Shoemaker v. Coleman

47 So. 649 | Miss. | 1909

Whiteield, C. J.,

delivered the opinion of the court;

This bill was filed by appellee against the appellant, setting out that appellant had placed certain obstructions in A street and Seventeenth avenue, in the city of Meridian—he owned a lot fronting on Seventeenth avenue on the east and for one hundred feet on A street on the south—causing him great damage peculiar to himself, in that ingress to and egress from his property was greatly interfered with, and in that the value of his said property was greatly depreciated by reason of said obstructions. The prayer was that the court, upon final hearing, should enter a decree compelling the appellant to remove said obstructions from said street and avenue. The bill alleged that the appellee was the owner in fee of his property so abutting on said avenue and street.

The appellant urges that it was the duty of the "complainant,. in this sort of proceeding, to deraign his title and show a perfect title in fee simple. This is a misconception. This is not 'a bill to remove clouds from title. Appellee was required to do no more than show that he had such interest in the land as an abutting owner as entitled him to ingress to and egress from his property. We have heretofore held in Coleman v. Holden, 88 Miss. 798, 41 South. 374, that even the lessee for a» short term could maintain such a suit as this. The appellee shows several deeds by which the property was conveyed to him, and there is no dispute as to the right to the possession of the property, upon which he says he proposes to erect a warehouse.

The appellant next contends that the complainant was not an abutting owner on this street and avenue in such legal sense as to entitle him to this relief. .This is entirely too narrow a view. He bases this contention upon the proposition that the obstruction of the. street, by the plant in part and in part by piles of lumber, was at a point not opposite exactly to the oh.e hundred feet of the lot of appellee fronting and abutting on this street; but the right of ingress to and egress from his lot, both on A street and Seventeenth avenue, was directly obstructed and interfered with seriously by the said obstruction in A street'.- It may be not quite as directly, but in principle and for all practical purposes as effectually, as could be required for the maintenance of this bill. There is nothing in the case-of Poythress v. Mobile & O. R. Co., 92 Miss. 638, 46 South. 139, properly understood, at all in conflict with this view.

It is next insisted very earnestly by the appellant that there is no sufficient proof of the dedication of this avenue and street in this record, whatever may have been the effect of the proof in Colenum v. Holden, 88 Miss. 798, 41 South. 374. We have most critically and carefully examined the testimony in this record touching the dedication; but we are unable to agree in this contention-of appellant, and it would serve no useful purpose to set out at large the testimony on this subject. It is-enough to say that a careful examination of that testimony in this particular record satisfies us thoroughly that there was a dedication of this street and avenue as a street and avenue of the city of Meridian. Counsel for appellant fail to give full effect to the testimony for appellee on this point, and, indeed, to the testimony of the city engineer introduced by himself. It is true that the map referred to by T. W. T. Hamilton was not introduced, but Hamilton testified to the contents of that map; but other maps, based on that and on Ragsdale’s survey, are introduced as evidence, and much oral testimony besides, the effect of all of which evidence, taken together, clearly shows that-the city accepted this dedication, and recognized this avenue and this street as an avenue and street of the city of Meridian.

A very large part of the argument of learned counsel for appellant is devoted to an attempt to show that, because this street and avenue were not opened in their full -length, at the time of the erection of the plant of the appellant, by the city authorities, the appellant had a right to establish his plant in what is A street and Seventeenth avenue in part. The principles which control perfectly this branch of the case are set out fully in the case of Coleman v. Holden, 88 Miss. 798, 41 South. 374. This street and this avenue are wholly within the corporate limits of the city of Meridian. They had been, as we have shown, dedicated to the city, and the city had accepted the avenue and the street. These blocks and lots had been numbered and laid out with reference to this street and this avenue, and they had been dealt with by the city in various ways from time to time as an avenue and a street of the city of Meridian. The deeds under which the defendant himself claims refer to Ragsdale’s survey, and the whole testimony contained in this particular record shows too clearly for disputation that this avenue and this street must be regarded as an avenue and a street of the city of Meridian; it being immaterial that the city did not open up the avenue and the street in their full length until the advancing interest of the city required them to be so opened up. We have given very special attention to the weight and the effect of the testimony on this point, because of the very able argument made by the learned counsel, both at the bar and in his brief; but wTe are persuaded that a calm review of the evidence in the record will convince the learned counsel for the appellant himself that he failed to attribute to this evidence the full effect to which it is justly entitled on this point.

The learned counsel for appellant then contend that if A street and Seventeenth' avenue were a street and avenue of the city of Meridian, and were obstructed, as the testimony shows they were, by appellant, such obstructions constituted' a public nuisance, and that an action could not be maintained by appellee, a private citizen, to remove these obstructions, since he would have to show some damage peculiar to himself, not suffered in common by his fellow-citizen. This is a perfectly sound principle of law. But the evidence shows clearly such peculiar damage to this appellee, both in respect to ingress and egress and in respect to special depreciation to his property by virtue of these obstructions. So that, without any reference to the ease of Coleman v. Holden, 88 Miss. 798, 41 South. 374, the evidence in this record establishes the proposition that we have above indicated.

Finally it is insisted earnestly that as to Seventeenth avenue at least this suit must fail, because it is said that avenue is open down to A street, past the appellant’s property, where it fronts on Seventeenth avenue; ¿rat that avenue is obstructed just below, and that obstruction interferes with travel up Seventeenth avenue, north, by appellee’s property. A map is introduced in evidence to show that a street called “New B street” has beeii opened from Seventeenth avenue, running in a southeasterly direction, and that parties desiring to pass north or south by appellee’s property fronting on Seventeenth avenue can go along Old B street to where New B street intersects that street, and by pursuing this circuitous and very inconvenient route, and for a very much greater distance than would be traveled in going directly up Seventeenth avenue as originally laid out, could reach appellee’s property where it fronts on Seventeenth avenue. It is shown that the city street committee built a bridge and opened up this New B street; but this is the whole extent of the testimony offered to show that this New B street was opened up by virtue of the authority of the city of Meridian. The city engineer himself testifies, when asked on this point, that he did not know by what authority this New B street was opened up. There is, hence, a failure to satisfactorily show that this New B street ever was laid out by the authority of the city. It seems, from the engineer’s testimony, to have been recently done.

It would have been an exceedingly easy matter for the appellant or his predecessors, when this plant was constructed to have investigated .the question whether A street and Seventeenth avenue constituted a legal street and avenue of this city. Even if the slighest investigation had been made, it would have been discovered at once that they were. The appellant has nobody to blame but himself for building in this street and avenue, and it is asking too much of the court to hold, on the extremely meagre showing on his behalf in this record, that he should be permitted to thus obstruct this street and this avenue of the city of Meridian. If there shall be some expense attendant upon withdrawing his building out of the street onto his own ground, it is simply one of a thousand like instances where care beforehand, which should have .been exercised—even the most ordinary care exercised in advance—would have made this expense wholly unnecessary.

The most careful scrutiny of the record leaves us unable to say that the chancellor has erred in any respect, and the decree is accordingly affirmed.