DATE OF JUDGMENT: 11/03/92 TRIAL JUDGE: HON. TIMOTHY E. ERVIN COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT
Before: Sullivan, P.j., Pittman And Banks, JJ.
The opinion of the court was delivered by: Pittman, Justice
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION REVERSED AND RENDERED - 2/20/97
MOTION FOR REHEARING FILED: 3/4/97
¶1. The proceedings and Disposition relating to the issues in the case at bar actually began in another proceeding, not currently on appeal, between these same and other parties, also concerning the disputed land, filed in the Monroe County Chancery Court and heard by Judge Timothy Ervin. Sandra R. Conwill filed a complaint against Nettleton Church of Christ, the Town of Nettleton and Earnest Sullivan (collectively "Town of Nettleton") to remove cloud from title and to confirm title to real property and for an injunction against all defendants. By way of final decree entered on March 1, 1991, Conwill's complaint was dismissed on a motion for directed verdict made by the Town of Nettleton for her failure to prove her claim.
¶2. Subsequently, on August 13, 1991, Conwill filed a second complaint, against the Town of Nettleton seeking a declaratory judgment and other relief. In her second complaint, Conwill alleged that she was owner in fee simple of the disputed property pursuant to her having obtained a default judgment from the heirs and devisees of the last record owners of the property in dispute and having obtained quitclaim deeds from certain other property owners. In the alternative, Conwill alleges that she is the owner in fee simple of the disputed land. In a final decree dated November 3, 1992, the trial court, stating that it had considered the pleadings of the parties, the stipulation, and all memorandum trial briefs, ruled against the Town of Nettleton based upon Conwill's theory of ownership, thereby vesting fee simple title in the disputed land to Conwill. On November 30, 1992, the Town of Nettleton filed its notice of appeal with this Court.
¶3. This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous. McAdory v. McAdory, 608 So. 2d 695, 699 (Miss. 1992). The Town of Nettleton contends that according to prevailing case, law, the Town of Nettleton had the ability to sell to the Nettleton Church of Christ the property in dispute, as the property had been dedicated to the town via a grant in fee simple under the theories of common law dedication and statutory dedication. Under a theory of common law dedication, there are no sufficient facts which could show an intent on the part of the Town of Nettleton to abandon said property, and under a theory of statutory dedication, there is no possibility of abandonment of the dedication. The Town of Nettleton maintains that the land in dispute was dedicated to the Town of Nettleton and that said dedication was accepted and never abandoned.
I. Was there a proper dedication of private lands for public use?
¶4. Dedication is the setting aside of land for public use. It "has been defined as an appropriation of realty by the owner to the use of the public and the adoption thereof by the public having respect to the possession of the land and not of the permanent estate." 23 Am. Jur. 2d, Dedication § 1. There are two types of dedication: common law and statutory. Two distinctions separate the different types of dedication. First, the common law dedication operates by way of an equitable estoppel, whereas a statutory dedication operates by way of grant. Second, a common law dedication usually creates a mere easement, whereas in a statutory dedication the fee of the property is in the public. 23 Am. Jur. 2d, Dedication § 3.
¶5. It is well-settled law in Mississippi that land sold according to a plat or map will dedicate the streets, alleys, squares, and other public ways marked on the map or plat to the public for public use. See, e.g., Luter v. Crawford, 230 Miss. 81, 92 So. 2d 348 (1957); Skrmetta v. Moore, 227 Miss. 119, 86 So. 2d 46 (1956); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927); Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958 (1904); City of Vicksburg v. Marshall, 59 Miss. 563 ...