Jenkins v. McQuaid

• Decision Date: 03 December 1928
• Docket Number: 27333
• Citation: 120 So. 814,153 Miss. 185
• Court: Mississippi Supreme Court
• Parties: JENKINS v. MCQUAID. [*]

120 So. 814

153 Miss. 185

JENKINS v. MCQUAID. ^[*]

No. 27333

Supreme Court of Mississippi

December 3, 1928

Division B

Suggestion of Error Overruled March 18, 1929.

APPEAL from chancery court of Hinds county, First district., HON. V J. STRICKER, Chancellor.

Suit by Edward F. McQuaid against H. B. Jenkins. Decree for complainant, and defendant appeals. Reversed and rendered.

Judgment reversed. Suggestion of error sustained in part, and overruled in part.

Teat & Cox, for appellant.

Complainant is estopped by the dedication of the alley. It is conclusively proven by the uncontradicted testimony of both H. B. Jenkins and E. A. Fitzgerald that at the time that the sale of the said property was made by Fitzgerald and McQuaid to Jenkins that there was an oral dedication of the alley in question, laid out on a blue print and placed before and presented to Jenkins as an inducement and consideration to Jenkins to purchase and build his laundry on the land in question. Jenkins relied upon such dedication and purchased the land and put his buildings thereon immediately and begun the use of the said alley as a matter of right and continued this use for a period of twenty-three years. The court below was in error in holding that an oral dedication followed by adjacent improvements and continuous use was not a sufficient dedication to entitle the vendee to an easement over the said alley. Lechman v. Mills, 91 P. 11, 13 L. R. A. (N. S.) 990; 18 C. J. P. 56, sec. 37; Burchfield v. Ruleville, 146 Miss. 570, 111 So. 565; New Orleans v. Carrollton, Land Co., So. ; Iowa Loan & Trust Co. v. Board of Supervisors, 5 A. L. R. 1532; Hainer v. Heidenreich, 142 Miss. 65, 107 So. 196; Panhandle v. Trigg, 148 Miss. 306, 114 So. 625; Morgan v. Chicago, etc., Ry. Co., 96 U.S. 716, 24 L.Ed. 743. It seems that this holding of the chancellor is in direct conflict with the unbroken line of authorities above mentioned. We cite Burchfield v. Ruleville, 146 Miss. 570, 111 So. 565, as supporting our contention and in point, especially on the idea of estoppel.

The holding of the court below is in direct conflict with our statute of ten years' adverse possession. The undisputed proof in this case shows the occupancy for a period of twenty-three years; the street was built or filled in by Jenkins, used by him, maintained and kept for said time, openly, notoriously, adversely and as a matter of right. Certainly, with this statute and the decisions of our state all in harmony and with one accord supported by evidence without conflict or dispute, this court will have no difficulty in holding that the defendant Jenkins acquired an easement to the alley in question and that the complainant had no right to interfere with his use of the alley. Upon this ground the judgment here should be for the appellant.

Alexander & Alexander, for appellee.

The defendant has acquired no title to the strip as an easement. There was not a syllable of testimony which was inconsistent with complainant's claim that the original use and entry of the alley was merely permissive. The defendant in exact language so defines the origin of his use. All other testimony of defendant had to do with the fact of his using thereof. There is not a word which even suggests that this original permissive use was ever repudiated by defendant and a hostile claim of actual ownership set up to the knowledge of the complainant. See Davis v. Bowmar, 55 Miss. 671, which affirms the elemental rule that a permissive holding of land can never ripen into title. An entry shown to have been permissive will give character to all subsequent acts. The legal presumption is in favor of holding in subordination to the title. See also 19 C. J., 836. It is fundamental that a user begun permissively may not ripen into title or right, and this is illustrated in cases like the one in suit, also cases involving landlord and tenant, and tenants in common. In all of such cases actual knowledge must be given to owner of an adverse or hostile claim of ownership. Greenwood v. Moore, 79 Miss. 201.

There has been no adverse possession of the property within the definition of the statute. Our statute must be carefully construed since all presumptions are against one who claims by usurpation. One of the requirements is that any use or occupancy must be "adverse," and by "One claiming to be the owner." This means of course, more than an owner of a privilege. All the other elements of "hostility," "continuity," "open," "notorious" must also be present. But first of all, of the question of the failure of the proof even of the defendant to show that he was "one claiming to be the owner." The testimony of all witnesses, including the defendant, and including his sworn answer, show conclusively that he never claimed anything except an easement. He did not intend to make any other use than as a passageway; it was a surprise to him that he had to some extent done so. Nor did he claim an exclusive right therein. However this would not have availed. 2 C. J. 124.

Argued orally by J. A. Teat, for appellant, and Julian P. Alexander, for appellee.

ETHRIDGE, P. J. ANDERSON, J.

OPINION

ETHRIDGE, P.J.

This is an appeal from a decree of the chancery court of Hinds county confirming Edward F. McQuaid's title to a strip of land fifteen, feet wide lying immediately west of lot 4 of the McQuaid-Fitzgerald subdivision in the city of Jackson, Mississippi, sold to appellant, H. B. Jenkins, by the father of Edward F. McQuaid (E. A. McQuaid and Fitzgerald were joint owners of the said land). The sale to Jenkins was made in the year 1905, and the fifteen-foot alley, or strip of land here involved, was not embraced in the deed from McQuaid and Fitzgerald to Jenkins; but it is the contention of Jenkins that there was a map showing the strip of land to be an alley; that he bought with reference to the said plat; and that McQuaid in making the sale to him, represented to him that he (Jenkins) would have the use of said strip of land, or alley, as a means of ingress and egress to the lot purchased by him (which lot he purchased for erecting a laundry thereon). Edward F. McQuaid, claimed by descent from E. A. McQuaid, his father, in a partition proceeding of the estate of E. A. McQuaid to his heirs, in 1909, and deraigned title from the government to himself through a series of named conveyances; setting up that he was the owner in fee of the fifteen-foot strip of land between certain lots owned by him and awarded to him in the partition proceedings, and the lot sold by his father and Fitzgerald to Jenkins, and alleging that Jenkins was using the alley without right thereto and in derogation of the complainant's (E. F. McQuaid's) title, and praying for a decree confirming the title thereto and for rental for the use of said land.

Jenkins answered the bill, setting up at length in his answer that when he bought the lot from McQuaid and Fitzgerald upon which his laundry is situated, the owners then and there represented to the defendant that the said alley was open to the use of the lot then and there purchased from them by Jenkins for the purpose of building a laundry thereon, and that it was convenient and necessary to use said alley for egress and ingress to the east end of said lot; that the consideration paid for the said land was likewise a consideration for the enjoyment and use of said alley in connection therewith, and that the value of same to the proper use and enjoyment of the said lot was taken into account and considered an inducement, and was the moving cause for the purchase of the said lot; that he had used repaired, and maintained the said alley as a means of egress and ingress to his laundry continuously for a period of more than twenty years, and that the said grantors ratified his use of the said alley as a matter of right during the period of their natural lives, and that their successors in title had likewise at all times acquiesced, as a matter of right, in his use of said alley without objection, until the day and date of the filing of said bill of complaint; that his use of the alley for egress and ingress to his lot had been open, hostile, continuous, and notorious, and as a matter of right, during all of said period of time. The answer further alleges that McQuaid and his predecessors in title approved certain maps, plats, or drawings of the McQuaid-Fitzgerald subdivision to the city of Jackson, which showed said alley as an ingress and egress to the lot purchased by Jenkins, and that--the said parties "obtained the benefit of enhanced value which the said street gave to and afforded their adjoining property (which has likewise been purchased...