calling for payment of installments not yet performed, where no deed had passed. Examining the rationale of the case, the court says:

"In this case, the injury is wholly to the plaintiff. He will have to pay his vendor the full contract price, notwithstanding that the premises may have been depreciated in value by the trespass."

Compare this case with our own case of Rosenstock v. The Home Insurance Company, 82 Miss. 674, 35 So. 309, where the court summing up its holdings on the subject of the titles of vendor and vendee, where the possession has been given the vendee, the vendor retaining the legal title as security for deferred payments, say that in such cases, the vendee is the equitable owner, and the vendor is a mere trustee of the legal title. How much stronger is this case where the vendor had been fully paid, and possession taken. As between McClung and the plaintiff, who owned the property? Whose property was injured? Certainly the plaintiff's.

We have long since passed the period in which such a technical thing as the nondelivery of a deed may defeat the recovery of damages for injury to property, admittedly plaintiff's, when no conflicting equities and no chance of being misled appear. Compare also the cases cited in section 111 of the note of Russell v. Myer, 47 L. R. A. 639, to wit: Carney v. Reed, 11 Ind. 417, and Gulf, C. & S. F. R. Co. v. Clarke, 51 S.W. 962, where similar direct holdings that an equitable title will support an action for permanent injuries to the freehold. We may summarize as follows:

The peremptory instruction was granted, as is shown by the opinion of Judge Rodgers, found in the record, on the theory that the plaintiff had not the legal title and the legal title was necessary to support the action brought. This is clearly error on the authority cited, for plaintiff had bought and paid for the land and was in possession. As against all the world, she was entitled to the land and to all damages for injury to the land. It is not necessary to decide whether she had the legal title. A legal title may, of course, be obtained without a deed as in the cases of adverse possession without color of title, but the legal title whether held or not by the plaintiff, was not essential to support this action. The party in whom the record title stood under the holdings of this court were the mere trustees of the legal title, and the plaintiff was entitled to all the beneficial interests in the property, and to be protected against illegal invasions of her interest.

Again, it was clearly shown by unimpeached evidence that a part of the construction causing the damages complained of was finished after the deed was delivered, and, further, that the whole construction, in every part was not completed until after the plaintiff obtained a legal title. The circumstances discussed by the evidence are that the change in grade was a part of the construction of a concrete highway, and that this highway, after the laying of the concrete, which was finished the seventh of December remained roped off and closed to traffic until December 24, 1915. In other words, the work was not finished in any sense as to show what it would be in the end, and what the damage would be, until the 24th of December. We think it an untenable position that any street work can be called finished until the street has been reopened for traffic. We do not think authorities necessary on that point. The erection of the timber barricade, which was an item named in the declaration, was certainly not made until after the deed was delivered to the plaintiff. Since the peremptory instruction is not proper unless the defendant has a case which forbids any recovery under the evidence, on the part of the plaintiff, it is certain that this peremptory instruction was improper since the plaintiff claimed damages on account of the erection of this barricade. Even on the defendant's own theory, we submit that the peremptory instruction was entirely improper, and that the case should be reversed.

Plaintiff, in her direct testimony, established every element necessary to warrant recovery against the city under the rulings of this court, in the cases of: Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Warrant Co. v. Reed, 88 Miss. 395, 40 So. 481. She established the existence of an old grade with reference to which her storehouse was built, the elevation of the new grade above the old one. That this was done by the authority of the city, the erection of the barricade complained of, running clear across the front of plaintiff's lot and between her lot and the traveled part of the street, and that this was done directly by the city, through its own employees and also established that these two matters rendered access to plaintiff's storehouse exceedingly inconvenient, discouraging, and to a large extent, preventing prospective customers from resorting to plaintiff's storehouse, and also showed ample data for the assessment of damages by the jury. On the whole case plaintiff proved a case for damages and at the very least, an equitable title in herself from a period of antedating the beginning of the work. She also proved legal title by deed in herself before the work was completed and any injury could have been ascertained.

We respectfully submit that the case for damages was absolutely made out and the peremptory instruction, which was prompted by an erroneous view of the law, was improper.

Sykes & Lewis, for appellee.

Considering that the solution of the first assignment of error renders unnecessary a discussion of the remaining assignments, we will confine this brief to a discussion of it. In doing so, we ask: First, can one having only the equitable title maintain the same action against a trespasser on lands as one who has the entire ownership thereof under a legal title? second, will the equitable title to, unaccompanied by possession of realty, give the right to maintain such action? Third, or must the plaintiff have at the time of the damage complained of, the legal title to the land, declared by a conveyance in writing signed and delivered?

Contending that as appellant--the plaintiff below though size may have had an equitable title to the land at the time of the alleged damage, as testified to only by her father and brother, viz., A. H. and J. W. McClung, yet, as she was not in actual possession thereof under a legal title declared by a conveyance in writing signed and delivered her by J. W. McClung and wife, Beulah, she was not in position to maintain her said action of trespass, we will proceed to consider the authority upon which was based the peremptory charge, the giving of which by the court is complained of.

Before citing the law of this state upon which said charge was based, we will hastily notice some of the authorities of other states as to the right of the owner of an equitable title to realty to maintain a suit for damages against a trespasser.

In George v. Fisk, 32 N.H. 45, the court held that possession is sufficient to give one the right to maintain an action of trespass quare clausum fregit.

In Olson v. Minnesota & N.W. R. Co., 89 Minn. 280, it was held that a purchaser under an executory contract, entitled by implication to the right of possession, but not in actual possession, could not maintain an action for trespass to the realty, for the reason that the constructive possession was in the vendee as the owner of the legal title. In the instance case Jas. W. McClung and wife were continuously in actual possession of the property during the period in which the work was done.

In Smith v. Price, 42 Ill. 399, it was held that when the equitable title rests upon an executory contract of purchase which has not been completely performed by the purchaser, the right of the latter to maintain the action depends upon his right of possession under the contract.

In Newman v....