Davis v. Clement

• Decision Date: 24 April 1985
• Docket Number: No. 55239,55239
• Citation: 468 So.2d 58
• Parties: Boyd L. DAVIS and Ray Ellis Davis v. Diana H. CLEMENT, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Corporation, C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Suellen T. Verger.
• Court: Mississippi Supreme Court

Page 58

468 So.2d 58

Boyd L. DAVIS and Ray Ellis Davis v. Diana H. CLEMENT, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr. Crown Zellerbach Corporation, C.O. Trest, Marion T Hardwick, Elizabeth W. Trest and Suellen T. Verger.

No. 55239.

Supreme Court of Mississippi.

April 24, 1985.

Conrad Mord, Tylertown, for appellants.

John T. Armstrong, Jr., Edward E. Patten, Jr., Armstrong & Hoffman, Hazlehurst, Joseph M. Stinson, Tylertown, John Mark Weathers, James D. Johnson, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellees.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

In this action the owners of an 80 acre tract of land in Walthall County, Mississippi, claimed that they had adversely possessed some 70 additional and adjacent acres and sought to confirm in them title thereto. At the conclusion of the would be adverse possessers' proof, the chancery court sustained the record title holders' motion to dismiss, holding the adverse possessors' purported acts of possession sporadic and ineffectual and, as a matter of law, insufficient to fly the flag of ownership over the disputed acres for the requisite ten year period. For the reasons set forth below, we affirm.

II.

Boyd L. Davis and Ray Ellis Davis, Plaintiffs below and Appellants here, commenced this civil action on February 12, 1982, by filing in the Chancery Court of Walthall County, Mississippi, their complaint to quiet and confirm title. After various pretrial proceedings, the matter was called for trial on July 25, 1983, Honorable R.B. Reeves, Chancery Judge, presiding.

The evidence reflects that Boyd L. Davis and Ray Ellis Davis are the owners of record title to an eighty acre tract of land consisting of the east one-half of the northwest quarter of Section 27, Township 1 North, Range 13 East, Walthall County, Mississippi. This is some two to two and a half miles southeast of Improve, Mississippi.

The disputed lands with respect to which the Davises have asserted a claim of adverse possession comprise approximately seventy (70) additional acres and lie adjacent to the Davises' land to the south, east and north. Record title to various portions of the disputed lands and various interests therein lie in Diana H. Clement, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Corporation C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Sue Ellen T. Verger. These parties were the Defendants below and are the Appellees here.

The Davises sought to prove adverse possession of the disputed 70 acres for a period in excess of thirty-five (35) years. Through only two witnesses, Boyd L. Davis and a surveyor, W.I. Connerly, the Davises sought to establish that they had kept the lands under fence, had grazed cattle and grown timber thereon, and had sold gravel therefrom. The testimony on each of these points was vague, imprecise and incomplete.

The thrust of the Davises' case centers upon the testimony of Boyd L. Davis regarding the fence. Davis testified that in 1946 he helped his grandfather patch and repair a fence around the disputed land. He stated further that several years later he was on the property to help plant trees and the fence was still there. In time, however, Davis concedes that the fence fell into a state of disrepair or disappeared altogether. A timber cutting operation destroyed much of the fence. Other parts were destroyed as gravel was removed.

Importantly, the Davises never established that the disputed area had been effectively fenced for ten consecutive years. Further, the Davises offered no testimony to the effect that either they or their predecessors in title ever intended that the fence establish a claim of ownership to the property. W.I. Connerly, the surveyor, testified that he surveyed the fence line around the disputed property in 1971. He found remnants of an old fence that had fallen into alternate states of disrepair or disuse. He could not remember if he was working for Davis or for Clements/Trest.

The Davises also rely upon the gravel sales made to Walthall County. Apparently this occurred on several occasions over a period of years, although the record is devoid of evidence of dates, identity of the parties engaging in the gravel removal operations, and the precise location of the lands from which the gravel was removed. One exhibit reflects sales from a gravel pit located partly on lands the record title of which is vested in the Davises and partly on the lands of Appellee Clement. No evidence reflected from which part of the pit the gravel was taken when sold. For aught that appears, it could have come solely from the lands record title of which is vested in the Davises.

Davis testified that he planted some trees on the disputed property within a year or two after 1948. There is no evidence reflecting the number of trees planted or the exact area where they were planted. Further there is no evidence showing Davis' intent to possess the lands in dispute by this planting. There is no evidence that the Davises or their predecessors ever cut, sold or removed any timber from the disputed property.

The evidence reflects that the Davises leased the eighty (80) acre tract which he owned to a Mrs. Strogner from 1948 or 1949 until 1973 or 1974 and to a Harold Lott in 1976. There is no direct evidence, however, that either Mrs. Strogner or Mr. Lott ever went on the disputed property or used it for any purpose. Indeed, there is no evidence that Davis ever went on the property other than the incident in 1946 when he helped his grandfather repair fences, the incident in 1948 where he planted trees and in 1982 when he took photographs in preparation for trial. The record is silent as to whether other members of the Davis family, Mary Lee Davis or Ray Ellis Davis, ever went on the property.

The record reflects that the Davises paid taxes consistently on only eighty (80) acres of land. They never made any attempt to have the full one hundred and fifty (150) acres placed on the tax roles or have the additional acreage assessed to them.

Once their two witnesses, Boyd L. Davis, who is one of the plaintiffs, and W.I. Connerly, a surveyor, had completed their testimony, Plaintiffs rested, whereupon all Defendants moved the Court to dismiss the action by reason of Plaintiffs' failure to establish a prima facie case. In a bench opinion, the Chancellor granted the motion. On August 18, 1983, a final decree was entered carrying into effect the Chancellor's bench ruling. In due course thereafter, the Davises perfected this appeal.

III.

We emphasize the procedural posture of the case. The Plaintiffs Davis presented their case and rested. At that point the Defendants moved the trial court that, as a matter of law, the Davises had failed to make out a prima facie case. Applying the controlling rules of law--including that regarding the burden of proof--the thrust of Defendants' motion was that, considering the evidence then before the Court, Defendants were entitled to entry of judgment. Such a motion invokes Rule 41(b), Miss.R.Civ.P.

We emphasize that this motion was presented to a trial judge sitting without a jury. In such a setting, the trial court is not required to look at the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable favorable inferences. Notions emanating from Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and many other similar cases--whether arising in the context of a motion for a directed verdict, a request for a peremptory instruction or a motion for judgment notwithstanding the verdict--have no application here. Those familiar rules apply only in jury trials where we are concerned that rights secured by Miss. Const. Art. 3, Sec. 31 (1890) (right to trial by jury in civil cases) be respected. See City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).

Put differently, Paymaster Oil and progeny require that the evidence be viewed in the light most favorably to the non-moving party, solely because this is the only means we have devised for protecting the non-moving party's constitutional right to have a jury pass on the factual questions in the case. When the trial judge sits without a jury, no such constitutional rights come into play.

Here the question presented to the trial judge, sitting without a jury, is whether, considering the evidence which has been offered by the plaintiff (which, of course, is all of the evidence then before the court), and giving it such weight and credibility as it would be entitled to were the trial judge engaged in making final findings of fact and rendering final judgment, the trial judge concludes that plaintiff has made out a case which if not rebutted would entitle him to judgment. The trial judge must, as a matter of law, deny the motion to dismiss and require the Defendant to go forward with his evidence if, and only if, considering that the evidence offered by the plaintiff were all of the evidence to be offered in the case, the trial judge would be obligated to find in favor of the plaintiff.

If, considering the evidence fairly, as distinguished from in the light most favorable to the plaintiff, the trial judge would find for the defendant--because plaintiff has failed to prove one or more essential elements of his claim, because the quality of the proof offered is insufficient to sustain the burden of proof cast upon the plaintiff, or for whatever reason--the proceeding should be halted at that time and final judgment should be rendered in favor of the defendant. ¹

Obviously, when there is doubt, the trial judge generally ought to deny the motion to exclude and dismiss but such is the exercise of sound discretion,...