Whitworth v. Berry , 69 Miss. 882 ( 1892 )

Cooper, J.,

delivered the opinion of the court.

These eases are submitted together, and having, by agreement, been tried in the court below upon the same evidence, and presenting the same question, may be disposed of as one.

The first was commenced by Whitworth and others against Berry to perpetually enjoin him from fencing in a strip of land claimed by him as a part of his curtilage, but which the complainants claimed to be one of the streets of McComb City wrongfully inclosed by Berry. . The second is a suit by Berry against McComb City, seeking to enjoin the city from dealing with said strip of land as one of the streets-of said city. On final hearing, the chancellor decided both suits in favor, of Berry, to reverse which decrees these appeals are taken.

Although there is some conflict in the testimony, the effect of it as a whole is to establish these facts: The territory comprising McComb City, or the most thereof, was owned by the Mississippi Valley Company, an incorporated company under the laws of this state. This company platted its lands, including that portion on which the residence of Berry is located, and on this plat the strip of land in controversy appears as a part of a street. The Illinois Central Bailroad entered the corporate limits from the north-west, and intersected the land of the Mississippi Valley Company, cutting off a considerable body of it east of the road. The business and residence part of the town is almost entirely west of the railroad and south of the residence of Berry. The original plat of the town included only the land west of the railroad. The land of the Mississippi Valley Company east of the railroad, though platted in the year 1876, seems, only within the last few years to have come in demand. There is no evidence that any lot east of the road was sold by the company before the sale to Bergland of the lot now owned by Berry, nor that any sale of any lot thereof was afterwards made until within the last three years. The land immediately south of Berry’s residence has always been owned by the'railroad company, and on it are located its shops, round-house, etc. Immediately north of Berry’s house the Mississippi Valley Company had donated several squares to the Southern Industrial Company, whose works were located thereon. About the year 1876, one Bergland, who was the manager of the Southern Industrial Company, owned an] resided upon a square of ground south of its shops, and north of the lands of the railroad. On the south and east of his land a boot-shaped, undescribed parcel of laud was situated, which, by reason of variation in different surveys, had not been described on the plat of its land by the Mississippi Yalley Company as part of any square, though it abutted on the land of Berg-land. He desired to purchase this irregularly-shaped tract, and, it seems, had some understanding with the valley company about it, for he fenced it in as a part of his lot. In 1880 he applied to the secretary of the company for a written contract, evidencing his right to buy it, and the secretary, relying upon his representation of its description, executed a contract to convey it upon payment of the purchase-price, in which contract the land was described by such metes and bounds as would carry .that portion now claimed as a street; but finally, when the deed was executed, the land was described as being conveyed with reference to the plat of the land as appearing by the company’s revised map, on which the street is distinctly marked. Although it is not distinctly stated in the evidence of any of the witnesses, it is, we think, sufficiently shown that this map was made after the town west of the railroad had been very generally built up, and that its purpose was, among others, to show the land east of the railroad, which the company contemplated opening up as an addition to the town. The facts in this respect are not fully developed, and, as we have stated, it does not appear that the Mississippi Yalley .Company sold any lots east of the railroad until the year 1890 or 1891, when it possibly sold to the defendants, Whitworth, Dunn, Jones and Watkins, the lots now owned by them. There is no distinct averment of this fact in the pleadings, and the evidence is equally indefinite. It does appear that the land east of the lot sold to Bergland has remained woodland, though platted on the revised map; and it also clearly appears that Berg-land, and those claiming under him, have for more than ten years been in the exclusive adverse possession of the land now sought to be dealt with as a street, claiming it as a part of the lot conveyed to him by the MississippiValley Company.

We have stated all the facts relied upon as evidence of dedication, except that in the answer of the defendants to the bill filed by Berry, it is averred that the Mississippi Valley Company filed a copy of the revised map in the office of the mayor. No evidence of this fact was introduced, for, though the witnesses say that there was such a copy in said office, it does not appear to have been supplied by the Valley Company, or that it had any knowledge that the copy wag- in the office of the municipality.

We are of opinion that the evidence is not sufficient to establish a dedication of the street by the owner of the land. The only thing done by it, so far as appears in evidence, was to make a map of the land and sell the lot to Bergland, who immediately closed up what is now claimed as a street, and has continued to occupy it as a part of his residence and curtilage ever since. The mere making of a map of one’s own land, on which streets and squares are. shown, followed by no dealing with the property by the owner or the public in reference thereto, is certainly not a dedication of the streets appearing thereon. Sanford v. Meridian, 52 Miss., 383.

Affirmed.