BEFORE PATTERSON, C.J., HAWKINS AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
There is no question but that the City of Gulfport holds a dedicated right-of-way for utility and street purposes between the Central Gulfport Addition and Villa Del Rey Subdivision to that city. The problem is that the City has now laid sewage line within what it contends is its right-of-way, only to have the owners of Central Gulfport's northernmost contend that the line is 60 feet too far south. All of this has led to this litigation the central issue of which is where on the ground, not in theory, the City's right-of-way lies.
The Villa Del Rey Subdivision and Central Gulfport
Addition adjoin each other. In theory the south line of Villa Del Rey and the north line of the Central Gulfport Addition each lie along the half section line of Section 32, Township 7 South, Range 11 West of Harrison County, Mississippi, for the plats of record so provide. Indeed, the parties stipulated that Central Gulfport Addition has as its northern boundary the half section line of Section 32.
In 1967, Coastal States Limited, a Mississippi corporation, acquired some 52 unimproved lots along this northern line of Central Gulfport Addition. In 1976 the City of Gulfport, without so much as a "by your leave" , "kiss my foot" or other form of notice, laid sewer line some 60 feet south of the north line of those lots. Coastal argues that the City put its line outside the City's right-of-way.
Because its lots have been substantially reduced in value, Coastal has sued on the theory that the City's conduct amounts to a taking for which Coastal is entitled to just compensation. Miss. Const. Art. 3 17 (1890). The City of Gulfport's response is that it has laid the sewer line in the correct right-of-way and, accordingly, that it has taken nothing from Coastal that did not already belong to the City. The Circuit Court of Harrison County, First Judicial District, in accordance with a jury verdict, resolved all issues favorably to the City. This appeal has followed.
The Villa Del Rey Subdivision - immediately to the north of the property in issue - has in part been developed. Reference to the half-section line of Section 32 as the southern line of the subdivision appears to have been long neglected. Over the years Villa Del Rey's owners have come to regard as the southern line of the subdivision a fence just north of an east-west ditch. The problem is that this ditch lies some 75 plus feet north of the right-of-way as the City claims it. Efforts to locate the correct half section line were described by several expert witnesses at trial. Suffice it to say that the original monuments appear to have been destroyed so that location of the half section line is open to some doubt.
It is in this context that Coastal urges that the true legal boundary line separating its 52 lots on the northern edge of Central Gulfport Addition from the southern line of Villa Del Rey Subdivision has been established by acquiescence to the point where the location (theoretical or actual) of the half section line is no longer of consequence.
Without doubt, the true boundary between adjoining properties may be established by acquiescence for a period in excess of ten consecutive years. York v. Haire, 236 Miss. 711, 112 So.2d 245 (1959); Butler v. Mayor of the City of Vicksburg, 17 So. 605 (Miss. 1895); see 6 Thompson, Commentaries On The Modern Law of Real Property 3036 (1962); Skelton, Boundaries And Adjacent Properties 323 (1930). It may well be that these adjoining property owners have a true boundary established by acquiescence, irrespective of the correct location of the half section line. This acquiescence has no binding effect on the City of Gulfport for the rather obvious reason that it has not acquiesced - there is no evidence before us that the City had any knowledge of the putative "acquiesced" boundary. Nothing in Butler v. Mayor of the City of Vicksburg is to the contrary. In that brief opinion, the City of Vicksburg was agreeing that the boundary line was in a location fixed by the acquiescence of the adjoining property owners. The party there estopped had acquiesced. Here, to the contrary, the City has not agreed or, if you will, has not acquiesced.
Coastal's assignment of error concerns the trial judge's refusal of a jury instruction which would have explained the rule of acquiescence. The instruction would have authorized the jury, if it found the line between the two adjoining properties to have been established by acquiescence, to consider such as binding upon the City of Gulfport, notwithstanding that nothing in the instruction required a finding that the City of Gulfport had in fact acquiesced in the boundary. The instruction would further have authorized the jury to find for Coastal, notwithstanding that the sewer line may have been laid within the right-of-way when that right-of-way is identified by reference to the correct location of the half section line of Section 32. The parties' quibblings over the form of the instruction are of no consequence. The trial judge committed no error when he refused the instruction because, no matter how firm a boundary the parties may have established by acquiescence between themselves, such acquiescence does not on these facts operate to estop the City.
The City's position ultimately is that its surveyor correctly identified the half section line and, measuring the right-of-way from that point, it laid its sewage line therein. In view of what we have said above, Coastal is reduced to arguing that the City has incorrectly identified the half section line. Here we confront the familiar battle of the experts. Coastal relies upon the expert opinion testimony of M. E. Thompson, Jr., a civil engineer and registered surveyor, who presented expert testimony consistent with Coastal's
theory. The City relies upon the opinion of Floyd Hovas, also a competent and experienced surveyor. Hovas located the section line which the City in fact used in ...