Bay Springs Forest Products, Inc. v. Wade, 53790

• Decision Date: 03 August 1983
• Docket Number: No. 53790,53790
• Citation: 435 So.2d 690
• Parties: 36 UCC Rep.Serv. 1613 BAY SPRINGS FOREST PRODUCTS, INC. v. Mildred WADE, Davis Wade, Nell D. Wade, Jerry Minter Wade and Ann Pierce.
• Court: Mississippi Supreme Court

Page 690

435 So.2d 690

36 UCC Rep.Serv. 1613

BAY SPRINGS FOREST PRODUCTS, INC. v. Mildred WADE, Davis Wade, Nell D. Wade, Jerry Minter Wade and Ann Pierce.

No. 53790.

Supreme Court of Mississippi.

Aug. 3, 1983.

James B. Everett, Decatur, for appellant.

Thomas R. Jones, Bourdeaux & Jones, Meridian, for appellees.

Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court.

I.

This civil action arises out of the purported sale of wrongfully converted timber to Bay Springs Forest Products, Inc. ("Bay Springs"). The timber was cut from land in Newton County, Mississippi, owned by members of the Wade family, without their knowledge or consent. The Wades brought suit for the value of the converted timber purchased by Bay Springs.

A jury of the Circuit Court of Newton County found for the Wades and awarded damages in the amount of $100,740. Final judgment has been entered thereon. Feeling aggrieved, Bay Springs has appealed. For the reasons set forth below, we affirm.

II.

At all times relevant hereto Mildred Wade, Davis Wade, Nell D. Wade, Jerry Minter Wade, and Ann Wade Pierce (hereinafter "the Wades") were holders of record title to the west half of Section 5, Township 7 North, Range 11 East in Newton County, Mississippi. The east half of Section 5 was owned by Robert A. Grissom.

In 1979 Grissom engaged Jake Smith, Harvey Cleveland, and Bobby Gregory to cut timber from a 79 acre portion of the west half of Section 5, the part of the section owned by the Wades. Grissom claimed title by adverse possession.

During 1979 and 1980, Cleveland, Smith and Gregory cut the timber and hauled it to Bay Springs' woodyard in Hickory, Mississippi. Gregory alone hauled 497,715 board feet to Bay Springs' yard. Bay Springs purchased the timber from Gregory and paid $210 per thousand board feet delivered at the yard. A portion of the purchase price, called stumpage, went to Grissom as the alleged owner of the timber. The balance went to Gregory for cutting and hauling.

III.

This case was originally called for trial on August 21, 1981. After hearing some evidence a mistrial was declared, where upon the Wades amended their declaration to include certain allegations with reference to Bobby Gregory's trespassing on their land.

At this stage in the proceedings, the following order was entered by the Circuit Judge:

ORDER

The Court having considered motions in the above styled and captioned cause, and having heard argument of counsel, is of the opinion a mistrial should be declared in this cause, and the case is pre-emptorily set for trial on Wednesday, September 2, 1981, a regular day on this August, 1981, term of Court.

That the Plaintiff is given leave to amend his Declaration and for same to be done by 12:00 o'clock Noon, Tuesday, August 25, 1981, and with the Defendant given the right to file a response thereto by 12:00 o'clock Noon, Friday, August 28, 1981.

Following the Wades' filing of their amended declaration, Bay Springs sought a continuance, purportedly needing time to prepare a defense based upon the new allegations concerning Gregory's activities. The trial judge found that Mr. Gregory's activities had long been known to all. He overruled the motion for a continuance, stating

If there is a surprise, it appears to me that it is a result of neglect on the part of counsel. Therefore, this case will continue,....

There is no apparent reason why the case could not have been tried on August 21, 1981. Even assuming that a mistrial was proper, we discern no reason why the new trial should not have commenced immediately on August 21. The trial judge in fact continued the case until September 2, 1981. He thus gave Bay Springs twelve days more time to prepare for trial than it was really entitled to.

Bay Springs makes much of the point on this appeal. It charges that the trial court committed reversible error by overruling the motion for a continuance. Curiously, more pages of Bay Springs' briefs are devoted to this issue than to any other.

This Court has repeatedly held that the grant or denial of a continuance rests within the sound discretion of the trial judge. Rogers v. Rogers, 290 So.2d 631, 634-635 (Miss.1974). We will not reverse in such cases unless convinced that the trial judge has abused his discretion and unless we are satisfied that injustice has resulted therefrom. Croft v. Bituminous Casualty Corp., 235 Miss. 95, 108 So.2d 700 (1959); Roberson v. Quave, Sheriff, 211 Miss. 398, 51 So.2d 62 (1951).

If anything, the trial judge here abused his discretion in favor of Bay Springs. He gave Bay Springs twelve extra days to prepare for trial. The trial judge correctly denied Bay Springs' motion for a further continuance.

IV.

Bay Springs attacks the Wades' claim that they owned the timber. This attack takes two forms. First, Bay Springs challenges the admissibility of the testimony of the Wades' surveyor, Maury Gunter. Admittedly, Gunter's testimony was critical in establishing that the lands from which the timber was cut were indeed within the Wades' half of Section 5. Second, Bay Springs claims that Grissom had acquired the 79 acres in question by adverse possession and that this Court should now so hold, notwithstanding the verdict of the jury to the contrary.

A. The Surveyor's Testimony

At trial the Wades called as a witness Maury Gunter, the County Engineer for Newton County. The qualifications of Mr. Gunter were admitted by counsel for Bay Springs. Gunter testified that he did private survey work and that he had been employed by the Wades to survey Section 5, Township 7 North, Range 11 East in Newton County. Gunter presented a detailed plat depicting the line separating the west half of Section 5 from the east half. The plat also depicted the 79 acres from which the timber in question had been cut and removed.

Bay Springs assigns as error the trial court's receipt of this testimony and plat as evidence. Bay Springs argues that Gunter started at a pine knot which a neighbor showed him to be a corner for another survey. Gunter did not use a governmental survey corner as his point of beginning.

Gunter testified that his survey showed an established corner identified by a pine knot which, in his professional judgment, accurately located the true section corner. In addition, Gunter knew, located and used on his plat the northeast corner of Section 5 as it had been an established corner identified by a pine stake and an iron pin.

Craft v. Thompson, 405 So.2d 128 (Miss.1981) recognizes the well settled proposition that the

testimony by a surveyor, and his plat of the property surveyed, is admissible so long as the qualifications of the surveyor are established, as well as the quality of the instruments used by him. Factual questions relating to the making of the survey are for the resolution of the chancellor [or jury]. 405 So.2d at 130.

Here there was no attack on the instruments used by Gunter.

The only authority cited by Bay Springs in support of its view that Gunter's testimony should have been excluded is Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413 (1953). We read Kelley as establishing the correctness of the trial judge's decision to admit the testimony and plat of Mr. Gunter. The opinion in Kelley explains that the surveyor

did not claim to have started his survey at a recognized corner established by the original government survey, but he did testify that he had previously surveyed in that area and started at an old recognized corner and that his survey tied in with the old established lines. The accuracy of this survey was for the jury, Harris v. McMullan, 212 Miss. 382, 54 So.2d 544, and the trial court committed no error in refusing to exclude it.

217 Miss. at 21, 63 So.2d at 414.

Enough said.

B. The Adverse Possession Claim

There is even less merit to Bay Springs' adverse possession claim.

At trial Bay Springs contended vigorously that the 79 acres in question had become the property of Grissom (and his predecessors in interest) by adverse possession. There was, to be sure, substantial evidence offered by Bay Springs which tended to support this contention. Our review of the proceedings at trial, however, has revealed substantial testimony to the contrary. For example, Mrs. Jessie Vance Sistrunk, who was married for 50 years to Grissom's predecessor in title, recognized the Wades' property line and that prior timber cutting had not encroached upon it. Odell Loper, a neighbor, also gave testimony supportive of the Wades.

The adverse possession issue in this case was essentially one of fact. It was submitted to the jury on conflicting evidence and proper instructions. The jury resolved the issue against Bay Springs. It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact. Our scope of review is severely limited.

We consider the evidence in the light most favorable to the party against whom the motion for judgment notwithstanding the verdict has been made. We disregard any evidence on the part of the moving party in conflict with that evidence (although, of course, we may consider uncontradicted evidence offered by the moving party). If there be credible evidence, and reasonable inferences which may be drawn therefrom, which would support the verdict reached by the jury, that verdict must stand. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); Buford v. Jitney Jungle Stores of America, Inc., 388 So.2d 146, 147 (Miss.1980); Gee v. Hawkins, 402 So.2d 825, 827 (Miss.1981); and City of Jackson v. Locklar, 431 So.2d 475, 478-479 (Miss.1983).

Under these familiar principles and cases, the verdict of the jury in favor of the Wades and against Bay Springs on the adverse possession issue is clearly beyond our power to disturb.

C. Conclusion

For the...