Franco v. Ferrill

• Decision Date: 21 June 2022
• Docket Number: 2021-CA-00053-COA
• Citation: 342 So.3d 1176
• Parties: Tina FRANCO and Roddy A. Vanacor, Appellants v. Linda A. FERRILL and Charles A. Ferrill, Appellees
• Court: Mississippi Court of Appeals

342 So.3d 1176

Tina FRANCO and Roddy A. Vanacor, Appellants

v.Linda A. FERRILL and Charles A. Ferrill, Appellees

NO. 2021-CA-00053-COA

Court of Appeals of Mississippi.

June 21, 2022

ATTORNEY FOR APPELLANTS: MALCOLM F. JONES

ATTORNEYS FOR APPELLEES: JASON BROOKS PURVIS, BRIAN CHRISTOPHER WHITMAN

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

McDONALD, J., FOR THE COURT:

¶1. Tina Franco and Roddy Vanacor appeal from the judgment of the Chancery Court of Hancock County, Mississippi, which held that Linda and Charles Ferrill had adversely possessed waterfront property on a lake owned by Franco and that the Ferrills were entitled to a prescriptive easement to use the lake. The chancery court also found that Franco and Vanacor had trespassed onto the Ferrills’ property by having the land in dispute fenced and that Vanacor had trespassed by removing the decking from piers belonging to the Ferrills. The chancery court ordered Franco and Vanacor to remove the fence or pay damages of $1,800 and ordered Vanacor to pay $5,000 in damages for the removal of the pier. On appeal, Franco and Vanacor challenge the sufficiency of the Ferrills’ evidence to establish adverse possession and a prescriptive easement. They also appeal the court's findings of trespass, its awards of damages, and its dismissal of their claim against the Ferrills for trespass. Having reviewed the record and arguments of counsel, we affirm the chancery court's judgment.

Facts and Procedural History

¶2. Between 1994 and 2006, the Ferrills purchased eleven lots along Kiln-Waveland Road in the Shoreline Park Subdivision in the city of Waveland, Mississippi.¹ On October 20, 1994, they purchased lots 33 and 34 from Mary Davis. The legal description on their deed described the property with the lot numbers purchased in the Shoreline Park Subdivision "as per the official map or plat thereof on file and of record in the office of the Chancery Clerk of Hancock County, Mississippi." Per the official plat, the western side of these two lots faced the road, and the eastern part of lot 33 abutted a lake known as Pine Barren's Pond.

¶3. The Ferrills began to work on these lots, clearing trees, hauling debris, filling stump holes, leveling low spots on the property, and cutting the grass to the water's edge. They also shaped the edge of property on the lake to prevent the collapse of the shoreline. On the other side of the property, there was no access from Kiln-Waveland Cutoff Road to the property, so the Ferrills put in a culvert and made a driveway. They also graded a small street between the two lots, Victoria Street, and put down gravel so they could access the property from that direction. Victoria Street extended to the water's edge as well.

¶4. In 1995, the Ferrills installed a double-wide mobile home on the lots and began living there. They built two decks off their home, put in a pool, built a gazebo and fence, and landscaped the property. The Ferrills also purchased lots 1 and 2 in 1995 from Floriani Taviani and lots 31 and 32 from Lionel Bourgeois. All four of these lots bordered on the lake. The Ferrills proceeded to remove trees and brush on those lots all the way to the water.

¶5. In 1994, the Ferrills also began using the lake for fishing, kayaking, canoeing, and boating. They owned a small boat, a canoe, and a paddle boat that Mrs. Ferrill said she would use for exercise. They also constructed a floating pier/dock that they used for their lakefront activities. Mr. Ferrill placed crab pods in the lake and cast nets to catch shrimp. Mr. Ferrill testified that the general public does not use the lake, and that when he saw individuals who did not own lots on the lake fishing, he told them that they did not have permission to do so. The Ferrills’ use of the lake continued over the years up to the time of the lawsuit they filed in 2019.

¶6. In September 1998, the Ferrills obtained a permit from the Mississippi Department of Marine Resources to construct a pier and deck into the lake and to dredge approximately 100 yards of material from the lake, which they used as a foundation for a building they constructed on lots 1 and 2. The Ferrills proceeded to build the pier and a pavilion near the shore, which the Ferrills later converted into an office.

¶7. On their property, the Ferrills operated a marine construction business that built boathouses, docks, piers, and similar structures. Their office and the shop where they maintained their work vehicles were located on the lots they owned as well as their homestead. Mrs. Ferrill worked in the business, providing estimates for customers and obtaining permits for the work the business did. She was also a photographer, and her husband created a staging area where she could take graduation or family portraits with the lake in the background.

¶8. In 2003, the Ferrills purchased lot 30 from Russell Van Blocklin and Bobbie Morgan. This lot, which also extended to the water, did not need as much clearing as the others, but the Ferrills maintained it throughout the years, cutting grass up to the shoreline. They also planted a garden on the lot.

¶9. In 2006, the Ferrills bought lots 3, 4, 5, and 6 from Earl and Sharon Johnson. Because these were low lying lots that were subject to flooding, the Ferrills brought in soil and laid sod on them all the way to the water's edge. Mr. Ferrill testified that he brought in seven to eight tandem loads of fifteen yards of dirt per tandem to complete this work. He said he maintained all these lots up to the water's edge, mowing the grass as close as he could and weed-eating the rest of the way. He said he followed this maintenance schedule every week to every other week. The Ferrills also removed trash and debris from the lake following Hurricane Katrina.

¶10. The Ferrills lost their mobile home in the hurricane, but in 2006, after living in a FEMA trailer for a year, they moved into a home they built on the property. All told, they had lived on the property and maintained their business for twenty-five years at the time of the trial. Each of the deeds to the lots that the Ferrills purchased merely described the property by lot number "per the official map or plat found in the chancery clerk's office."

¶11. The 17.83-acre lake, which the Ferrills’ property bordered, was owned by Robert Bourgeois,² who deeded it to Louis Bourgeois on September 28, 2006.³ Mr. Ferrill testified that since the time of their original purchase of property in 1994, no one had objected to his family's use of the lake or to his clearing and maintaining the lots to the lake's shore. Both he and his wife presumed that the property they purchased extended all the way to the lake. No one ever told them anything different, even when they built the pavilion and gazebo close to the water's edge. In fact, Lionel Bourgeois, who was Louis Bourgeois’ son, often came to take pictures of the wildlife. Mrs. Ferrill testified he would come on their property, and they would discuss photography. He never said anything about their use of the lake or lakeshore. It was not until January 2019 that a dispute about this arose.

¶12. Although Louis Bourgeois owned the lake for years after obtaining the deed in 2006, he said nothing to the Ferrills about his ownership and did not object to their construction of the pier and floating pavilion or to their use and maintenance of the lake and lakeshore. Vanacor testified that Louis Bourgeois had actual knowledge of the Ferrills’ use of the land and lake in question. Mr. Ferrill admitted that he did not pay taxes on the lake, and he assumed that if anyone did, it would be taxes for the small island in the middle of the lake that was only used by wildlife for nesting. Mr. Ferrill did not know of anyone owning the shoreline around the lake because he assumed his property went to the water's edge. The official plat maps from 1966 do not show any strip of land around the lake; they just show the lots up to and adjoining the lake.

¶13. In October 2017, Bernie and Alexandria Thames conveyed lots 27 and 28 to Vanacor. Vanacor, a commercial fisherman who lived in Louisiana, was aware of the lake after visiting it after Hurricane Katrina. He testified that he worked with Kevin Bourgeois, the son of the lake's owner, Louis Bourgeois. Kevin told Vanacor that if he was interested in buying it, he should talk to his father. Vanacor did so, and Louis Bourgeois quitclaimed the lake to Vanacor on October 30, 2017. Vanacor's deed describes the lake property as "Shoreline Park, Unit #7 (Lake), Section 28, Township 3 South, Range 14 West, Mississippi as per the official plat thereon on file and of record in the office of the Chancery Clerk of Hancock County Mississippi, reference to which is hereby made in aid of and as a part of this description."

¶14. Vanacor then had a survey of the lake done on December 17, 2018. According to this private survey, Vanacor owned not just the lake, but also twelve to fifteen feet along its edge and the land where Victoria Street was located. Vanacor also paid to have the lake stocked with bass and bream. However, Mr. Ferrill testified that prior to that, he and other neighbors had fished the lake with great success. Mr. Ferrill said he knew of no one stocking the lake between 1994 and 2018.⁴

¶15. On November 28, 2018, Vanacor deeded his two lots and the lake to Tina Franco. Franco, who had lived in Florida, had met Vanacor in the Bahamas twelve years prior. She visited the area with Vanacor in 2017 and relocated to Diamondhead, Mississippi, where she worked as a barber. Although she did not live on the lots deeded to her, she said she planned to build on them.

¶16. Even though Vanacor had deeded the property to Franco in 2018, on January 22, 2019, Vanacor applied to the city of Waveland for a permit to erect a fence, asserting that he owned the lakefront property. The permit was granted that same day, and Scott Fence Company proceeded to erect a chain-link fence along the lake, cutting off...