Riley v. Richardson, 46788
| Decision Date | 09 October 1972 |
| Docket Number | No. 46788,46788 |
| Citation | 267 So.2d 901 |
| Parties | W. A. RILEY v. Wills RICHARDSON et al. |
| Court | Mississippi Supreme Court |
Adams, Long & Adams, Tupelo, for appellant.
Walter M. O'Barr, Okolona, for appellees.
This is an appeal from a decree of the Chancery Court of Chickasaw County which dismissed the appellant's bill of complaint seeking to restrain the appellees by injunction from using certain lands lying in Lee County.
The bill of complaint alleges that the appellant is the owner of a parcel of land in the Southwest Quarter of Section 36, Township 11, Range 5 East, in Lee County, Mississippi. It further alleges that the identical land was heretofore the subject of litigation between the same parties in 1947. The appellees then sought to have title to the East Half of the West Half of the Northwest Quarter of Section 1, Township 12, Range 5 East, and East Half of the Northwest Quarter of Section 1, Township 12, Range 5 East, of Chickasaw County, established in them and to cancel as a cloud upon their title the claim of the appellant to a 40-foot strip of land immediately south of a new gravelled road. The 1947 bill of complaint alleged that the new road was the line separating the property of the parties as well as being the boundary between Lee and Chickasaw Counties.
The defendant in the former suit, appellant here, denied that the 'new county line road' constructed about 1928 or 1929 was ever recognized as the county line, or the northern boundary of the appellees' property or the southern boundary of his property. The issues presented by the bill of complaint and answer were whether the 1928 'new county line road' was the northern boundary of Chickasaw County in the area and whether title to the lands immediately south thereof was vested in the complainants. On these issues the chancellor found that the complainants had failed to prove by a preponderance of the evidence the material allegations of the bill and it was dismissed with prejudice.
The complaint in this suit now seeks to enjoin the appellees from their use of the property south of the 'new county line road' and north of an old road, called the 'old county line road,' which is depicted upon a map attached to the answer in the former suit to be the county line. The complainant alleges the old road is the true county line and prays that he be declared the owner of the land between these two roads.
The defendants in their answer admit that they have cultivated the lands involved, but assert that the same are situated in Chickasaw County and they deny specifically the accuracy of the map attached to the answer in the former suit depicting the old county line road to be the north line of Chickasaw County or the south line of Lee County.
The complainant alleges the lands in controversy lie in Lee County. The defendants aver that the lands lie solely in Chickasaw County. The issue is the location of the line between these counties in this area as it is the southern boundary of the appellant's property.
The appellant contends that the lower court erred in dismissing his bill of complaint, arguing that the 1947 decree is res judicata of the issue. He contends the decree of dismissal had the effect of establishing the old county line road as the true line between the litigants as well as conclusively demonstrating it to be the county line. While it is generally true that a final decree dismissing a bill to remove clouds, though resulting from insufficient evidence, is res judicata of the title between the same parties, Chiles v. Champenois, 69 Miss. 603, 13 So. 840 (1891), we do not perceive the material allegations of the former suit to establish the 'new county line road' as the county line and to decree title in the appellees to the lands south of it, upon a dismissal with prejudice, to have the effect of adjudicating the old county line road to be the proper line dividing the counties.
In Scottish-American Mortgage Company v. Bunckley, 88 Miss. 641, 654, 41 So. 502, 505 (1906), on suggestion of error we stated:
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...Sellers comports with the procedure stated in Coastal States Ltd. v. City of Gulfport, 480 So.2d 1113 (Miss.1985); Riley v. Richardson, 267 So.2d 901 (Miss.1972); Burrow v. Brown, 190 So.2d 855 (Miss.1966); Buckwalter Lbr. Co. v. Wright, 159 Miss. 470, 132 So. 443 (1931). Roland Roberts, So......
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Coastal States Ltd. v. City of Gulfport
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