Ellison v. Meek

Decision Date18 June 2002
Docket NumberNo. 2001-CA-00834-COA.,2001-CA-00834-COA.
Citation820 So.2d 730
PartiesJames David ELLISON and Rebecca E. Ellison, Appellants/Cross-Appellees, v. Walter Buchanan MEEK and Patsy H. Meek, Appellees/Cross-Appellants.
CourtMississippi Court of Appeals

George M. Mitchell, Jr., Eupora, attorney for appellants.

Armis E. Hawkins, Houston, Buchanan Meek, Eupora, attorneys for appellees.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

THOMAS, J., for the Court.

¶ 1. On May 9, 2001, the Webster County Chancery Court held that the Ellisons had no interest in the property that they purchased by quitclaim deed which is located on the western border of the Meek property. Aggrieved, the Ellisons present several assignments of error, which we have clarified and summarized as follows:

I. THE LOWER COURT ERRED IN ITS APPLICATION OF ADVERSE POSSESSION.
II. THE LOWER COURT ERRED IN ALLOWING THE TESTIMONY OF MIKE GORALCZYK.
III. THE LOWER COURT ERRED IN ALLOWING HEARSAY EVIDENCE OF THE DECEASED MR. BRIGHT.

Finding no error, we affirm.

¶ 2. The Meeks have filed a cross-appeal, presenting two assignments of error, which we have clarified and summarized as follows:

THE ELLISONS HAVE SLANDERED PROPERTY OWNED BY THE MEEKS, THUS ENTITLING THE MEEKS TO DAMAGES INCLUDING ATTORNEY'S FEES AND SURVEYOR'S FEES.

Finding no error, we affirm.

FACTS

¶ 3. In 1953, Charlie and Kavis Lollar purchased 14.64 acres of land on the south side of Highway 82, just outside the city limits of Eupora, Mississippi. The description of this piece of property was very definite, as it was likely prepared by a surveyor. One border of the property was Highway 82 for a specified distance; one border of the property was the south line for a specified distance; and the third border was a straight line connecting the first two, which made up the east side of the lot.

¶ 4. On August 17, 1961, the Lollars sold their lot to C.A. Walker. On December 4, 1969, Walker sold the lot to the Brights. The same description used in the Lollar purchase was used when the Lollars sold the lot to Walker and when Walker sold the lot to the Brights.

¶ 5. On January 20, 1969, the Meeks purchased 18.5 acres of land which was adjacent to the Bright property. The deed issued in this purchase listed the west line of the lot as the exact same line listed as the east line of the Lollar deed, the Walker deed and the Bright deed.

¶ 6. On July 13, 1994, Ms. Bright, who had recently become a widow, sold her lot to the Ellisons. The same description used in the Lollar deed, the Walker deed and the Bright deed was also used in the warranty deed when Ms. Bright sold the lot to the Ellisons.

¶ 7. Ms. Bright also sold the Ellisons an additional piece of property that was located to the east of the property listed in the warranty deed. Because this additional property was not included on the warranty deed, Ms. Bright made the sale by a quitclaim deed. This additional property was mainly timberland, which enhanced the value of the total property the Ellisons were purchasing. The quitclaim deed described the property conveyed in the same manner as the warranty deed, with exception to the eastern border line. Rather than listing the surveyed border line that was in the warranty deed, the quitclaim deed listed an old fence line as the eastern border. This old fence line can be found several feet east of the eastern border line listed in the warranty deed. The old fence line does not completely enclose the property. Rather, it is a meandering old barbed wire fence.

¶ 8. On April 1, 1994, the Meeks hired Mike Goralczyk to survey the property line between the Meek property and the Ellison property. On January 25, 2000, the Meeks filed a complaint to remove the Bright/Ellison quitclaim deed from the record as a cloud upon the Meeks' title. This complaint further asked for compensation for attorney's fees as well as surveyor's fees.

¶ 9. The Ellisons' answer to this complaint asserted that the Ellisons and their predecessors in title had acquired the property in question by adverse possession. The answer further asked the court to confirm title in the property in question to the Ellisons.

¶ 10. After hearing all of the evidence from both parties, the lower court found that the quitclaim deed was null and that no adverse possession occurred. Even though the lower court held in the Meeks' favor, it declined to award them compensation for attorney's fees and surveyor's fees.

STANDARD OF REVIEW

¶ 11. This Court has a limited standard of review in examining and considering the decisions of a chancellor. McNeil v. Hester, 753 So.2d 1057 (¶ 21) (Miss.2000). "The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony." Fisher v. Fisher, 771 So.2d 364, 367 (Miss.2000) (citing Richard v. Richard, 711 So.2d 884, 888 (Miss.1998)). A chancellor's findings will not be disturbed upon review by this Court unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). "The standard of review employed by this Court for review of a chancellor's decision is abuse of discretion." McNeil, 753 So.2d at 1063 (¶ 21). The standard of review for questions of law is de novo. Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999).

ANALYSIS

I. DID THE LOWER COURT ERR IN ITS APPLICATION OF ADVERSE POSSESSION?

¶ 12. Mississippi Code Annotated § 15-1-13(1) defines adverse possession as follows:

Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7.

Miss.Code Ann. § 15-1-13(1) (Supp.2001).

¶ 13. Our supreme court has firmly established the following six essential elements which must be met in order to successfully make a claim of 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. Sharp v. White, 749 So.2d 41 (¶ 7-8) (Miss. 1999); Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990); Pieper v. Pontiff, 513 So.2d 591, 594 (Miss.1987); Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met. West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991).

¶ 14. In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder upon notice that the lands are held under an adverse claim of ownership. Peagler v. Measells, 743 So.2d 389, 390 (Miss.Ct.App.1999). "[M]ere possession is not sufficient to satisfy the requirements of open and notorious possession." Craft v. Thompson, 405 So.2d 128, 130 (Miss. 1981); see also People's Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304 (Miss. 1976)

; Trotter v. Gaddis & McLaurin, 452 So.2d 453 (Miss.1984); Coleman v. French, 233 So.2d 796, 796 (Miss.1970). The adverse possessor must "fly the flag over the land and put the true owner upon notice that his land [is] held under an adverse claim of ownership." Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 687, 16 So.2d 24, 25 (1943). "[A] land owner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious." People's Realty,

336 So.2d at 1306.

¶ 15. "If a fence encloses the property for a period of at least ten years, under a claim of adverse possession, title vests in the claimant and possessor, even though the fence was subsequently removed or fell into disrepair." Roy v. Kayser, 501 So.2d 1110, 1112 (Miss.1987) (quoting Cole v. Burleson, 375 So.2d 1046, 1048 (Miss.1979)). The existence of an "old barbed wire fence," as sole evidence does not constitute adverse possession. Davis v. Clement, 468 So.2d 58, 63 (Miss.1985). The permissive use by the possessor of the property in question defeats the claim of adverse possession. Gadd v. Stone, 459 So.2d 773, 774 (Miss.1984). The actual "activity within the fenced area shows open and hostile possession." Pittman v. Simmons, 408 So.2d 1384, 1386 (Miss. 1982). However, the acts of cutting of timber and occasional pasturing of the land are insufficient to constitute open and hostile possession. Roy, 501 So.2d at 1112.

¶ 16. The Ellisons first assert that the chancellor did not properly apply adverse possession law when he found that the fence was not a boundary line. In making this assertion, the Ellisons cite several cases where the appellate court found that an old fence composed a boundary line which played a part in acquiring property by adverse possession. The Meeks respond that Mississippi law dictates that the presence of a fence is only evidence to be considered when considering the issue of the location of a property boundary line. It is true that the mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the properties. Stringer v. Robinson, 760 So.2d 6, 10 (Miss.Ct.App.1999); Davis, 468 So.2d at 60; Gadd, 459 So.2d at 775.

¶ 17. There are several problems with the Ellisons' contention that they gained ownership of the land in question by adverse possession. Most notable is their reliance on the old barbed wire fence. The Ellisons, who have the burden...

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