Indianola Light, Ice & Coal Co. v. Montgomery

• Decision Date: 05 December 1904
• Court: Mississippi Supreme Court
• Parties: INDIANOLA LIGHT, ICE AND COAL COMPANY ET AL. v. HUGH M. MONTGOMERY ET AL

37 So. 958

85 Miss. 304

INDIANOLA LIGHT, ICE AND COAL COMPANY ET AL. v. HUGH M. MONTGOMERY ET AL

Supreme Court of Mississippi

December 5, 1904

FROM the chancery court of Sunflower county, HON. JULIAN C WILSON, Chancellor.

Montgomery and another, appellees, were complainants in the court below the Indianola, etc., Company, appellant, was defendant there. The suit was to confirm complainants' title to a small piece of land. The defense was predicated of the idea that the land in controversy constituted a part of a street in the town of Indianola. From a decree in complainants' favor the defendant appealed to the supreme court.

The town of Indianola is nearly square. About one-half of the town is south of Indian bayou, which runs east and west. On the south side of the bayou is the business part of the town and on the north side is the residence portion of the town. On the south side of the bayou is Front street, running north and south up to a street running parallel with, and immediately on the banks of, the bayou. Front street, up to the bayou, is sixty-six feet wide. The lot in controversy is what would be included in the street extended across the bayou, except so much of it as is covered by a bridge over the bayou from north to south. The record shows a deraignment of title in appellees from the United States government through mesne conveyances, to themselves. Appellants claim that the lot was dedicated as a street to the town of Indianola, and they claim by privileges granted by the town. The evidence shows that in 1881 the S. E. 1-4 section 31 township 19, range 4 W., of which the lot in controversy formed a part, was owned by G. K. Smith and others, and about that time a map was made by one Lusk, a surveyor, of a portion of this land, lying south of Indian bayou, dividing it into town lots, and on this map a street running north and south up to the south bank of the bayou was laid off, sixty-six feet wide, known as "Front street," and up to the southern boundary of the lot in controversy; that in 1883 the lot in controversy and other land were sold to P. Barnett by the then owners, but this particular lot was never sold to anybody until complainants purchased it in January, 1903, before this suit was filed, in May, 1903; that in 1888 G. K. Smith and others purchased the land lying north of Indian bayou, and caused a map to be made of it, and sold it as divided in the map, as town lots, and the residence portion of the town of Indianola was built there; that about this time a bridge sixteen feet wide was built across the bayou, the south end of which extended into Front street, and on the north side there was a vacant plot of land about one hundred and eighty feet wide, several streets intersecting at or near the north end of the bridge. The bridge was used all the time, after it was first erected, by the public, in crossing the bayou from north to south. The bridge was afterwards rebuilt and made twenty feet wide. It is contended for appellees that, as the public has used the bridge across the bayou for ten years, its right and title are limited to the actual land used for street purposes.

Decree reversed and cause remanded.

Johnson, Chapman & Neill, for appellants.

A right of way across the lot in question is conceded. Describing the property sued for, the bill excepts so much of the ground as is covered by the bridge. That the street known as Front street on the map, sixty-six feet wide, extends across the bayou is conceded. The only question in controversy is the width of the right of way across the bayou. Were this level ground, there would be no room for controversy; both authority and reason establish under the circumstances and facts in this case that the street would be at least sixty-six feet wide over the disputed territory. There might be a question as to whether it was merely sixty-six feet of uniform width or, commencing at sixty-six feet, would widen out to fit the surveyed plat on the north side of about one hundred and eighty feet. The ground where this way is located has been used for street purposes since the survey on both sides of the bayou. The plat and survey on the south side of the bayou was made in 1887; that on the north side of the bayou, in 1888. With the exception of the frame building erected by Cohn on the east side of where the bridge now stands, on the opposite side from the lot in controversy, and which stood from the year 1894 to the year 1896, there has never been any adverse occupation against the claim of the public as a street. The right of way being conceded, we ask, How is its width to be determined? It certainly could not be determined by the travel across it. On account of the condition of the ground, or maybe the mere fancy of the public, all the travel might be confined to one side of the lot, inside of a space of not over ten feet; but certainly the grant which is presumed from the long use would not be confined to this actual space trodden by the public. Where a right is gained by prescription, as in the case at bar, instead of by original grant, the theory of the law is that there was an original grant, which on account of its antiquity cannot be proven, and what we call prescription, long use, is but conclusive evidence of an original grant. Washburn on Easements, 103. A nonuser of a part of the street covered by an actual grant does not deprive the public of their right in it. See notes to 9, L. R. A., 94; Briel v. Natchez, 48 Miss. 436.

Harris & Powell, on the same side.

The difference in the contention of the two parties to this suit seems to be that appellees proceed on the ground that there has been no adverse actual occupation of the strip across the bayou, except as the same is occupied by the bridge, which is not true, while appellants contend that such actual occupation of the whole is not necessary, although actual occupation is shown by the evidence as to a large part of the property in controversy, because they claim by dedication as well as by adverse occupation. Dedication may be made in two ways: by express dedication or by deed or map, or by implied dedication, which is one arising by operation of law, from acts of the owner. "It may exist without any express grant, and need not be evidenced by any writing nor by any form of words, oral or written. It is not founded on a grant, nor does it necessarily presuppose one, but is founded on the doctrine of equitable estoppel. If the donor's acts are such as indicate an intention to appropriate the land to the public use, then upon acceptance by the public the dedication becomes complete." Elliott on Roads and Streets (2d ed.), 123, 124.

The whole question seems to resolve itself into what was the intention of the parties in making the various plats and surveys of the town both on the north and south side of the bayou. As a side light upon this subject the fact that the town widened the bridge several years ago to twenty-six feet without objection ought to be considered. Again, the property, though in the heart of the town, was not attempted to be conveyed for many years, and then only two months before the bringing of this suit. It. was then evidently purchased to bring this suit and hold up the town. When Front street on the south side of the bayou was laid off, the town was a mile square and Front street ran up to the bridge which was in the center of the town. The land on the north side was then owned by G. K. Smith, who dedicated the street and who manifestly intended to open up and sell, and who did a year after plat and sell, the land on the north side. Now is it possible that he only intended the street to be sixty-six feet wide up to the bridge and there shrink to a twenty-foot strip across the bayou? Streets are usually the same width throughout, and in the absence of proof the intention of a party dedicating a...