Yazoo & M. v. R. Co. v. Bolivar County

111 So. 581, 146 Miss. 30, 1927 Miss. LEXIS 201

• Court: Mississippi Supreme Court
• Decided: February 7, 1927
• Docket: No. 25214.
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

. This was a suit in equity by Bolivar county against the appellant railroad company, in which the bill of complaint alleged, in substance, that the appellant was in possession of a right of way one hundred feet wide over three of the sixteenth sections of the county; that said lands were school lands, held in trust by ithe state, through the agencies of its creation, for the benefit of the inhabitants of the townships, and for the support of the public schools within the same; that the appellant claimed title to said right of way under and by virtue of a certain invalid and void order of the board of supervisors of Bolivar county passed at the July, 1883, term thereof, whereby the said board undertook to grant said rights of way across said land without consideration, to the New Orleans, Baton Bouge, Vicksburg- & Memphis Bailroad Company, or any other company or companies with which it might thereafter he merged or consolidated; that the possession and claim of the appellant cast a cloud on the title of the complainant, and rendered such lands unavailable for the carrying out of the trust; that the said railroad company later consolidated with the Louisville, New Orleans & Tesas Eailway Company; that the latter company, on October 24, 1892, consolidated with the appellant, the Yazoo & Mississippi Valley Bailroad Company, and that said companies had successively been in possession of said rights of way without paying any rental therefor ;■ and that a large sum of money was due from the appellant to the complainant as rent for the use and occupation of said lands for said years. The bill prayed for a decree canceling the claims of the appellant to said lands as clouds thereon, and for an accounting for the rents, issues, and profits, and for a writ of assistance to place complainants in possession of said lands, and for general relief. The said order of the board of supervisors passed at the July, 1883, term, which was filed with the bill of complaint as an exhibit thereto, reads as follows:

“Be it remembered at the above-stated term of the honorable board of supervisors of said county, an order was then and there made by said board, which was in the following words, to-wit:

“ ‘The board having heard and considered the petition of the New Orleans, Baton B\ouge, Vicksburg & Memphis Bailroad Company for a right of way through the lands of the named, and having decided to grant the same, it is therefore ordered by the Board that a right of way for its railroad one hundred feet wide, measuring from the center of the right of way fifty feet on each side, be and is hereby granted to the said railroad company or any other company or companies with which it may be hereafter merged or consolidated through the following unleased school sections in Bolivar county, Miss., to-wit:

“ ‘ Section. 16, township 21, range 5, section 16, town ship 22, range 5, and section 16 in township 23, range 5, said right of way to be on such permanent line for its railroad through said land as said company by its engineers has already located or may hereafter locate. ’ ’ ’

The defendant answered the bill, setting up various defenses, but the only portion of the answer which is material here is the following paragraph:

i£The said defendant admits that it first entered into possession under and by virtue of that instrument of writing executed by the board of supervisors at the July term 1883, by the terms of which the said board of supervisors of Bolivar county, Miss., granted to the New Orleans, Baton Eouge, Vicksburg & Memphis Bailroad Company and other companies with which it might thereafter be merged or consolidated, right of way for an undetermined period, and admits that the paper made Exhibit A to the original bill is a true copy of the instrument of writing, under the terms of which defendant’s predecessor in title entered, but this defendant denies that such instrument of writing is in its-legal effect a deed, or a pretended deed, but would show that it is a grant of all such interest in the lands occupied by it as the said board of supervisors had power to A^esfc in defendant’s predecessors in title or in any one else, t.o-wit, right of way one hundred feet wide across said lands at such points as defendant’s predecessors in title might locate its railroad, and denies that said Exhibit A is a pretended, invalid, or void order of the board of supervisors of Bolivar county, Miss., but would show that said instrument was efficacious to vest in this defendant, and those through whom it claims a right to use said strips of land for a period of ninety-nine years from the date of said instrument. ”

In dealing with sixteenth section lands, the legislature, by section 4699, Code of 1906 (section 7509, Hemingway’s Code), has provided that “adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima-facie evidence in sncb case that the law authorizing the disposition of the lands had been complied with and the lease or sale duly made. If the claim he under a lease, the time at which the lease expires shall be fixed by the court,” and the effect of this statute has been several times passed upon by this court.

In the case of Carroll County v. Estes, 72 Miss. 173, 16 So. 908, which was a suit by the county to cancel the claim of the defendant to certain sixteenth section lands, in discussing the effect of this statute, Chief Justice Cooper, speaking for the court, said:

“The chancellor held that, under the operation of this statute, the claim of the defendant to the land above described was sustained, and by his decree fixed the time at which the lease would expire. It is contended by counsel for appellant that the statute was not intended to supply a rule of evidence in any class of cases except-those in which a lease of some sort had really been made, but its validity is attacked by reason of some infirmity arising by reason of a want of evidence that the law authorizing the lease had in all things been complied with; that the defendant must first show a lease not invalid on its face, and then, upon proof of possession, a presumption will arise under the statute that all things directed by the law to be done were done by the authorities making the lease. We think the statute has a broader application, as was held by the chancellor, and that when, as here, it is shown that, for the period named, the defendant has been in the adverse possession of the land, claiming possession by reason of an alleged lease, such possession is sufficient to entitle him to invoke the presumption created by the statute as a rule of evidence. In other words, when these facts are shown, it devolves upon the complainant to overturn the prima-facie case thus made by sufficient evidence that no valid lease was in fact made.”

The case of Amite County v. Steen, 72 Miss. 567, 17 So. 930, was a suit by the county to establish title to a certain tract of sixteenth, section lands, and in his answer the defendant set up a claim of title under a ninety-nine-yeax lease, and adverse possession thereunder for a period of twenty-five years. On the hearing of the cause the defendant proved adverse possession by himself and those through whom he held, but failed to show that any lease of the land had even in fact been made. In discussing the application and effect of the statute (section 4699, Code of 1906 [section 7509, Hemingway’s Code]), this court, by Judge Campbell., said:

“The adverse possession of the sixteenth section for more than twenty-five years by the appellee and those under whom he claimed, under a claim of right, was prima-facie evidence 'that the law authorizing the disposition of the land had been complied with and the lease or sale duly made.’ Code 1892, section 4148.

“The proposition that the defendant who shows the adverse possession required to raise the presumption of a lease or sale duly made, in the long ago, must also show that a lease or sale was actually made, is not mairitain-ble. Evidence of adverse possession, under claim of right or title, for twenty-five years, protects the title against successful assailment, unless it shall be shown that a lease or sale of the land was not duly made.”

In the case of Forsdick v. Tallahatchie County, 76 Miss. 622, 24 So. 962, the defendant asserted a title or right to certain sixteenth section lands under a lease thereof for ninety-nine years to Elisha West, executed on the 3d day of July, 1855, by the president and secretary, respectively, of the board of trustees of said township, and by mesne conveyances thereof from West and his successors in title to himself. The lease did not recite that the trustees leased said land for ninety-nine years at the request of a majority of the heads of families of said township, and that it was leased at the courthouse of said county between ten o’clock A. M. and four o’clock P. M. on six weeks’ notice thereof, nor was the lease signed by the five trustees, but only by the president and secretary of tlie hoard, and on account of these defects the county claimed that the lease was void, “and that possession for twenty-five years under said lease does not raise a presumption that the steps necessary for a valid execution of a lease had been complied with or taken.” In discussing the application of the statute (section 4699, Code of 1906 [section 7509, Hemingway’s Code]), to this state of facts, Judge Te&bax., speaking for the court, said:

“If the lease or contract executed by Brown and Harris to West falls short of being a title to the land in question, it is at least a ‘ claim of right under which West and his successors in the ownership of said claim have possessed the land adversely for twenty-five years. It is the alternative ground of the statute for supporting an indefeasible title of twenty-five years’ adverse possession, and is and was such an equity as drew to it a right to demand and have of the proper authorities a perfect title to the land for the ninety-nine years. The paper executed by Brown and West to Harris bound the county to execute a valid lease to West, and was a right sufficient to ripen by twenty-five years’s adverse possession of West and his successors in the ownership of such right into a title which the county cannot now assail.”

In this ease, the statute so requiring, this court fixed the term of the lease to be ninety-nine years.

We think the announcement of the court in these three cases is controlling in the case at bar. Under the provisions of section 732, Code of 1880, which was in effect at the time of the passage of the order of July, 1883, the board of supervisors had the authority under certain restrictions and conditions to lease the lands for a term of ninety-nine years, or a shorter term. Conceding that this order may not be construed to be technically a lease, it is at least a claim of right under which the railroad company and its successors in the ownership of said' claim have possessed the land adversely for more than forty years, and, in the absence of an affirmative showing that no valid lease was in fact made, the title acquired by this adverse possession of more than twenty-five years, under claim of right or title, cannot be successfully assailed.

The decree of the court below will therefore be reversed, and decree will be entered here fixing’ the expiration of the lease to be July 2,1982, and dismissing the bill of complaint.

.Reversed and decree here.