Cole v. Burleson

• Decision Date: 10 October 1979
• Docket Number: No. 51475,51475
• Parties: MISS 79-514 Doris Clements COLE, Executrix of the Estate of Lona E. Clements, Deceased v. Robert H. BURLESON et ux.
• Court: Mississippi Supreme Court

Page 1046

375 So.2d 1046

MISS 79-514 Doris Clements COLE, Executrix of the Estate of Lona E. Clements, Deceased v. Robert H. BURLESON et ux.

No. 51475.

Supreme Court of Mississippi.

Oct. 10, 1979.

Mitchell, McNutt, Bush, Lagrone & Sams, Thomas D. Murry, Tupelo, for appellant.

Russell & Russell, Frank A. Russell, Fulton, for appellees.

Before SMITH, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

Lona E. Clements and Doris Cole filed suit in the Chancery Court of Itawamba County, August 31, 1977, seeking to enjoin Robert H. Burleson and Shirley A. Burleson, husband and wife, from trespassing upon certain property and to require them to place said property in its original condition. The Burlesons filed suit on November 5, 1977, against Clements and Cole to quiet and confirm their title to the lands involved. The cases were consolidated, and, after conclusion of all the evidence, the chancellor went upon, and inspected, the property with attorneys for all parties, subsequently rendered a decree dismissing the bill of complaint filed by Clements and Cole, held that the Burlesons were vested with title to the lands by adverse possession, and quieted and confirmed title in them. Clements and Cole appeal and assign the following errors in the trial:

(1) The trial court erred in determining that appellees established their title to the disputed 17.1 acres by adverse possession of a predecessor in title.

(2) The trial court erred in failing to find that appellants, under color of title coupled with actual possession of a part of the land described as well as by acts of ownership upon the disputed property, in the absence of conflicting actual possession of another for the statutory period, reacquired title to the subject property by adverse possession.

Appellees' deed described the land as follows:

"201/2 acres, more or less, in the Southeast 1/4 of Section 29, Township 7, Range 11 East, described as follows: Beginning in the hollow north of the Red Bay and Fulton road on the Mississippi and Alabama State line at an iron stake, thence in a southern direction following said hollow 126 rods to corner of land previously sold W. A. Bostick, thence West to quarter section line, thence south to south boundary line, of said 1/4 section; thence East along said line to Red Bay and Fulton road, thence northeast following said road to the State line, thence north along the State line to said iron stake, the said beginning point, being and situated in Itawamba County, Mississippi hereby intending to convey that parcel of land deeded by G. R. Robinson to Onis Howell and wife, Arvie Howell by instrument dated January 18, 1951 and recorded in Book 161 at page 414, Itawamba County Chancery Clerk's office."

The evidence is undisputed that the parties claim from a common source of title; that the appellees' deed called for 201/2 acres, more or less, in the SE-1/4 of Section 29, Township 7, Range 11 East; that only 3.8 acres of the deed description lay in the SE-1/4; that 17.1 acres involved in this suit were located in the SW-1/4; and that appellees' deed described no land in the SW-1/4. It is further undisputed that all predecessors in title of appellees acquired the land by the same description; that on April 3, 1929, J. F. Mink was deeded 201/2 acres under said description; that he built and maintained fences around the 201/2 acres, kept cattle thereon, and exercised possession over same until 1949; that on December 2, 1949, Mink's heirs conveyed said land to R. F. Robinson; and that on January 18, 1951, it was conveyed thence to Onis and Arvie Howell, thence to Arvie and Woodrow O. Howell February 17, 1955, thence to appellees November 16, 1972.

Onis Howell, grantee of J. F. Mink, claimed and used the 201/2 acres and knew of no other person who claimed same. He did not keep up the fence and conveyed same to his son and daughter-in-law in 1955. Since 1949, the fences around said land deteriorated to the point that only remnants of wire and "wire signs" in trees, and posts remained to indicate where the fence line had been. The land is rough, unimproved with no buildings thereon, and difficult to walk over. Appellees cut timber from said land (on one occasion appellants obtained the stumpage payments) and both appellees and appellants executed right-of-way easements to Texas Eastern Transmission Lines. After hearing the evidence and viewing the property, the chancellor found that J. F. Mink, who occupied the same from 1929 until 1949, exercised possession and ownership of said property for a period of twenty (20) years, that title ripened in him by adverse possession, and that appellees are vested with same through him and his successors in chain of title.

In Kayser v. Dixon, 309 So.2d 526 (Miss.1975), the Court said:

"Property belonging to another may be (without color of title)...