DISSENTING OPINION. I concur in the controlling opinion in holding that the appellees did not have the right under the "stairway clause" in the appellant's deed to Edmondson, and in the latter's deed to them, to construct their building so that one wall thereof encroached on the two-foot strip of land in controversy. But I am of the opinion that there was testimony which the chancellor had the right to believe, *Page 304 to the effect that the owner of the two-foot strip of land visited the premises while the wall of the appellees' building was in the course of construction, and then made no objection to the location of the wall until after it was completed, at great cost to the appellees.
The chancellor, on hearing the testimony, and doubtless being familiar with the premises in question, since he resides in the city of Hattiesburg where the property is situated, was entitled to take into consideration the location of the new wall with reference to the wall of the bus station, and to find as a fact that if the owner of the two-foot strip of land in controversy did, in fact, visit the premises from time to time after the new wall had reached a height of four or five feet, and until this three-story building had been completed, he would necessarily have noticed that the wall was being constructed so as to encroach to that extent on his land, and would not now be entitled to an injunction requiring the appellees to remove the wall at great expense to themselves, estimated to be approximately $3,000, far in excess of the value of the two-foot strip of land, without regard to what other relief he may be entitled to under the circumstances.
Whether or not the witness, Coston, an electrician, referred to in the controlling opinion, was telling the truth in testifying as he did, which statements were denied by the appellant, was an issue of fact for decision by the trial judge, and I am unable to say that he was manifestly wrong in adopting the testimony of such witness as true, since it is not unreasonable on its face, and so far as the record discloses, he had no interest in the litigation.
If the testimony of Coston was true it would seem to follow that the owner of the two-foot strip of land was put on notice that the appellees were evidently causing the wall to be built thereon under claim of right then being asserted under their deed. The appellant, having made no objection thereto while this great expense was being incurred, should be held to be estopped from obtaining *Page 305 injunctive relief, whereby the appellees are to be compelled to remove this wall and reconstruct the same at a distance of two feet away, necessitating the remodeling of one side of their entire building.