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R & S DEVELOPMENT, INC., AND RANDALL G. SAXTON v. LEWIS WILSON

NOVEMBER 09, 1988

R & S DEVELOPMENT, INC., AND RANDALL G. SAXTON
v.
LEWIS WILSON, LILLIAN GAINES WILSON, LUCY B. PECK, JUNE D. RATCLIFF AND ROBERT M. HEDERMAN, JR.



BEFORE HAWKINS, P.J., SULLIVAN & ZUCCARO, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

This case arises out of a dispute over title and damages to portions of a 20 foot alleyway in the Belhaven Heights Subdivision.

A hearing was held on September 27, 1985, on Plaintiffs' Motion for a Preliminary Injunction and the Hinds County Chancery Court issued an initial opinion on October 3, 1985, prohibiting the defendants from doing any further work in the alleyway.

 Following an amended complaint and completion of discovery, the plaintiffs settled with the defendants, A. E. Saxton and B & S Services for $3,000.00. On August 4, 1986, the Chancery Court determined that the City of Jackson had abandoned the alleyway and title had reverted to the adjoining property owners. This decree also awarded damages to the plaintiffs Hederman and Wilson in

 the amount of $12,700.00 and $2,755.50, respectively, less $1,500.00 from each plaintiff for the prior settlement payment.

 On September 22, 1986, a supplemental trial was held to determine the amount of punitive damages and litigation costs to be awarded. When this hearing was over the chancery court awarded the plaintiffs punitive damages against R & S Development, Inc., and Randall Saxton, jointly and severally, in the amount of $29,800.99. Of this amount, $19,800.99 went directly to the plaintiff Hederman as reimbursement of attorneys fees and litigation expenses which he had expended on behalf of all plaintiffs. Finally, the chancellor permanently enjoined the defendants Randall Saxton and R & S Development from attempting to use or interfere with the plaintiffs' portion of the alleyway.

 All of the named parties own lots in the Belhaven Heights Area, which are adjacent to the alleyway in question. The total number of lots involved is four. The alleyway is a 20 foot strip between the east line of the lots owned by Saxton, R & S Development, and the Wilsons, and the west line of the lots owned by Hederman, Peck and Ratcliff, those being Lots No. 11-14 in Block 60 of the Belhaven Heights Subdivision.

 Shortly after R & S Development purchased its lot, it began to construct a duplex for Randall Saxton, who is the President of R & S Development. Saxton planned to use the alleyway in question for ingress and egress to the duplex being constructed on lot No. 11. This alleged public alley was never used for any alleyway purposes, and has never been used by the City of Jackson for any purpose at all. Plaintiffs Peck and Ratcliff had a garage extending almost 10 feet onto their portion of the alley. The Wilsons kept their portion of the driveway in flowers, ornamental shrubs and trees. The Hederman portion of the alley had been maintained in azaleas and dogwoods.

 Against the advice given to them by a Jackson City Engineer, R & S Development employed B & S Services to bulldoze the alleyway, without the prior consent of the adjoining landowners or of the city. Immediately, Mrs. Wilson protested to A. E. Saxton, the owner of B & S Services, and demanded that B & S cease the bulldozing of her portion of the alleyway. An agent of Mr. Hederman protested on two occasions. Randall Saxton told Hederman's agent that he had obtained the necessary

 permission from the city.

 R & S Development, Inc., and Randall G. Saxton appeal to this Court and raise four issues.

 I.

 DID THE TRIAL COURT ERR IN FINDING THAT THE ALLEY HAD BEEN ABANDONED, AND THAT TITLE REVERSED TO THE ADJACENT PROPERTY OWNERS?

 The appellants take the position that mere non-use of the alley does not ripen into an extinguishment of a public right, and therefore, the court was in error in determining that the alley had been abandoned and title had reverted to the property owners. Furthermore, Saxton argues that the power to close a municipal street is vested exclusively in the municipal authority by virtue of Miss. Code Ann., 21-37-7 (1972).

 We dispose of the statutory argument. Section 21-37-7 is not the exclusive authority in this State for the closing of a municipal road. In City of Wiggins v. Breazeale, 422 So. 2d 270 (Miss. 1982), this Court recognized that Miss. Code Ann., 19-27-31 (1972), may be utilized in Chancery Court to vacate certain streets appearing on municipal plats, upon proper petition by a landowner. More recently, we reaffirmed our recognition of" what is in effect a common law abandonment . . . "McNeely v. Jacks, 526 So.2d 541, 544 (Miss. 1988); see also, Picayune Wood Products Co. v. Alexander Manufacturing Co. 227 Miss. 593, 86 So.2d 480 (1956).

 As to the common law abandonment theory challenged by Saxton, the clear trend of authority in Mississippi is that protracted non-use for an extended period of time is sufficient in law to create a presumption of abandonment. McNeely v. Jacks, 526 So. 2d 541, 544 (Miss. 1988); Robert E. Ratliff Co. v. Mississippi Etc., 400 So. 2d 1211, 1214 (Miss. 1981); Meadina v. State, ex rel Summer, 354 So.2d 779, 783 (Miss. 1978); Picayune Wood Products v. Alexander Manufacturing Co., 227 Miss. 593, 604, 86 So. 2d 480, 483 (1956). That presumption is strengthened when there is proof also of an intent to abandon. Picayune, 227 Miss. at 604, 86 So.2d at 484. We need not consider whether mere non-use in itself ripened into an abandonment in this case because there are other indicia of adverse use which compelled the finding of intentional abandonment by the City of Jackson.

 The proof established that no public use has been made of the alley in the 30 years preceding the trial, and that the City of Jackson has not exercised any act of dominion over the alley during that 30 year period. The city attorney stated that he was not going to take an active role in defending the city's right to the alley; and the city chose not to file a brief in response to the court's request for briefs from the parties. Any acts acquiesced in by the city which are inconsistent with a public right are circumstantial evidence of an intent to abandon.

 The City of Jackson did not object when landowners Peck and Ratcliff constructed a garage extending approximately 10 feet into the alley behind Lot 14, and this garage replaced a similar structure existing there since 1963, all without objection from the City of Jackson; Robie Knight, a City Engineer, advised Randall Saxton to secure the prior consent of the adjoining landowners before constructing a driveway in the alley; landowner Hederman testified that the alley in general had been planted in shrubbery and other plants since the late 1940's, and the portion of the alley between Lots 11 and 12 has been planted for at least 15 or 16 years; and landowner Peck stated that the alley in question has been planted with azaleas since at least 1963. The exhibits in the record corroborate the distinctly private nature of the subject alley.

 The complete, continuous and unexplained non-use of the alley by the general public for a period exceeding ten years gives rise to a presumption of abandonment, and the absence of dominion by the city, and the city's acquiescence in the placement of physical obstructions on the subservient alley, is inconsistent with any hypothesis other than that of an intent to abandon. The evidence combined to raise a very strong presumption of abandonment in favor of the landowners which was not overcome by Saxton. Title reverted to the adjoining landowners, who took, consistent with the recognized rule of conveyance, to the center line of the alley. See Moore v. Kuljis, 207 So.2d 604 (Miss. 1967). There is no merit to this assignment of error.

 It should be noted that Saxton also argues under Assignment I that Miss. Code Ann., 21-37-7 (1972), requires that due compensation be made to all adjoining landowners. However, this section applies only where the ...


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