Moore v. Kuljis, 44556

• Decision Date: 06 November 1967
• Docket Number: No. 44556,44556
• Citation: 207 So.2d 604
• Parties: L. G. MOORE, James West and State of Mississippi v. Peter T. KULJIS.
• Court: Mississippi Supreme Court

Page 604

207 So.2d 604

L. G. MOORE, James West and State of Mississippi v. Peter T. KULJIS.

No. 44556.

Supreme Court of Mississippi.

Nov. 6, 1967.

Rehearing Denied March 11, 1968.

Further Rehearings Denied March 18, 1968.

J. Ruble Griffin, Bay St. Louis, Thomas J. Wiltz, Walter L. Nixon, Jr., Biloxi, Virgil G. Gillespie, Gulfport, for appellant.

John M. Sekul, Thomas L. Wallace, Biloxi, for appellees.

ETHRIDGE, Chief Justice.

The land involved in this controversy is a small parcel, being the east one-half (30 feet) of that part of Cedar Street in the City of Biloxi, extending from the south side of U.S. Highway 90 several hundred feet to the Gulf on Mexico. Cedar Street runs north and south from Back Bay to the Gulf of Mississippi Sound and is sixty feet wide. This case involves issues concerning the dedication and abandonment of a public street, its extension by artificial filling to the water's edge, and the rule by which owners abutting on a city street have title to its center upon abandonment of the easement.

This suit to confirm title, to cancel claims, and to remove James West from the premises, was brought in the Chancery Court of Harrison County by Peter T. Kuljis against James West, L. G. Moore, the City of Biloxi, the State of Mississippi, and all persons claiming any interest in the land. The chancery court confirmed the title of complainant Kuljis and cancelled the clouds asserted by the defendants. It awarded Kuljis a judgment against West for rent at the rate of $200 per month, following the expiration in 1962 of his lease. The State, Moore and West appealed, the latter with supersedeas. Kuljis cross-appealed, seeking double rent. We affirm.

I.

The land in question was patented out of the Federal government in 1844. It is in the Point Cadet section of Biloxi, where the seafood canning factories are located. In 1845, the patentee, McCaleb, had a large tract of land surveyed into lots, blocks, streets and alleys. This survey was known as the Plan of Summerville, and among the streets so platted and designated was Cedar Street. This plat shows no land, but only a beach at the foot of Cedar Street. In 1897 the entire area was resurveyed by Ferguson. On that plat Cedar Street was again shown and dedicated as a street running north and south, sixty feet wide, bounded on the east by Block 4, and on the west by Block 3 of the Plan of Summerville. Both of these plats show Cedar Street running from the seashore of the Gulf on the south to the marsh on the Bay of Biloxi to the north.

Lot 1, Block 4 of the Plan of Summerville is on the east side of Cedar Street. Valid record title to it became vested in 1932 in Kati Mladinich. In 1934 she obtained a state patent, conveying to her all of that land which lay south of Lot 1, Block 4, east of Cedar Street, if extended. All of the deeds to Lot 1, Block 4 in this chain of title describe Lot 1, Square 4 as being bounded on the west by Cedar Street, and on the south by the Gulf of Mexico or Mississippi Sound. The same type of description was used as to Lot 6, Block 3, which adjoins Cedar Street on the west. These two plats (the 1845 Plan of Summerville and the 1897 Ferguson Resurvey) dedicated Cedar Street throughout its entire length and width to the public use.

Up to the early 1900's the mean high tide of the Gulf reached within several feet of the south side of a street car line, which was constructed adjacent to the south side of Front Street. Sometime between 1936 and 1943 the Federal Government, in cooperation with the City of Biloxi, dredged and pumped on the south end of Cedar Street, as well as on other land in that area, several hundred feet of artificial accretion. Some of this accretion perhaps resulted from oyster shucking activities, but most of it was artificial accretion made by the Federal Government south of the original high water mark. During this time the property to the east, Lot 1, Block 4, was owned by Mrs. Mladinich, whose family operated a canning factory, packing shrimp and oysters.

In 1943 Mladinich conveyed to Leckich and Williams a parcel of land lying immediately south of Lot 1, Block 4, in the Plan of Summerville. This was described as beginning at a point where the western boundary line of Lot 1, Block 4 intersects In 1944 Mladinich quitclaimed to Leckich and Williams a frontage of 80 feet on the south side of East Beach Boulevard, bounded on the north by the boulevard, on the east by property owned by a named individual, on the south by the Gulf, and 'on the west by Cedar Street.' By 1946 the land south of the road, bounded on the west by Cedar Street, became vested in Williams and Thornton. Williams and Leckich, and later Williams and Thornton, operated a seafood plant on the land purchased from Mladinich, and on the land in dispute (the 30-foot tract, the East half of Cedar Street extended), which business was known as the Victory Packing Company. In the 1947 hurricane, some of the buildings were destroyed; afterwards other buildings were constructed, some of them extending over on the land here in controversy.

the original high water mark of the Mississippi Sound; running south a distance of 900 feet, then east a distance of 80 feet, then north 900 feet to a point where the eastern boundary line of Lot 1, Block 4 intersects the original or natural high water mark of the Mississippi Sound, thence in a westerly direction 80 feet to the place of beginning.

On February 14, 1958, Williams and Thornton conveyed to Stephen J. Kuljis and Peter T. Kuljis the following parcel of land:

* * * the following described real property, lying and being situated in the City of Biloxi, County of Harrison, State of Mississippi, to-wit:

THAT CERTAIN LOT OR PARCEL OF LAND fronting eighty (80) feet on the South side of Old East Beach Boulevard, as formerly constituted and running back South between parallel lines to the Mississippi Sound; East by now or formerly Wentzell, North by South line of Old East Beach Boulevard, and on the West by the East line of Cedar Street, extended South of Beach Boulevard to the Mississippi Sound, or Gulf of Mexico, and being that part of the land purchased by Ernest Mladnich from the First National Bank of Biloxi, Mississippi, by deed dated December 3, 1931, and recorded in Book 192, pages 423-424, of the Land Deed Records of Harrison County, Mississippi, which lies South of Old Beach Boulevard, as formerly constituted, and being conveyed together with all improvements thereon, and together with all riparian, littoral or aquatic rights thereunto belonging; together with capping machines conveyors, tanks and other appurtenances to the factory building situated on said premises, and together with office building fixtures and equipment therein.

This conveyance is made subject to any rights of the lessee or successors in interest under lease from grantors to Hollis West, covering the period of five (5) years from the date of August 11, 1957, and covering on a portion of the above described property.

In brief, this deed to Kuljis conveyed this lot as bounded 'on the west by the east line of Cedar Street, extended south of Beach Boulevard to the Mississippi Sound, or Gulf of Mexico. * * * ' It was also subject to the rights of the lessee, Hollis West, from lessors Williams and Thornton. That five-year lease ran from August 11, 1957 until August 10, 1962.

Stephen J. Kuljis died, and Peter T. Kuljis obtained title to his brother's interest from the administratrix of the estate in July 1961. James West succeeded to his brother's interest in the lease and in the seafood business which was operated by Hollis West during his lifetime and located in part on the land here in question.

After the Kuljis brothers bought the land in 1958, they continued to operate the seafood factory located on it and on the tract in dispute.

Before the 1947 hurricane there were buildings in the center of Cedar Street, if extended, directly south of Front Street. Some of these buildings of the Victory On February 14, 1958, as stated above, Williams and Thornton conveyed to Kuljis the 80-foot wide lot on the south side of the highway, bounded 'on the west by the east line of Cedar Street, extended south of Beach Boulevard to the Mississippi Sound, or Gulf of Mexico.' This deed also conveyed to Kuljis 'capping machines, conveyors, tanks and other appurtenances to the factory building situated on said premises, and together with office buildings, fixtures, and equipment therein.' It was subject to any of the rights of lessee, Hollis West, under the five-year lease of 1957. Hollis West and his successor, the appellant James West, continued to pay rent under this lease to Kuljis, after the latter purchased in 1958 the tract as described above, through the expiration date of the lease in 1962.

Packing Company extended over from the Mladinich land into the east half of Cedar Street, if extended. A seafood factory was operated on the disputed land from a time before the 1947 hurricane up until this suit was filed. The Attebury Survey reflects that there was situated on Cedar Street, if extended, at its north end below the highway, an office building, and moving toward the south, a warehouse, a cold storage room, an oyster shucking room, a timber wharf, and part of a shrimp picking room with a concrete platform to the west. These buildings and structures were placed on the land in late 1947 or early 1948, after the hurricane of September 19, 1947.

II. JAMES WEST

Four and one-half years after Kuljis purchased the land to the east of Cedar Street, as extended, from Williams and Thornton, and after the lease under which he had been holding expired, James West obtained in 1962 from Williams and Thornton a quitclaim deed, by which the grantors purported to convey any right, title or interest which they had in and to the 60-foot width of Cedar Street as extended south of Highway 90 to the Mississippi Sound; and also to convey all of their...