City of Vicksburg v. Marshall

59 Miss. 563

• Court: Mississippi Supreme Court
• Decided: April 15, 1882
• Status: Published

Opinion

Cooper J.,

delivered the opinion of the court.

The complainant and those under whom he claims title purchased the property occupied by him, as lots laid off, surveyed and sold as a part of Pinckardia, and cannot controvert the fact of dedication by Pinckard of the streets described in the plat. The fact that the plat was not formally enrolled by him until after the sale of the lots now owned by the appellee does not at all affect the question of dedication, for it is immaterial when the dedication was formally made, since it is clear that the deed from Pinckard to Rapplege did not convey the street, but only the lot abutting on the street, and therefore he could dedicate it to the public as well after as before the .sale. But the dedication was in fact made before the enrolment of the plat. The survey and sale of lots with reference to the streets was in itself a dedication. Brown v. Manning, 6 Ohio, 298; Dillon Mun. Corp. §§ 638, 640.

The streets in an incorporated town are held by the corporation in trust for the public, and an adverse possession thereof by an abutting owner cannot bar the right of the corporation to open it for public use. Dillon Mun. Corp. § 675.

If it is admitted that the corporation had tire power to adopt a conventional line as the boundary of Washington Street by agreement with the appellee, as it is stated in his supplemental bill to have done, the evidence in support of the allegation is entirely insufficient to establish such agreement. No assent of the corporation is shown to have been given to this line, except through the commissioner of streets, and in the absence of authority on his part to make such contract, it was, if made, ineffectual as against the city.

We consider the only question in the case to be, whether the true line of Washington Street has been established by the evidence. We are of opinion that it has been done, and that either the line run by Dabney, or that concurred in by other survejmrs who had previously, by running from another point, found the line to be from two and a half to two and a quarter feet further east than his, is the true line of the street. In other words we think the direction of the street south of Veto Street is south, seven degrees west, and this is the material point in controversy. The line as run by Dabney starting from “Brungard’s Corner,” goes 2^. feet further west than the line run on the same angle of variation by other surveyors beginning at another point.

We think the probabilities are that the Dabney survey is correct, but as it seems that the other line has been to a considerable extent recognized by persons building on the street as the true line, and as it is possible that as to these persons the city is estopped to deny the correctness of this survey, we will give to the appellee the benefit of claiming this to be the true line, and therefore direct that when this case is remanded to the lower court, a decree shall be made perpetuating the injunction as to that part of the lot lying wes.t of a line drawn %Vo ^eetl east °h the line run by Dabney, and otherwise it shall be dissolved.

Decree reversed.