Skrmetta v. Moore

• Decision Date: 05 March 1956
• Docket Number: No. 39999,39999
• Citation: 86 So.2d 46,227 Miss. 119
• Parties: Marko SKRMETTA v. Mrs. L. G. MOORE et al.
• Court: Mississippi Supreme Court

Page 46

86 So.2d 46

227 Miss. 119

Marko SKRMETTA v. Mrs. L. G. MOORE et al.

No. 39999.

Supreme Court of Mississippi.

March 5, 1956.

On Motion to Correct Judgment March 26, 1956.

J. D. Stennis, Jr., Biloxi, Morse & Morse, Gulfport, for appellant.

Thos. J. Wiltz, Biloxi, for appellees.

ROBERDS, Presiding Justice.

The subject of this litigation is the title to a small parcel of land described as that part of Oak Street extending from the south side of East Beach Street (formerly Front Street) south to the Gulf of Mexico. Oak Street runs north and south and is sixty feet wide. The parcel here involved is the south end of Oak Street extending to the Gulf, apparently a distance of about one hundred and fifty feet. This litigation was begun by a bill in chancery filed by Mrs. L. G. Moore against Lewis E. Curtis undertaking to require Curtis to convey to her title to said lot. Skrmetta intervened in that proceeding, asserting title in himself, and assumed the attitude of complainant therein. When Skrmetta rested his case, the chancellor sustained a motion to exclude the testimony he had offered and dismissed his bill. Skrmetta appealed to this Court. We reversed and remanded the cause for another trial. Skrmetta v. Moore, 202 Miss. 585, 30 So.2d 53. It appeared, in the course of the former trial, that the City of Biloxi might have an easement over said parcel of land for street purposes. When the cause was remanded, the City of Biloxi was permitted to become a party to the litigation. The chancellor, at the close of the second trial, held that said City did have an easement over the parcel of land for street purposes. From that decree Skrmetta appealed to this Court. Neither Mrs. Moore nor Mr. Curtis appealed; therefore, the parties before us now are Skrmetta and the City of Biloxi. The question is whether the chancellor was justified in holding that the City of Biloxi has an easement for street purposes over said strip of land. And that question narrows itself, under the former and the present proceedings, to the question whether said City has abandoned or in any manner released its easement for street purposes over and across said parcel of land. We make this statement because this Court, on the former appeal and as the record then disclosed the facts, found that the owners of the property adjoining on Oak Street, both on the east and the went thereof, had conveyed such adjoining property by reference to Oak Street, as shown on a public plat, and as being bounded on the south by the Mississippi Sound, or the Gulf of Mexico, so as to be a dedication for street purposes of the parcel here in dispute as a part of Oak Street, and that the disclosed facts in said former trial established an acceptance and user by the City of the parcel in dispute as a public street. On retrial the record on the former trial, which this Court on the former appeal thought established an acceptance and user by the City of the easement over the disputed parcel of land, was introduced in evidence. In addition to that other testimony was introduced by the City on the retrial which supported said conclusion and the conclusion of the chancellor on the second trial to the same effect. Therefore, the specific question before us now is whether there is substantial testimony to support the finding of the chancellor that the City had not released or abandoned said easement rights.

We deem it unnecessary to detail all of the testimony. The record consists of four volumes. There was testimony to the effect that the adjoining property owners recognized the street easement rights of the City in the property; that for thirty-two years the City had charge of the street; that the south end of the street was usable, and was used, as such; that the City built up the street by placing shells thereon, repairing and draining it; that the public generally had traveled and used this parcel of ground as a street, especially in going to and from the water front of the Gulf; that no one interfered, or undertook to stop, such use; that the property was never assessed for taxes until a short time before the beginning of this litigation, and then it was assessed through error. Mr. Elmer Williams, a witness for Skrmetta, testified that Oak Street extended south to the edge of the waters of the Gulf of Mexico. There is no official record of the City indicating an abandonment of the south end of Oak Street. Mr. Skrmetta never paid any city taxes on the property until after this litigation was instituted. Mr. Tucei testified that he was employed by the City in the Street Department and that the City worked, drained, and kept Oak Street in repair, including the part thereof in controversy; that he knows this continued for twenty years and up to the time he ceased to be superintendent of streets some four years before he testified. A city sewer was laid...