Turner v. Morris

• Decision Date: 13 March 1944
• Docket Number: 35563.
• Citation: 196 Miss. 297,17 So.2d 205
• Court: Mississippi Supreme Court
• Parties: TURNER v. MORRIS et al.

17 So.2d 205

196 Miss. 297

TURNER v. MORRIS et al.

No. 35563.

Supreme Court of Mississippi

March 13, 1944

Hannah Simrall & Foote, of Hattiesburg, for appellant.

E J. Currie, of Hattiesburg, for appellees.

SMITH Chief Justice.

The appellant and the appellees own adjoining portions of Lot 9 in the City of Hattiesburg abutting on Front Street. The appellees have erected a brick building on their land which encroaches on that of the appellant for two feet, beginning at Front Street and running back thirty feet, which will hereinafter be referred to as the two by thirty foot strip of land. The appellant sought, but was denied in the Court below, an injunction directing the appellees to remove that part of their building covering this two by thirty foot strip of land owned by him. In September, 1940, the appellant owned all of this land. That now owned by the appellees was then vacant, but on that now owned by the appellant there was and still is a building occupied and used by a bus company as a bus station, the ground between it and Front Street being paved with concrete the width of the building. The appelleees desiring to purchase that part of the lot now owned by them employed Edmondson to obtain it for them, who procured a deed thereto to himself from the appellant and immediately conveyed it to the appellees. By these deeds the boundary between the land conveyed to Edmondson and by him to the appellees and that remaining to the appellant was a straight line parallel with and two feet from the bus station building and the concrete pavement on the appellant's remaining land. Both of these deeds contain this clause: "It is understood and agreed that the grantee is to have a perpetual right to a stairway adjoining the building now known as the bus depot, leading from Front Street to the basement of the building which is to be erected." Shortly after receiving their deed to this property the appellees erected a three story brick building, including its basement, thereon one side of which adjoins the appellant's property and covers all of this two by thirty foot strip of land. At the end of this thirty feet where the bus station building is the wall of the appellees' building drops back two feet and from there to the rear of the lot is two feet from the bus station building.

About fifteen feet from Front Street a door was left in the wall of this building leading from the pavement on the appellant's property into the building and to two stairways therein, one leading down to the basement and another up to the floors above.

The appellees claim that they had the right to construct their building over this two foot strip of the appellant's land under the stairway clause in the appellant's deed to Edmondson and his deed to them. In this they are mistaken. The reason given by the appellees in support of this claim is that they had the right to the use of this two by thirty foot strip of land for a stairway and that a wall thereon is necessary to sustain this stairway. If a sustaining wall is necessary for a stairway, as to which we express no opinion that fact has no application here for the stairway clause in these deeds vests the appellees with the right only to use so much of this strip of land as is necessary for the construction of a stairway from the surface thereof down and into the basement of their building. It clearly does not confer on them the right to construct a stairway on this strip of land leading from its surface to the upper floors of the appellees' building.

Two only of the other contentions of the appellees are of sufficient substance to require a response thereto, they are (1) the appellant is estopped by his and his agent's conduct from objecting to the appellees' building remaining on this two-foot strip of his land; and (2) his right to relief, if any, is only to recover the damages, if any, he has sustained because of this encroachment, and that no such damages were proven. Both of these contentions will be considered together.

The general rule is that a landowner is entitled to an injunction directing the removal of a trespassing structure on his land erected thereon by the owner of adjoining land. "The facts that the aggrieved owner suffers little or no damage from the...