Nettleton Church of Christ v. Conwill, 92-CA-01215-SCT

• Decision Date: 20 February 1997
• Docket Number: No. 92-CA-01215-SCT,92-CA-01215-SCT
• Citation: 707 So.2d 1075
• Parties: NETTLETON CHURCH OF CHRIST, an Unincorporated Religious Association, The Town of Nettleton, Mississippi and Earnest Sullivan v. Sandra R. CONWILL.
• Court: Mississippi Supreme Court

Page 1075

707 So.2d 1075

NETTLETON CHURCH OF CHRIST, an Unincorporated Religious Association, The Town of Nettleton, Mississippi and Earnest Sullivan v. Sandra R. CONWILL.

No. 92-CA-01215-SCT.

Supreme Court of Mississippi.

Feb. 20, 1997.

Rehearing Denied March 12, 1998.

Opinion Dissenting from Denial

of Rehearing March 12, 1998.

Michael G. Thorne, Tupelo, for Appellant.

Henry J. Applewhite, Aberdeen, for Appellee.

Before SULLIVAN, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

¶1 The proceedings and disposition relating to the issues in the case at bar actually began in another proceeding, not currently on appeal, between these same and other parties, also concerning the disputed land, filed in the Monroe County Chancery Court and heard by Judge Timothy Ervin. Sandra R. Conwill filed a complaint against Nettleton Church of Christ, the Town of Nettleton and Earnest Sullivan (collectively "Town of Nettleton") to remove cloud from title and to confirm title to real property and for an injunction against all defendants. By way of final decree entered on March 1, 1991, Conwill's complaint was dismissed on a motion for directed verdict made by the Town of Nettleton for her failure to prove her claim.

¶2 Subsequently, on August 13, 1991, Conwill filed a second complaint, against the Town of Nettleton seeking a declaratory judgment and other relief. In her second complaint, Conwill alleged that she was owner

in fee simple of the disputed property pursuant to her having obtained a default judgment from the heirs and devisees of the last record owners of the property in dispute and having obtained quitclaim deeds from certain other property owners. In the alternative, Conwill alleges that she is the owner in fee simple of the disputed land. In a final decree dated November 3, 1992, the trial court, stating that it had considered the pleadings of the parties, the stipulation, and all memorandum trial briefs, ruled against the Town of Nettleton based upon Conwill's theory of ownership, thereby vesting fee simple title in the disputed land to Conwill. On November 30, 1992, the Town of Nettleton filed its notice of appeal with this Court.

DISCUSSION OF LAW

¶3 This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous. McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992). The Town of Nettleton contends that according to prevailing case, law, the Town of Nettleton had the ability to sell to the Nettleton Church of Christ the property in dispute, as the property had been dedicated to the town via a grant in fee simple under the theories of common law dedication and statutory dedication. Under a theory of common law dedication, there are no sufficient facts which could show an intent on the part of the Town of Nettleton to abandon said property, and under a theory of statutory dedication, there is no possibility of abandonment of the dedication. The Town of Nettleton maintains that the land in dispute was dedicated to the Town of Nettleton and that said dedication was accepted and never abandoned.

I. Was there a proper dedication of private lands for public use?

¶4 Dedication is the setting aside of land for public use. It "has been defined as an appropriation of realty by the owner to the use of the public and the adoption thereof by the public having respect to the possession of the land and not of the permanent estate." 23 Am.Jur.2d, Dedication § 1. There are two types of dedication: common law and statutory. Two distinctions separate the different types of dedication. First, the common law dedication operates by way of an equitable estoppel, whereas a statutory dedication operates by way of grant. Second, a common law dedication usually creates a mere easement, whereas in a statutory dedication the fee of the property is in the public. 23 Am.Jur.2d, Dedication § 3.

¶5 It is well-settled law in Mississippi that land sold according to a plat or map will dedicate the streets, alleys, squares, and other public ways marked on the map or plat to the public for public use. See, e.g., Luter v. Crawford, 230 Miss. 81, 92 So.2d 348 (1957); Skrmetta v. Moore, 227 Miss. 119, 86 So.2d 46 (1956); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927); Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958 (1904); City of Vicksburg v. Marshall, 59 Miss. 563 (1882); Briel v. City of Natchez, 48 Miss. 423 (1873); Vick and Rappleye v. Mayor and Alderman of Vicksburg, 1 How. 379 (Miss.1837).

¶6 Mississippi Code Annotated section 21-19-63 provides for statutory dedication. The statute reads as follows:

The governing authorities of municipalities may provide that any person desiring to subdivide a tract of land within the corporate limits, shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county. Where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys (Emphasis added.)

or other public ways have not been actually opened for the use of the public.

¶7 This section provides for the dedication of portions of the land which the subdivision maps purport to be public property. This statute seems to embrace the holding of Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927), and codify it. The Town of Nettleton correctly states that it has a statutory dedication. Both parties agree that the Holmes Survey is authentic and the survey that was referenced in all the transactions concerning the property in Block 16. Thus, from a literal reading of the statute, it seems that the alleys have been dedicated to the land. The 100' X 100' block in the middle is not clearly included in the dedication. The statute refers to "streets, roads, alleys and other public ways." This block referred to as Tract # 1 is a square piece of property in the middle of all the subdivided lots. It does not seem to be a street, road or alley, etc. Thus, we must ask, "Can it be considered to be dedicated like the other alleys?" American Jurisprudence 2d states the following in regards to statutory dedication:

The doctrine of dedication by plat or map is frequently connected with the sale of lots shown on a plat or map. By making such a sale, the owner of a tract of land manifests an intent to dedicate the streets, alleys, parks, squares, or other places designated on the plat or map for public use, unless a contrary intent is shown, as where it appears that the reference to or mention of a street in the plat or map is solely for the purpose of description.

23 Am.Jur.2d, Dedication § 31 (emphasis added).

¶8 The terminology "streets, roads, alleys and other public ways" is not intended to limit the dedication to merely passageways. It seems evident that other public ways include open squares in the center of a block. This Court has previously stated that " '[u]nless an intention to the contrary is disclosed, it is generally held that where the owner sells real property with reference to a map or plat, he manifests an intention to dedicate to public uses squares or parks indicated on the map or plat.' " Board of Mayor and Aldermen of Yazoo City, Miss. v. Wilson, 232 Miss. 435, 440-41, 99 So.2d 674, 677 (1958) (emphasis added). It is evident that Conwill did not show any contrary intent. Therefore, the square may be considered dedicated just as the alleyways were dedicated. We hold it to be a public way, thus, the Town of Nettleton has fee simple title in the property and it was not error for them to attempt to sell the land. The court below was in error and should be reversed.

II. Whether or not the property has been abandoned by the

Town of Nettleton?

¶9 Because we have determined there to be a statutory dedication, there is no possibility of abandonment. However, even if there was a common law dedication, we still would not find an abandonment by the Town of Nettleton. If the Town of Nettleton abandoned said dedication, it would revert and subsequently vest title in the abutting property owners. "To constitute an abandonment, the use for which the property is dedicated must become impossible of execution, or the object of the use must wholly or totally fail." 23 Am.Jur.2d Dedication § 67. We have held that mere nonuser will not constitute an abandonment. Bright v. Michel, 242 Miss. 738, 137 So.2d 155, 158 (1962).

¶10 Conwill's only argument to support abandonment is nonuser. She states that the minutes of the Board reflecting that the 100' X 100' was surplusage is evidence of abandonment. However, this evidence does not rise to the requirements of abandonment. Thus, the Town of Nettleton has a proper dedication that has not been abandoned. Therefore, it is owner in fee simple.

CONCLUSION

¶11 The Town of Nettleton is the property owner in fee simple of the disputed land. The land was statutorily dedicated to the city pursuant to Miss.Code Ann. § 21-19-63. Thus, the decision of the lower court should be reversed and rendered.

¶12 REVERSED AND RENDERED.

DAN LEE, C.J., PRATHER and SULLIVAN, P.JJ., and BANKS, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.

MILLS, J., not participating.

BANKS, Justice, dissenting to the denial of the motion for rehearing:

¶13 After a thorough review of...