Buford v. Logue

• Decision Date: 26 November 2002
• Docket Number: No. 2001-CA-00977-COA.,2001-CA-00977-COA.
• Parties: B. Pete BUFORD, Buford Land Partnership, LP, Dorothy Faye Kittrell and W.H. Kittrell, Appellants v. Hugh L. LOGUE, Jr. and Myra C. Logue, Appellees.
• Court: Mississippi Court of Appeals

832 So.2d 594

B. Pete BUFORD, Buford Land Partnership, LP, Dorothy Faye Kittrell and W.H. Kittrell, Appellants v. Hugh L. LOGUE, Jr. and Myra C. Logue, Appellees.

No. 2001-CA-00977-COA.

Court of Appeals of Mississippi.

November 26, 2002.

Clifford C. Whitney, III, R.E. Parker, Jr., Vicksburg, for appellant.

Barrett Blake Teller, Vicksburg, for appellee.

Before SOUTHWICK, P.J., LEE and MYERS, JJ.

MYERS, J., for the Court:

¶ 1. B. Pete Buford and Buford Land Partnership, LP (Buford) and Dorothy Faye Kittrell and W.H. Kittrell (the Kittrells) appeal the decision of the Chancery Court of Warren County. The Honorable Pat Wise, sitting as special chancellor, granted fee simple title of two separate parcels and a private road to Hugh Logue, Jr. and Myra C. Logue (the Logues) by adverse possession. Buford and the Kittrells contend that the chancellor erred in granting title by adverse possession to the Logues. Buford and the Kittrells assert the following issues:

1. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LOGUES PROVED ADVERSE POSSESSION OF THE .24 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE;

2. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LOGUES PROVED ADVERSE POSSESSION OF THE .73 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE; AND

3. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LOGUES WERE ENTITLED TO FEE SIMPLE TITLE BY ADVERSE POSSESSION OF THE PRIVATE ROAD RATHER THAN AN EASEMENT.

STATEMENT OF FACTS

¶ 2. The Logues instituted an action in the Chancery Court of Warren County seeking to claim title by adverse possession to several parcels of land. Trial was held based on a second amended complaint. The chancellor granted the Logues title by adverse possession to a .24 acre parcel, a .73 acre parcel, and a private road. The chancellor held a post trial hearing based on the defendants's motion to amend order, and for a new trial, and for other relief. The chancellor amended the order, granting the Kittrells an easement over the private road subject to the Kittrells making improvements to the road. After entry of a final judgment, Buford and the Kittrells appeal.

.24 Acre Parcel

¶ 3. The .24 acre parcel is located in Warren County on Freeman Road. The parcel is also referred to in the record and the briefs as "Lot 219" or "219 Freeman Road." This piece of disputed real property is more particularly described by the chancellor as follows:

Commencing at the northeast corner of Section 20, Township 16 North, Range 4 East, Warren County, Mississippi; thence West, 545.50 feet; thence South, 40.00 feet to the point of beginning of the herein described parcel; thence South 73 degrees 35 minutes for 113.54 feet; thence South 55 degrees 24 minutes 34 seconds West for 34.03 feet; thence South 65 degrees 02 minutes 12 seconds West for 137.66 feet; thence South 78 degrees 19 minutes West 67.70 feet; thence North 49 degrees 22 minutes 51 seconds West for 8.92 feet to the east right of way of Freeman Road; thence with the east right of way of Freeman Road North 49 degrees 31 minutes 22 seconds East for 111.32 feet; thence with the east right of way of Freeman Road, North 35 degrees 35 minutes 03 seconds East for 55.51 feet to the point of beginning containing 0.24 acres, more or less.

¶ 4. Until his death on January 26, 1969, Archie Logue was the record owner of a greater parcel of land which included the.24 acre parcel. Upon Archie Logue's death, title was held by his heirs until their conveyances to Jerry Beard on April 15 and April 17, 1997. Jerry Beard immediately conveyed the land to B. Pete Buford on April 18, 1997. B. Pete Buford bought the land with notice of the presence of the Logues. B. Pete Buford is the record title holder of the .24 acre parcel. All taxes due on the .24 acre parcel have been paid by the record title owners.

¶ 5. In 1967, Hugh Logue, Jr. moved a mobile home onto the land. Testimony reflects that Hugh Logue, Jr. graded the land, put in a gravel driveway, installed a utility pole, a septic tank, and a water tap, and poured concrete slabs for later installation of a carport and storage shed. The Logues later fenced in the property. The Logues claimed that in 1967 Archie Logue gave the .24 acre parcel to Hugh Logue, Jr. as a wedding gift. Buford argued that Archie Logue simply gave the Logues permission to use the parcel of land. Both sides presented conflicting testimony as to whether an attempted gift was made or was there just mere permission. There was no deed or written instrument to evidence a gift. Testimony at the trial also indicated that Archie Logue refused to give a deed to Hugh Logue, Jr.

¶ 6. The land was occupied by the Logues from 1967 until 1976. The Logues moved the mobile home off the land in 1976 but continued to use the land for storage and for gardening. The carport and storage shed remained. Others, including the Kittrells, used the land for gardening and recreation. There was conflicting testimony as to whether the use of the property by other people was with or without the Logues's permission. The Logues presented testimony that they gave both expressed or implied consent. This type of use continued until 1984 when Howard Kittrell moved a mobile home onto the land. Testimony at trial conflicted as to whether Hugh Logue, Jr. granted Howard Kittrell permission to move onto the land or whether Hugh Logue, Jr. told Howard Kittrell that he was not the owner. Howard Kittrell remained on the land until 1990. Trey Logue, son of the Logues, bought the mobile home from Howard Kittrell. Trey Logue remained on the land until 1997.

¶ 7. In 1997, before Jerry Beard conveyed the land to B. Pete Buford, Hugh Logue, Jr. attempted to purchase the land from Jerry Beard. Both sides presented conflicting testimony as to whether this was an admission by the Logues that they did not own the property or an attempt by the Logues to try and settle any potential dispute without going to court. After Jerry Beard declined to sell the land to the Logues, he sold it to Buford. Trey Logue was demanded to leave the land by Glenn Kittrell. Glenn Kittrell was acting under order of Buford. Testimony was presented that Hugh Logue, Jr. knew he did not have record title as owner when Trey Logue left the land.

¶ 8. A videotape was offered by Buford at the post trial hearing, but not the trial. The tape is an attempt to show an admission by Hugh Logue, Jr. that the .24 acre lot did not belong to the Logues. The chancellor excluded the videotape because the posttrial hearing was granted on matters concerning the private drive, not the.24 acre parcel.

.73 Acre Parcel

¶ 9. The .73 acre parcel is located in Warren County. The parcel is also known as "225 Freeman Road." This piece of disputed real property is more particularly described by the chancellor as follows:

Beginning on the west right of way line of Freeman Road, marking the Northeast corner of H.L. Logue lot as recorded in Deed Book 422, page 547, Warren County Courthouse, running thence North 44° 25' West 230 feet along the East side of said lot, thence North 69° 0' East, 190.5 feet to the West right of way of Freeman Road, thence following said right of way South 32° 7' East, 41.6 feet, thence South 24° 27' East, 48.8 feet, thence South 11° 5' East, 47.2 feet, thence South 2° 5' West, 29.2 feet, thence South 24° 40' West, 38.7 feet, thence South 50° 31' West, 65.9 feet to the point of beginning. Being all in Section 20, Township 16 North, Range 4 East, Warren County, Mississippi, containing 0.73 acres.

¶ 10. Russell Barnes owned a 4/6 interest, Ella Mae Barnes Logue owned a 1/6 interest, and Elmer Barnes owned a 1/6 interest in the land. In 1974, Russell Barnes deeded the entire .73 parcel of land to Hugh Logue, Jr., even though he did not own all the land. The Logues prepared the land by grading the land and installing a septic tank. The Logues built a tool shed on the land and used the land for storage. The Logues also staked out a portion of the land on which to build a house, although the house was never built. Elmer Barnes assisted Hugh Logue, Jr. in staking the land. The Kittrells later used the land for parking trucks. Both sides presented testimony as to whether the Kittrells sought permission from the Logues as owners. In 1997, Ella Mae Logue conveyed her interest in the land to Hugh Logue, Jr. Elmer Barnes died and his 1/6 interest passed to Margaret Barnes. Margaret Barnes conveyed her interest to B. Pete Buford, with his notice of the Logues acting as true owners. The Logues own a 5/6 interest in the land and Buford owns a 1/6 interest in the land. The Logues have paid the taxes on the land since the 1974 conveyance.

The Private Road

¶ 11. The private road is located in Warren County. This piece of disputed real property is more particularly described by the chancellor as follows:

Commencing at a found iron stake on the westerly line of Freeman Road, said iron stake marking the most northeast corner of H.L. Logue Sr., and Ella Mae Logue 2.37 acre tract as described in Deed Book 928 at Page 278 of Warren County, Mississippi Land Records; from iron stake run thence South 83° 33' 50" East, 793.54 feet to an iron stake marking the southwest corner of a .67 acre tract conveyed by Grantor herein to William Daniel Ettinger and Dana Logue Ettinger by Deed recorded in Deed book 1052 at Page 234 of Warren County, Mississippi County Land Records; run thence South 74° 15' 17" East 60.15 feet to the centerline and point of beginning of a 20 foot easement providing ingress and egress to Freeman Road, a public paved road; from said point of beginning run along the center line of said 20 foot easement the following bearing and distances to wit:

Thence North 87° 08' 23" West, 75.12 feet; thence North 80° 57' 27" West, 71.54 feet; thence North 70° 07' 53" West, 95.51 feet; thence North 81° 25' 50" West, 56.94 feet; thence North 85° 04' 29" West, 49.37 feet; thence North 70° 25' 30" West 68.41 feet; thence North 67° 22' 49"

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