PERRY v. WRIGHT

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Docket Number

No. 38686.

Judges

ETHRIDGE, J.

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PERRY v. WRIGHT.

Brunini, Everett, Grantham Quinn, for appellant.

I. The decree is against the overwhelming weight of uncontradicted evidence.

Taking all of the testimony together, the exhibits and plats, the facts all favor appellant's contention.

Briefly appellant says that the wall had two fixed termini both on the Charlie Wright property.

A wall constructed straight, as the uncontradicted evidence shows, between these termini on the Wright property is bound to have been constructed on the Wright property and is a part of that property in the absence of any agreement to the contrary.

II. The decree is against the physical facts.

If the garage was on Wright's property as Polk says and the east end of the wall was under the garage, as the physical facts demonstrate, then both ends of the wall are on Wright's property and a straight wall is bound to be constructed on the Wright land.

III. A wall constructed on Wright's property is presumed to be Wright's.

There is no party wall situation — no agreement — no evidence as to how or when it was constructed.

All we know is that it was built on Wright's property.

It has been anchored and braced from the Wright side.

Wright's garage has been built on top of the wall for many, many years — long enough to make it accepted as the line according to Mr. Polk.

Wright has possessed the wall by use. His front fence line shows that he claims beyond the wall.

"It has been held that one who is shown to be the owner of a building should be presumed to be the owner of the land on which it stands, and that one who is shown to be in the possession of land should be assumed also in possession of buildings and other constructions thereon." 22 C.J. 127, Sec. 66.

It is universal law that buildings and structures on land, where nothing is shown to the contrary, are presumed to belong to the fee simple owner of the land. 50 C.J. 786, Sec. 65. See also New Hebron School District v. Sutton, 151 Miss. 475.

IV. The court's only finding, that the wall now lies partly on Perry and consequently he should move it, avoids the basic issue.

The chancellor did not decide ownership of the wall, or where it was constructed.

One cannot take all of appellee's testimony as true and justify the decree, because that testimony is against the physical facts.

Dent, Ward Martin, for appellee.

The decision to be reached in this case depends entirely upon the testimony of Mr. Wright, the appellee, which is not impeached or contradicted, together with the testimony of his surveyor, Paul M. Polk. The case for the appellant rests entirely with the testimony of his surveyor, Bres Eustis, who testified that he surveyed the wall after its collapse in 1949, and in his opinion that prior to the collapse the wall was located on the property of the appellee. When he attempted to testify as to the manner in which he made his survey it became at once evident that his entire survey was based upon an arbitrary assumption that a certain iron pin which he found some small distance south of the curb on Arthur Street was the true northeast corner of the Perry property. He testified that he started with this pin. He then went south 63.2 feet and then turned at right angles and measured east to Cherry Street 144 feet, then reversed the transit and continued the east-west line to Drummond Street. This is all of the checking or verification of the correctness of the line that he made.

In fact, he testified positively that he did not check the accuracy of the iron pin which he assumed to be the starting point with any other point than the east-west line above mentioned. With this sketchy ground work he attempts to fix the dividing line between the plaintiff and the defendant in spite of the fact that Arthur Street as laid out on the ground and in use is actually 33 feet in width instead of 36 feet as it is supposed to be.

In comparison with the method by which Mr. Eustis attempted to locate this line, Mr. Polk ascertained at the very beginning that the change in the width of Arthur Street made this beginning point unreliable, and consequently he tested his line with all of the other property owners in the neighborhood and then brought his boundary line in reconciliation with the other lines which had been in use for many, many years. This is exactly what an experienced surveyor such as Mr. Polk would do, and it should be borne in mind that Mr. Polk's background included fifty years of continual day by day surveying in the City of Vicksburg and in Warren County. Small wonder it is that the chancellor based his opinion upon Mr. Polk's survey and not upon the survey of Mr. Eustis.

But laying aside the two methods of establishing the line that the surveyors used, and turning to the physical location of the garage itself, we do find the two surveyors in agreement in stating with pretty much accord that the north face of the garage was substantially the north line of the property of the defendant. If this be accepted the appellant is faced with the insurmountable obstacle that Mr. Polk testified that a physical survey of the property in 1947 showed the entire concrete wall north of the north face of this garage. He is also faced with the uncontradicted testimony of Mr. Wright that in 1943 the entire concrete wall was north of the north face of this garage.

There is no rule any better settled in our jurisprudence than that the decree of a chancellor will not be reversed unless it is manifestly wrong or against the overwhelming weight of the evidence. It would do little good to belabor the point, but the attention of the Court is directed to the case of Langston v. Farmer, 176 Miss. 820, 170 So. 233.

1. Boundaries — surveys — starting points.

In the surveys of a disputed boundary line between adjoining owners of city lots, when one surveyor started from an iron pin found on an adjacent street, but which he did not verify as a correct starting point, while the other surveyor did not accept for reasons given, the iron pin as a reliable starting point but checked his lines with that of other relevant lines of other property owners in the area, the trial court was warranted in accepting the latter survey as correct.

2. Nuisance — collapsing concrete wall.

Where the evidence showed that 88 feet of a concrete wall was on complainant's land, immediately adjacent to defendant's lot, and that it had in part collapsed and that the other part overhangs at a precarious angle, the complainant was properly ordered on defendant's cross-bill to remove as a nuisance, at his own expense, the said 88 feet of the wall or so much of it as is necessary to abate the nuisance.

Headnotes as approved by Ethridge, J.

ETHRIDGE, J.

This case involves a controversy over a boundary line, but singularly enough, each party is denying that he owns the strip of land in controversy.

Appellant Robert J. Perry filed a bill of complaint in the Chancery Court of Warren County against appellee Charlie R. Wright. It was alleged that Perry owned a lot in the City of Vicksburg immediately to the north of lots owned by Wright; that upon defendant's north line adjacent to complainant's property there was constructed more than 25 years ago a concrete wall 6 to 7 inches thick, and varying in height from 4 1/2 to 6 feet 9 inches; that in March, 1949, the wall bulged northward and collapsed upon Perry's property; that much of it still hangs at a precarious angle over Perry's property, serving as a continuing danger to persons and property; that the wall in this condition is a dangerous nuisance, a continuing trespass, and should be abated. Hence complainant prayed for an injunction prohibiting the continuance of the nuisance and trespass, and commanding the defendant to remove the wall from complainant's property. The answer of defendant Wright denied that the wall was upon Wright's property as to the eastern two-thirds of it, and averred that that part of the wall was the complainant's wall, located wholly upon complainant's land. The answer averred that the wall served to afford lateral support to defendant's land. By cross bill it was charged that the overhanging, half-collapsed wall was a nuisance, and prayed the court to direct Perry to immediately restore the wall and the earth in the original conditions existing before the wall collapsed. Cross-defendant traversed those averments.

After a hearing at which both complainant and defendant testified and each party introduced a surveyor to support their positions, the chancery court executed a decree which found that the portion of the concrete wall which had collapsed was entirely upon the lands of the complainant Perry and that its condition was a nuisance and created a danger to the occupants of complainant's property and to defendant's property. Complainant's bill was dismissed, and he was directed to remove at his expense the eastern 88 feet of the concrete wall, or so much of it as is necessary to abate the nuisance.

Appellant argues that this decree is against the overwhelming weight of the evidence and is against the physical facts as testified to and as evidenced by certain photographs in the record. We have considered carefully the evidence, and have, concluded that it was ample to support the decree below. Without lengthening this opinion by considering the evidence in detail, several factors particularly support the chancellor's conclusions. (Hn 1) He was warranted in finding, as he apparently did, that the survey of Polk, who testified for the defendant, correctly located the property line, and in not accepting the survey of Eustis, who testified for appellant. The Eustis survey was based upon a starting point of a certain iron pin which Eustis found south of the curb on Arthur Street, which he thought was the northeast corner of the Perry lot. From that pin he went south 63.2 feet and then measured the line dividing the parties' lands by turning at right angles. He did not verify the correctness of the location of the iron pin as being the true northeast corner of the Perry property. It was not checked against other established points in the Vicksburg survey. The trial court under such circumstances was justified in concluding that the starting point of the Eustis survey was not adequately established as correct. Burton v. Buttler, 107 Miss. 344, 65 So. 459 (1914); compare Boyd v. Durrett, 62 So.2d 319 (Miss. 1953). Nor did Eustis otherwise verify the boundary line. On the other hand, Polk's survey, which the trial court apparently accepted, did not rely upon this iron pin, because Polk testified that in view of the changes in the width of Arthur Street, the pin was not a reliable starting point. Hence Polk authenticated his lines with that of other property owners in the area.

Moreover, Polk testified that in making a survey of the property in 1947, considerably before this action was instituted in June, 1950, he ascertained that the concrete wall at its eastern extremity was north of the north face of the garage. The north side of the garage was conceded to be the north line of Wright's property. Wright also testified that in 1943 when he bought and moved upon his land, the concrete wall was north of the north face of the garage. This testimony was not contradicted. The chancellor could well have concluded from this testimony and from the photographs that the north side of the garage did not rest upon the concrete wall, but that it rested upon brick pillows which have since collapsed and in part upon the flanges protruding south of and from the concrete wall. (Hn 2) Without reviewing further the evidence, we think that these and other circumstances amply warranted the chancellor's finding in favor of the appellee.

Affirmed.

McGehee, C.J., and Lee, Kyle and Arrington, JJ., concur.

PERRY v. WRIGHT.

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