59 So. 2d 327 | Miss. | 1952
By appropriate pleadings and proof, the issue in this case was whether or not a certain fence was the established line between the W% of SWx/4 of SW1/]. and the E% of SW'W of SW14 of Section 19, Township 4 N, Range 5 E. The complainants, J. O. Bowlin et ux. maintained the affirmative, and the defendants Griff Dye et al., contended for the negative.
In 1938, Burnard McGehee owned the W% and Jewel Nunnery owned the E% of this 40 acres. As Nunnery wished to cut some timber the parties engaged the county surveyor, George Terrell, to run the line between them. This was done, and several days later a fence was built on that line. The expense of the survey and the fence was borne by both parties.
McGehee testified that it was a line fence. G. W. Bowlin testified that it was a line fence. Percy Sumrall, who helped to build it, testified that the parties agreed that it was a line fence. George Terrell, the surveyor, although called by the defendants as a witness, testified that it was 'his understanding that the parties were going to put a fence on the line which he ran. It was shown
As against all of this evidence, Jewel Nunnery testified that Terrell’s survey, at the time, appeared to he wrong, and that lie and McGehee erected the fence without any definite understanding. He admitted that he liked to have his fences on the line, and that he did not use the land west of the fence for any purpose thereafter. He subsequently sold his 20 acres, with other lands, to Griff Dye on December 27, 1940.
A short time after his purchase, Dye started to build another fence farther to the west, but McGehee stopped him. J. C. Bowlin, after he purchased from McGehee in 1942, continued the use and occupation of the land west of the fence. In 1947, although Dye again started to build the fence which he originally commenced, Bowlin objected and he did not finish it. Finally in 1949, he completed the fence and took over possession. That act brought this suit. Dye however testified that he completed the fence in 1947, and took possession of the land to the east of it.
The court dismissed the bill and the complainants have appealed here.
The great weight of the evidence supports the conclusion that McGehee and Nunnery put the fence on the line which both of them recognized, and that McGehee and his successors in title remained in possession more than ten years thereafter. In such event, the following cases are decisive: Louis Cohn & Bros. v. Peyton, 145 Miss. 261, 110 So. 509; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Kornegay v. Montgomery, 194 Miss. 274, 12 So. (2d) 423.
However, the learned chancellor, in his opinion at the conclusion of the evidence, erroneously held that the complainants had the burden of proving beyond a reasonable doubt that the fence was built on an agreed line. In Daniels v. Bush, 211 Miss. 1, 50 So. (2d) 563, it was recognized that, under Bule 11, this Court will not re
The cause is, therefore, reversed and remanded for a new trial.
Reversed and remanded.
On Suggestion oe Error
July 17, 1952 (59 So. (2d) 843)
Two suggestions of error have been filed in this cause, one by the appellants and the other by the appellees. Both suggestions of error have been given careful consideration by the Court and in our opinion should be everruled. The appellants, however, in their suggestion of error, have directed the Court’s attention to the fact that the Court, in its opinion rendered on June 9, 1952, failed to mention specifically that part of the controversy' which related to the location of the fence on the boundary line between the 20-acre tract of land owned by the appellants and the tract of land lying immediately north of said 20-acre tract owned by the appellees, Homer Fenn and his wife, Willie Fenn. This response is therefore made to that part of the appellants’ suggestion of error which relates to the controversy between the appellants and the appellees, Fenn.
The above-mentioned fence, according to the record, was erected in 1911. The appellants alleged in their bill of complaint that the fence was not located on the
The surveyor was cross-examined concerning the distance shown in the government field notes which had been used by him in locating the range line between Range 4 East’ and Range 5 East; and it appeared from the testimony that an error had probably been made in the location of the northwest corner of the 20-acre tract. But, notwithstanding the fact that such error had been made by the surveyor, it appears from the testimony that the fence referred to above was not located on the true boundary line; and the chancellor erred in dismissing the bill of complaint. Upon a rehearing of the matter the court may find it is necessary to have the surveyor run the line again, so that the true line may be properly determined. If it should appear that a part of the fence is located on the land owned
The suggestions of error are hereby overruled.