Louis Cohn & Bros. v. Peyton

Etegeudge, J., delivered the opinion of the court. The appellants, a partnership composed of Louis Cohn, Emil Cohn, and Diavid Cohn, brought suit ip the chancery court of Lawrence county for a strip of land lying between an old fence row built upon a line run in 1872 by the then owners of certain lands, to establish the lines between them. It. was alleged that this fence was built as a line fence in 3872 by the then owners of the land, and kept and maintained on this line for the period of more than ten years, and that up to the date of the suit said strip had been in the possession of the complainants and their grantors, under a claim and belief of title and *264 ownership thereof by complainant and his vendors, and the bill prayed for a decree confirming the title to said strip of land in them. It appears that about 1918, Cohn Bros., being’ then the recent purchasers of the property, some question arising about the building of a fence on this old fence row, hired a'surveyor to run the line and locate it; but this surveyor, after running the line some distance below said old fence row, stopped his survey, and the fence was constructed near the old fence row. Subsequently appellee desired the line located, and secured the same surveyor, who started to run the line, to again run the line for him, and said surveyor located the line below the old fence row formerly occupied and claimed by Cohn Bros. Cohn Bros., thereupon got a survey- or named Philip Blue to run the line, and he ran it some twelve feet further on Cohn Bros.’ property than the Bussell line did, and still further from the old fence row. After Blue ran this line at the request of Cohn Bros., he retraced the old survey made in 1872, locating the old fence row, and locating the surveyor’s marks then made, and testified that the mistake was made in 1872 by not giving to parts of sections involved the full amounts that should have been credited to them, they being oversized sections, and that the line he ran was the true line when he gave to such subdivision of a section its part of the overplus; and he also testified that this true line was below the old fence row about a distance of two chains, and a map thereof was introduced in evidence and put in the record, showing the strip in controversy. The defendant claimed the land within this strip, and filed a cross-bill seeking to establish his title and also to recover for some timber cut within the limits of this strip. A number of witnesses testified to the running of the line in 1872, and that the fence was built on said line, and recognized by the owners as being the line *265 between tliem for a long time, much more than the statutory period of time. The defendant in the court below himself testified that there had been an old fence on this old fence row as far back as he could recollect; that he had been reared in the community, and was, at the time of the trial, fifty-one years old; and that there had always been some kind of fence on the old fence row. There is some little confussion in the record about another fence row near the line run by Blue, on part of the land; but the defendant testified that the old fence row ran from the Columbia and Monticello public road to the river, and that there had always been some kind of fence there. The chancellor found the line run by the surveyor, Blue, to be the true line, and decreed for defendant and cross-complainant, reciting in his decree as follows: “The line, as laid out and surveyed by Philip Blue, between the lands of the cross-complainant, Percy Pey-ton, and the cross-defendants, Cohn Bros, [describing the land], be and the same is hereby established as the true and correct line; and it is further ordered, adjudged, and decreed that the title to the strip of land lying north of the line as laid out by Philip Blue, and the fence now located, be and the same is hereby quieted and confirmed in Percy Peyton.” There is no testimony that the Blue line had any fence row upon it. There was, on one end of the line, an old fence on it, some twelve or fifteen feet away from this line. We think the facts in the record are insufficient to show that this old fence, extending* part of the way on the land near the Blue line, was the line fence built in 1872; but the overwhelming proof is that the old fence near where the fence is now, and which was retraced by Blue two chains north of the Blue line, is the fence row representing the old fence built in 1872 as the line fence. It appears that this old fence, therefore, was on the line run by the original surveyor in 1872, and that the parties have claimed title with reference thereto more *266 than the statutory period after the establishment of said fence, and the chancellor’s decree should have been that this old fence constituted the present line between the land of the respective parties. It, of course, is not the true land line, but adverse possession gives title in such case to possession under a claim of right and belief that the land contitutes the line, although in fact it did not. Metcalfe v. McCutcheon, 60 Miss. 145; Evans v. Harrison, 130 Miss. 157, 93 So. 737; Greer v. Pickett, 127 Miss. 739, 90 So. 449. The judgment will therefore be reversed, and the cause remanded, with directions that there be a decree for appellants, establishing the line along the old fence row. Reversed and remanded.