Westbrook v. City of Jackson

• Decision Date: 12 December 1932
• Docket Number: 29650
• Citation: 165 Miss. 660,145 So. 86
• Court: Mississippi Supreme Court
• Parties: WESTBROOK et al. v. CITY OF JACKSON

145 So. 86

165 Miss. 660

WESTBROOK et al. v. CITY OF JACKSON

No. 29650

Supreme Court of Mississippi

December 12, 1932

Division A

Suggestion Of Error Overruled January 23, 1933.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by W. W. Westbrook and others against the City of Jackson, in which defendant filed a cross-bill. From the decree complainants appeal. Affirmed.

Affirmed.

Wells, Jones, Wells & Lipscomb, of Jackson, for appellants.

Chapter 24, Acts of 1844, required the sale of all lots belonging to the state in the city, except certain designated lots, but the lots involved in this case are not included in the exception.

There is an official map of the city of Jackson, known as Daniel's Official Map, made by H. C. Daniel under the direction of the Legislature and a certified copy of this map, from the Library of Congress.

The City of Jackson has solemnly spoken, through this certificate as to the nature of these lots in its approval of Daniel's map by its officials, for that map shows these lots to be wild lands, not impressed with a public interest or use and certainly not impressed with any right of the City of Jackson and the city is still cut off from asserting any title thereto on the flimsy theory of the doctrine of lost grant.

The facts do not raise any presumption of lost grant but as a matter of law the inevitable conclusion is against that presumption.

One who invokes the doctrine of lost grant must charge to whom the grant was made.

Dees v. Kingman, 119 Miss. 199.

As against the state a grant would not be presumed from forty years possession and better without showing that the possession at its commencement was rightful.

Doe v. Roe, 20 Ga. 467.

No presumption of lost grant can be indulged if the supposed grantor could not legally have conveyed it.

Hunt v. Hunt, 37 Am. Dec. 130; Spears v. Oakes, 38 S. C. Law 347; Habersham v. Hopkins, 36 S. C. Law 238, 53 Am. Dec. 676; Beach v. Beach, 14 Vt. 28, 39 Am. Dec. 204; Martin v. State, 10 Humphreys, 157.

Since 1844 there was no authority in anyone to sell these lots until the Legislature passed the Act of 1926.

Huber v. Freret, 138 Miss. 238.

There is a necessary implication that since 1890 no lost grant could be presumed against the state.

Dees v. Kingman, 119 Miss. 199.

Mere occupancy and prescription will not sustain the doctrine of lost grant against the State.

Stodder v. Powell, 1 Stewart, 287; State v. Akers, 140 Pa. 637; Commonwealth v. Alburger, 1 Wharton, 469.

If the origin of the title is known and is at variance with the grant sought to be established the presumption of lost grant does not arise nor will it arise where the circumstances are consisent with the non-existence of a grant.

Oregon, etc., R. R. Co. v. Gruddissich, 206 F. 577, 124 C. C. A. 375; Neito v. Carpenter, 21 Cal. 455; Farr v. Swan, 2 Pa. 245; Callender v. Sherman, 27 N.C. 711; Ricard v. Williams, 5 L.Ed. 398; Taylor v. Watkins, 26 Tex. 688; Logan v. Ward, 58 W.Va. 366, 52 S.E. 398.

The presumption must be confined to such deed as that under which the occupant asserted title.

Jackson v. Porter, 13 F. Cases, 7143, 1st Paine 497; Hammond v. Ridgely, 9 Am. Dec. 522.

Record in this case is at variance in the supposition of the grant because the very nature of this property, wild, cut up and overflow land, not only in 1844 but largely at this time, rendered it improbable that any one would have purchased it.

The City of Jackson cannot invoke the doctrine of lost grant against the State of Mississippi even though an individual could, for the reason that it is a creature of the State and cannot be heard to question the acts of its sovereign.

University of South Carolina v. City of Columbia, 93 S.E. 934.

A city cannot assert adverse possession against the county.

Bay St. Louis v. Hancock County, 80 Miss. 364.

Until the State actually obtains its patent from the United States Government no adverse user of any kind runs against it.

Dees v. Kingman, 119 Miss. 199; Willoughby v. Caston, 111 Miss. 688.

W. E. Morse and Green, Green & Jackson, of Jackson, for appellee.

The patent was the act of a ministerial officer.

Grignon v. Astor, 2 How. 344, 11 L.Ed. 293; Stoddard v. Chambers, 2 How. 317, 11 L.Ed. 282; Hit-tuk-ho-mi v. Watts, 7 S. & M. 365; Newman v. Plummer, 4 How. 522.

The grant was to be effective "before the commencement of the public sales of the adjoining and surrounding lands belonging to the United States." Therefore, when the United States treated by entry on its books these two sections as a reservation under a congressional grant, the legal title passed.

Coleman v. Doe, 4 S. & M. 40-47; Wray v. Doe, 10 S. & M. 461; Dickson v. Porter, 23 Miss. 84.

The import of the cases in our books is that the treaty operates as a grant to the reservee, which takes effect upon the particular parcel when specified and located, quite as complete as if the treaty itself had assigned the particular parcel.

Niles v. Anderson, 5 How. 382; Wray v. Doe, 10 S. & M. 452; Harris v. McKisnik, 34 Miss. 469; Minter v. Shirley, 35 Ill. 387.

The grant being complete in itself by the treaty, a patent is unnecessary.

Newman v. Harris, 4 How. 560, 7 S. & M. 366; Best v. Polk, 18 Wall. 117.

When the state ordered a survey of all blank squares, into lots, except such as might be selected as necessary to be reserved as commons, for the health, ornament and convenience of the City of Jackson, "and decided that a map should be made showing the reserved commons," this was a dedication of the reserved squares to the use of the public, and is irrevocable, so far as the dedicator is concerned.

Jones v. Board of Aldermen, 104 Miss. 495, 61. So. 456.

The authenticity of the Smith map was shown by the testimony.

When there had been this peaceable possession by the city since before the Civil War, under possible title validity arising by selection from the Commissioner the land was not subject to disposition of the crematory plant by this ministerial officer, for the law in virtue of this long occupancy will presume the execution of any valid instrument requisite.

Carruth v. Gillespie, 109 Miss. 679, 68 So. 927; Comans v. Tapley, 101 Miss. 203, 57 So. 567.

Although neither limitation nor prescription runs against the United States Government to the impairment of its title to property yet "a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to law.

United States v. Chavez, 175 U.S. 509, 44 L.Ed. 225.

A grant from the sovereign may be presumed from the long-continued, peaceable possession of real property, accompanied by the usual acts of ownership, even as against the sovereign itself.

Caruth v. Gillespie, 68 So. 927, 109 Miss. 679; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Grand Gulf Railroad v. Bryan, 8 S. & M. 279; Carter v. Walker, 65 So. 170; Hewling v. Black, 110 Miss. 225, 40 So. 248; Native Lbr. Co. v. Elmer, 78 So. 703, 117 Miss. 720; Scarbrough v. Native Lbr. Co., 79 So. 85, 118 Miss. 138; Leavenworth v. Hunter, 114 So. 593, 150 Miss. 245; McCain v. Wilson, 5 S.W. 340; Morgan v. Moseley, 266 S.W. 876; Morris v. Moore, 216 S.W. 894; Fuel Co. v. Roberts, 260 S.W. 803; Ahart v. Wilson, 277 S.W. 1077; Herndon v. Vick, 35 S.W. 141; Carter v. Stewart, 231 S.W. 887; Siveley v. McCoy, 234 F. 131; Matthew v. Burton, 17 Grat. 312; Ricard v. Williams, 7 Wheat. 595; U. S. v. Chevess, 44 L.Ed. 255; McCauley v. Graham, 19 S.E. 1041; Dubois v. Peeples, 77 S.E. 708; Lee v. Co. School Bd., 132 S.E. 865; Jarboe v. McAtee's Heirs, 7 B. Monroe 279; Malone v. Long, 97 A. 643; City of Raleigh v. Durfrey, 79 S.E. 436; Lyles v. Fellers, 136 S.E. 13; Eldridge v. Binghampton, 120 N.Y. 30, 24 N.E. 462; Mobley v. Griffin, 104 N.C. 115.

The user of these lots is, with deference inexplicable otherwise than by the assumption that Smith's Map in its declaration is correct.

Lexington v. Hoskins, 96 Miss. 163, 50 So. 561.

W. E. Morse and Franklin, Easterling & Rosenthal, of Jackson, for appellee.

Congress is competent to give title to public lands by legislative grant without the aid of a patent.

Doe v. Mobile, 9 How. 451.

The words "is hereby granted" in an act of Congress granting lands, are the words of absolute donation and import a grant in praesenti. They vest a present title in the grantee although a survey and location are necessary to give precision to it and attach it to any particular tract.

Leavenworth v. United States, 96 U.S. 733, 23 L.Ed. 634.

Lots 35 and 36 were dedicated by Smith's Map for public use.

When the state ordered a survey of all blank squares into lots, except such as might be selected "as necessary to be reserved as commons, for the health, ornament, and convenience of the city of Jackson, and decided that a map should be made showing the reserved 'commons' this was a dedication of the reserved squares to the use of the public, and is irrevocable, so far as the dedicator is concerned.

Jones v. Board of Aldermen, 104 Miss. 449.

Although neither limitations nor prescription runs against the United States Government to the impairment of its title to property, yet "a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law.

United States v. Chavez, 175 U.S. 509, 44 L.Ed. 255.

A grant from the sovereign may be presumed from the long-continued peaceable possession of real property,...