City of Waynesboro v. McMichael

• Decision Date: 08 April 2003
• Docket Number: No. 2001-CA-01426-COA.,2001-CA-01426-COA.
• Citation: 856 So.2d 474
• Parties: CITY OF WAYNESBORO, Mississippi, Appellant, v. Robert M. McMICHAEL and Pauline McMichael, Appellees.
• Court: Mississippi Court of Appeals

856 So.2d 474

CITY OF WAYNESBORO, Mississippi, Appellant, v. Robert M. McMICHAEL and Pauline McMichael, Appellees.

No. 2001-CA-01426-COA.

Court of Appeals of Mississippi.

April 8, 2003.

Rehearing Denied August 12, 2003.

Certiorari Denied December 11, 2003.

John Ray Gunn, Waynesboro, attorney for appellant.

Terry L. Caves, Laurel, attorney for appellee.

En Banc.

LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In February 1996, Steve Morris and the City of Waynesboro ("City") filed a joint application for a temporary restraining order and preliminary injunction, wherein the City sought to remove a fence, which appellees Robert and Pauline McMichael had erected, from across Katherine Street. Morris, who purchased the property in 1994, used the road to access his otherwise landlocked residence, and the McMichaels claimed a portion of the road was their private property. A Wayne County chancellor granted the application for temporary restraining order, and the parties signed an agreed order granting preliminary injunction, agreeing that the street would remain open until the matter of the injunction and issue of ownership of the property was tried on the merits.

¶ 2. In an amended application for preliminary injunction and complaint, the City asked the chancellor to issue a preliminary injunction concerning the following: (1) prohibiting the McMichaels from impeding, blocking, or interfering with the City's ownership and use of Katherine Street; (2) cancellation of clouds on title to all lands depicted as Katherine Street on the plat of Hudson Park Subdivision; (3) an adjudication that the City had legal title to the lands known as Katherine Street by virtue of statutory dedication by grant and/or common law dedication based on adverse possession and usage; (4) confirmation of title to Katherine Street in the City pursuant to § 11-17-29; and (5) as alternative relief, an adjudication that Morris was entitled to an easement over and across Katherine Street under the doctrine of equitable estoppel. In response, the McMichaels denied the allegations in the City's complaint and filed a counterclaim asserting ownership of the portion of Katherine Street lying west of the fence erected by the McMichaels. In their counterclaim, the McMichaels requested the court to set the land line and to quiet and confirm title or, in the alternative, to confirm title due to abandonment and non-use by the City.

¶ 3. After a trial on the merits in October 2000, the chancellor established the boundary line and found that Morris would be landlocked per the boundary; thus, the chancellor treated the case as an inverse condemnation situation finding the City had "taken" a portion of the McMichaels's property. The chancellor further awarded attorney's fees, survey costs, expert witness fees and appraisal fees to the McMichaels.¹ Thereafter, the City filed a motion to alter and amend final judgment or, in the alternative, motion for reconsideration, which was denied. The McMichaels filed a motion to alter or amend final judgment, which the chancellor granted. In so doing, the chancellor vacated his prior judgment in which he had awarded $500 damages to the McMichaels and had found the City had inversely condemned the property, and he confirmed title to the land in the McMichaels.

¶ 4. On appeal, the City contests the chancellor's finding that the City did not hold fee simple title to Katherine Street, and that the chancellor erred in awarding damages in the absence of any specific request for such fees and in contradiction of established statutes and caselaw. We review these issues and find no error in the chancellor's decision; thus, we affirm.

DISCUSSION OF THE ISSUES

I. DID THE CHANCELLOR ERR IN RULING THAT THE CITY DID NOT HOLD FEE SIMPLE TITLE TO KATHERINE STREET?

¶ 5. In its first argument, the City argues the chancellor was clearly erroneous in adjudicating the boundary line, resulting in the McMichaels's owning fee simple title to a portion of the disputed roadway known as Katherine Street. We look to our standard of review:

In boundary disputes, a determination of the legal boundary between properties is a question of fact for the chancellor. The same standard applies to questions involving the accuracy of a survey. The chancellor's decision in this regard will not be disturbed on appeal unless we find that the chancellor committed manifest error.

Kleyle v. Mitchell, 736 So.2d 456(¶ 8) (Miss.Ct.App.1999) (citations omitted).

¶ 6. The City claims the chancellor misinterpreted the testimony and evidence in setting the boundary line, and in failing to recognize an old fence line as the proper boundary. Several surveys were conducted on the McMichaels's property, all reaching different conclusions as to the proper boundary line. The City chooses to rely most heavily on the testimony of Spencer Hudson, the son of H.S. and Katherine Hudson who dedicated the land to the City in 1959. Spencer Hudson was a practicing but not licensed surveyor when the plat was dedicated to the City, and he used an old wire fence as the dividing line between the Hudson property and the McMichael property. The City also refers us to adjoining landowner Gene Barnett's testimony. Barnett testified that when he purchased his property in 1962, a fence line on the east side of his property lined up with the north/south fence line bordering Katherine Street, and he recognized the fence as the boundary line. The McMichaels rely on the testimony of surveyor James Saul who established the section line between sections one and two, as described on his plat, and concluded that the McMichaels's property was east of the section line.

¶ 7. The 1959 dedication included a metes and bounds description, which did not encompass the area west of the iron pipe the chancellor used to mark the boundary, and which also made no reference to the fence line the City alleges is the true boundary. The McMichaels argue that the plain language of the subdivision plat clearly shows where the boundary line is to be, without reference to any fence, and they cite to Biloxi Dev. Comm'n v. Frey, 401 So.2d 716 (Miss.1981), which states "[a] call for natural or artificial monuments will prevail over courses and distances in discrepancies in deeds...." Id. at 720. Here, no natural or artificial monuments, including the fence, are referenced in the deed; thus, the City's argument that the fence is the proper boundary does not prevail over the specific metes and bounds language set forth in the deed itself.

¶ 8. The City also alternatively argues that they acquired title to Katherine Street via adverse possession. To prove entitlement to land via adverse possession, "the property must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.... The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met." Ellison v. Meek, 820 So.2d 730(¶ 13) (Miss.Ct. App.2002).

¶ 9. During the trial, the City made a very feeble argument that it was entitled to the strip of land via adverse possession. The City claims that Spencer Hudson's and Gene Barnett's testimony are sufficient to support a finding of ownership by adverse possession, and the City cites Roebuck v. Massey, 741 So.2d 375 (Miss.Ct. App.1999), as authority.

¶ 10. In Roebuck, the evidence showed that the fence in question had existed since 1928, timber was cut on the land in the 1940s, cattle grazed on it in the 1950s, and the would-be adverse possessors exclusively used the land from 1928 through 1974. Id. at (¶ 42). Additionally, the chancellor reviewed the testimony of four different neighbors, all of whom testified that an old fence had been recognized as the boundary between adjoining property. Id. at (¶¶ 42-44). The chancellor recognized the rule that the existence of an old fence, including disputed land in with the land of the claimant, has previously been held to constitute strong evidence of the elements required to prove adverse possession,² and he concluded that substantial evidence existed to show the appellees acquired the land through adverse possession, which this Court affirmed. Id.

¶ 11. The present case is distinguishable from Roebuck. In contrast to the numerous neighbors who testified in Roebuck and vast evidence of activity through the years, in the present case only one neighbor testified, and the evidence from all of the surveys was conflicting. Plus, the only evidence the City presented concerning activity on the property was that the City bushhogged the area once or twice during a thirty-five year period. The City made no improvements to the road nor erected any signs or repaired the fence, and any use by the City was sporadic at best, failing to meet the "continuous" or "exclusive" element of the adverse possession test. The chancellor was not provided clear and convincing evidence concerning the use of or activity on the land in question as would pass title through adverse possession. Thus, we find no merit to the adverse possession argument.

¶ 12. This decision concerned a preliminary injunction and fees and damages related thereto; thus, the chancellor did not order relief concerning Morris's dilemma of accessing his property. With our decision to affirm the chancellor, however, Morris is left with at least three alternatives concerning access to his property: he can seek an easement from the McMichaels to use the portion of the road which includes their property, he can purchase the McMichaels's land which makes up part of the road, or, since the City assured Morris at the time he bought his lot that the access road was City property, he could urge the City to "take" the property by eminent domain since Morris is landlocked. Regardless of how Morris proceeds from this point, we find no clear error in the...