BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
The Chancery Court of the First Judicial District of Harrison County, Mississippi, heard and dismissed with prejudice appellants' claim for a mandatory injunction requiring appellees to remove improvements from the Duane property and for civil trespass.
Three errors are assigned:
(1) Did the trial court err in finding that an erroneously placed artificial monument took precedence over the official plat of record?
(2) Was it error to fail to find that there was a conflict between course and monument when in fact there was a conflict between monuments?
(3) Did the trial court err in failing to hold that where parties take property by reference to a recorded plat the recorded plat determines the dimensions of their lot?
On July 10, 1978, appellants, Duane and wife, purchased Lot 8, Block 12, Section B-1, Pass Christian Isles Subdivision, from Wallace C. Walker. Duanes' deed described the lot which they purchased as "Lot 8 of Block No. Twelve (12) of Pass Christian Isles, Section B-1, Harrison County, Mississippi, according to the official map or plat thereof *fn1 on file and of record in the office of the Chancery Clerk of Harrison County, Mississippi, in Plat Book 30 at page 18." On August 16, 1978, Robert and Joyce Saltaformaggio purchased the adjoining Lot 7. Their deed used the identical reference for Lot 7 that was contained in the Duane deed on Lot 8.
Both deeds contained a restrictive covenant that no building shall be erected, constructed, or maintained on
said property in Block 18-A and Block 12 . . . "within six feet of any interior side property line."
Prior to building on Saltaformaggio's lot, his contractor hired Lucius Marks to perform a survey on Lot 7. Marks went to the site where he located monuments fixing the front corners of Lot 7. He went 100 feet to the rear of the lot where he found iron rods of the size and type indicated on the plat. Checking toward Lot 12 along the 100-foot line, he found iron rods the correct width apart down through Lot 12. Checking toward Lot 1, he found that Lot 6 was in conformity. He did not find a mark between Lots 4 and 5, but he found one between Lots 3 and 4, which was the correct distance away to form two lots according to the plat. The lot lines created by these monuments formed approximately a 93 degree angle from Elm Lane. *fn2 He became concerned because he assumed from the plat that the lot lines were at 90 degree angles.
Returning to Lot 7, he turned a 90 degree angle and looked again for markers. This time he located one six feet away from that which he previously found between Lots 3 and 4. This rod formed a 90 degree angle from Elm Lane. He also found one between Lots 4 and 5, which appeared to him to have been disturbed by the placement of an underground drainage structure. Taken together, the two newly discovered marks would create widths of 58 feet each instead of the platted 55 feet for Lots 4 and 5. Marks also found a 2-1/2 inch pipe at the rear of Lot 1 along Audubon Lane, which formed a 90 degree angle to Elm Lane.
Faced with these conflicting findings, Marks concluded that the iron rods 100 feet back on Saltaformaggio's lot accurately reflected the lot lines indicated on the plat. His original survey, although incorrectly drafted at a 90 degree angle, shows the Saltaformaggio lot lines to be established by the iron rods at a 93 degree angle. It was under this survey that Saltaformaggio's house was built to fit the stakes Marks had established.
In the fall of 1979 a Mr. Marquez, who had purchased Lot 9 in the same block, hired Eugene Richardson to survey his lot prior to constructing his home on Lot 9. Richardson noticed a discrepancy in the lot lines of Lot 9, 8 and 7, and called it to the attention of both Mr. Duane and Mr. Saltaformaggio. Saltaformaggio then hired Mike Cassady to survey his lot again to determine if Richardson's findings were correct. The Cassady survey used 90 degree angle lot lines and showed an encroachment of the piling and steps of the Saltaformaggio house onto Lot 8
owned by the Duanes. The survey further showed that the Saltaformaggios' bulkhead encroaches onto the Duanes' lot approximately nine feet. Further the survey shows that a considerable portion of the house of Saltaformaggio is encroaching on the minimum six-foot side lot restricted by the deeds to both lots.
Cassady testified at the trial for the Duanes. His methodology consisted of first locating as many of the primary subdivision corners as he could find that were indicated in the original subdivision plat for Block 12. He found one at the corner where Audubon and Elm Lane intersect on Lot 1 and verified it for angle and distance. He located a second corner 150 feet down Audubon Lane from the intersection, which also checked for angle and distance. Cassady then measured down Elm Lane to a third primary point between Lots 12 and 13, and checked this for angle and distance. These three monuments combined to form a 90 degree angle. He then located 80 to 90 percent of the front corners along Elm Street and they all measured within a few tenths of a foot for distance.
Once Cassady verified the accuracy of the location of the primary monuments and, with the measurements of the plat showing that the lot lines extend back from the street at a 90 degree angle, he proceeded to locate the auxiliary monuments set 100 feet back. He found some iron rods about 100 feet back which fixed the side lot lines of Lots 1, 2 and 3. These rods formed perpendicular lines with the ...