Hainer v. Heidenreich

Mississippi Supreme Court

Hainer v. Heidenreich

107 So. 196, 107 So. 197, 142 Miss. 65, 1926 Miss. LEXIS 59

CourtMississippi Supreme Court

DecidedFebruary 22, 1926

DocketNo. 25300.

StatusPublished

Cited by1 cases

This text of 107 So. 196 (Hainer v. Heidenreich) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hainer v. Heidenreich, 107 So. 196, 107 So. 197, 142 Miss. 65, 1926 Miss. LEXIS 59 (Mich. 1926).

Pincite

Opinion

*69 Anderson, J.,

delivered the opinion of the court.

Appellant filed his bill in the chancery court of Pike county- against appellees to enjoin the latter from obstructing an alley through square 38 in McComb City. There was a trial on the bill, answer, and proofs, resulting in a final decree dismissing appellant’s bill, from which decree appellant prosecutes this appeal.

The trial court, in dismissing appellant’s bill, necessarily held that appellant had neither acquired an easement in the alley in question by prescription nor the right to have it kept open for his convenience as one of the public on the ground that appellees had dedicated it to public use, which dedication had been accepted by the public by user.

The principles of law governing the case are settled by a long line of decisions of this court. There is no real controversy between the parties as to the law of the case. The difficulty arises in its application. It was a question of fact resting alone in parol whether or. not appellant had acquired an easement in the alley by prescription. It was also a question of fact, resting alone in parol as to whether appellees had dedicated the alley to public use, and whether such dedication had been accepted by the public.

The evidence was conflicting on these issue's of fact. We differ with appellant in his. contention that the trial court made an erroneous application of the law to the proven facts of the case. There was substantial evidence, we think, tending to establish all the issues of fact involved in appellees’ favor.

As to whether there was a dedication of the alley to public use and an acceptance of such dedication by the public, we think the evidence fails to measure up to the requirement of the law as declared in Kinnare v. Gregory, 55 Miss. 612. The evidence must unequivocally manifest an intention on the part of the alleged dedicator that *70 the public shall have and enjoy the way claimed, and likewise there must be the same character of acceptance of the way by the public.

Affirmed.

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*69 Anderson, J.,

delivered the opinion of the court.

Appellant filed his bill in the chancery court of Pike county- against appellees to enjoin the latter from obstructing an alley through square 38 in McComb City. There was a trial on the bill, answer, and proofs, resulting in a final decree dismissing appellant’s bill, from which decree appellant prosecutes this appeal.

The trial court, in dismissing appellant’s bill, necessarily held that appellant had neither acquired an easement in the alley in question by prescription nor the right to have it kept open for his convenience as one of the public on the ground that appellees had dedicated it to public use, which dedication had been accepted by the public by user.

The principles of law governing the case are settled by a long line of decisions of this court. There is no real controversy between the parties as to the law of the case. The difficulty arises in its application. It was a question of fact resting alone in parol whether or. not appellant had acquired an easement in the alley by prescription. It was also a question of fact, resting alone in parol as to whether appellees had dedicated the alley to public use, and whether such dedication had been accepted by the public.

The evidence was conflicting on these issue's of fact. We differ with appellant in his. contention that the trial court made an erroneous application of the law to the proven facts of the case. There was substantial evidence, we think, tending to establish all the issues of fact involved in appellees’ favor.

As to whether there was a dedication of the alley to public use and an acceptance of such dedication by the public, we think the evidence fails to measure up to the requirement of the law as declared in Kinnare v. Gregory, 55 Miss. 612. The evidence must unequivocally manifest an intention on the part of the alleged dedicator that *70 the public shall have and enjoy the way claimed, and likewise there must be the same character of acceptance of the way by the public.

Affirmed.

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Bluebook (online)

107 So. 196, 107 So. 197, 142 Miss. 65, 1926 Miss. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hainer-v-heidenreich-miss-1926.

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