Moore v. Neill

78 So. 774 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

Mrs. Olga B. Moore filed a suit of ejectment in the circuit court of Leflore county against the appellees to recover a strip of land containing eleven and twenty hundredths acres, described as “beginning at the quarter section corner in the center section 6, township 20, range 2, and run thence east ninety-three feet; thence south three hundred and twenty-one feet, to where there was a wire fence on the 14th day of May, 1914, on the south side of a public road known as the Whaley public road; thence south one degree and forty-five minutes east, five hundred feet; thence south no degree 45 •minutes west, five hundred feet; thence south no degree 45 minutes east, five hundred feet; thence south no degree 45 minutes west, one thousand feet; thence south, one thousand two hundred and. sixty-two feet, to the corner where some woods were on the 14th day of May, 1914; thence continue south one thousand two hundred feet, to quarter section line; thence west ninety-three feet, to quarter section line; corner in section 7, township 20, range 2; thence north five thousand two hundred and eighty feet, on the north and south quarter section line to close, containing eleven and two tenths acres” — and for rent on said land from the 1st day of January, 1912. The suit is predicated upon adverse possession of said strip by the plaintiff for a long period of time, amounting to more than ten years.

It appears that in the year 1876 one P. Money, as trustee under the will of T. Money, had a map made of certain lands known as “Money’s Deadening” embracing parts of sections 6 and 7, township 20, range 2, in which the deadening was surveyed and divided into five lots, containing one hundred, fourteen acres each, and one of these lots became the property of the plaintiff’s ancestor, and an adjoining lot, being lot No. 4, became the property of one of the chain of grantors in the appellees’ title. It appears in evidence that, after this map was made, a fence was built upon the line between lot 4 and 5, and from the plaintiff’s evidence this fence, remained upon said line from 1876 to 1912, at which time the appellees, who had in 1910 acquired an adjoining tract, moved the fence, so as to place it upon the center line of section 6, which was some ninety-three feet west of the fence line, and what appears under the plaintiff’s testimony to have been the dividing line under the survey of “Money’s Deadening.” Some years after the survey of the “Money’s Deadening” a partition was had in the chancery court between the different heirs of T. Money, and the respective parties went into separate possessions; the one who constitutes one of the grantors in Neill’s chain of title occupying upon the east side of the fence up to the fence, and Mrs. Moore and her ancestors occupying on the west side up to the fence. All of the land on the west side of the fence was not in actual cultivation, but the fence remained on said line until 1911, when Neill went into possession of his tract of land. The fence not being exactly straight, Neill desired' to place the fence straight and upon the line between him and Mrs. Moore, and caused a surveyor to make a survey, when it was discovered that the quarter section line dividing section 6 was some distance to the west of the fence. Neill thereupon went to the husband of Mrs. Moore and desired him to join in a survey, so as to determine the true line, which Moore refused to do. Thereupon Neill moved the fence to the quarter section line dividing section 6— that is, dividing the southwest quarter of section 6 from the southeast quarter — and proceeded to cultivate the strip between the quarter section line and the fence row as it formerly existed. Whereupon the plaintiff brought this suit.

There is no dispute' of the fact that the lands were used by the respective parties up to the fence row as it formerly stood but the appellees contend that there was no sufficient proof of claim of adverse ownership on the part of Mrs. Moore and her chain of title, that the taxes had been assessed to Mrs. Moore to the quarter section line, and that the strip in controversy had been assessed to and paid on by Neill and his grantor during the entire period of time. There was considerable evidence taken by the plaintiff in the suit, which we think established without controversy the fact of possession and claim and recognition of ownership in Mrs. Moore as to her side of the fence, and as to Neill’s grantors on their side of the fence for more than ten years; that is to say, from 1910 back to and including at least as far back as the year 1888. It appears in evidence that, after Neill took possession of this tract of land, Mrs. Moore was compelled to abate the rent of her land on account of the loss of the strip to the extent of fifty dollars per annum and that this was a reasonable rental of the strip in controversy from the 1st of January, 1912, to date. We think there should have been a peremptory instruction, on the proof in this record, for the plaintiff, for the possession of the strip of land, and for rent to the amount of fifty dollars per annum. There being no proof to show that the land rent was worth less than fifty dollars per annum, the judgment will be reversed, and judgment entered here for the plaintiff for the strip in question, and fifty dollars per annum for the years 1912, 1913, 1914, 1915, 1916, and 1917.

Reversed, and judgment here.