Houston v. U.S. Gypsum Co.

• Decision Date: 03 August 1981
• Docket Number: No. 79-3120,79-3120
• Citation: 652 F.2d 467
• Parties: George T. HOUSTON, III and Ruth H. Jarvis Baker, Plaintiffs-Appellees, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

652 F.2d 467

George T. HOUSTON, III and Ruth H. Jarvis Baker, Plaintiffs-Appellees, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellant.

No. 79-3120.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 3, 1981.

James S. Gilliland, Memphis, Tenn., Melburn E. Laundry, U. S. Gypsum Co., Chicago, Ill., for defendant-appellant.

Frank E. Everett, Jackson, Miss., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CHARLES CLARK and RANDALL, Circuit Judges, and SHARP ^*, District Judge.

CHARLES CLARK, Circuit Judge:

This is a Mississippi adverse possession case on appeal from proceedings held following a remand from this court, 569 F.2d 880. At issue is title to wild, undeveloped accretion property on the southern tip of Stack Island in the Mississippi River. The plaintiffs, George T. Houston, III, and his sister Ruth Houston Jarvis Baker, are record owners of Stack Island proper. The defendant, United Stated Gypsum Company, owns the accretion property which is the subject of this litigation. The district court held that the Houstons had acquired title to the island accretions by adverse possession. We affirm.

I.

Most of the facts pertinent to this appeal are uncontested. Stack Island lies in the Mississippi River west of the main river channel but east of the Louisiana-Mississippi state line. It is located in Issaquena County, Mississippi, near Lake Providence in East Carroll Parish, Louisiana.

The Houstons are successors in a chain of title to the island reaching back to an 1881 patent from the United States to a private purchaser, Stephen B. Blackwell. In 1938 Blackwell's successors in interest conveyed the property to the Houstons' grandfather by a deed containing the following description of the property:

Section Twenty-Seven (27), Township Eleven (11), Range Nine (9), containing One Thousand (1000) acres, more or less, together with all the accretions or additions thereto, being what is commonly known as Stack Island .... (Emphasis supplied.)

By 1953 George Houston had acquired title to a three-fourth interest in Stack Island, and Ruth Jarvis Baker had acquired a one-fourth interest. Each of the intervening instruments of conveyance recite words of description identical or substantially similar to that contained in the 1938 deed, including the emphasized language concerning accretions.

The United States Gypsum Company has owned a large tract of land in Issaquena County since 1950. Gypsum's property, referred to as Shipland Plantation, is situated on the east bank of the main Mississippi River channel across the river from East Carroll Parish, Louisiana. The 1950 deed conveyed to Gypsum the Shipland Plantation lands along with "all accretions and batture lands adjoining or in any way connected with the above described land ... and any islands located between the above described lands (and) the Louisiana-Mississippi state line ...."

The disputed property consists of approximately 1000 acres of marshy land located on the southern tip of Stack Island proper. This land was formed by accretion since 1925, the divided flow of the river gradually eroding the northern end of the island and depositing alluvion on the southern end. That slow, downstream growth eventually extended the island southward so that part of it reached below the western extension of the northern boundary to Gypsum's Shipland Plantation property on the Mississippi shore. In fact, by 1962 more of the island was located south of Gypsum's extended northern property line than was located north of it.

The land in controversy is extremely wild. It is not susceptible to habitation, improvement, or cultivation and never has been fenced effectively. It is subject to frequent annual flooding and is completely covered by water for about three to five months each year. This wild, marshy land is primarily valuable for growing timber, grazing livestock, and hunting.

The controversy out of which this lawsuit arises occurred in 1972 when Gypsum cut 856 cords of willow from the southern end of Stack Island. The Houstons brought this action the following year in order to quiet title to the land and recover the value of the cut timber. The Houstons based their claim on two alternative theories: that they held title to the southern portion of Stack Island because island accretions belong to the island owner regardless of how far they may extend or, if Gypsum owned the accretion property, that they had acquired title to the land by virtue of their adverse possession for more than the statutory ten-year period. The district court rejected both theories. It held Gypsum owned the disputed property because title to accretions originally formed on island property belonging to one owner does not cover the accretions after they reach beyond the property line of another riparian owner. It also decided the Houstons had not discharged their burden of proving adverse possession.

On appeal, a panel of this court affirmed the district court's holding that Gypsum owned the accretion property on the south end of Stack Island but vacated that part of its judgment relating to the adverse possession claim. See Houston v. United States Gypsum Co., 569 F.2d 880 (5th Cir. 1978). After reviewing the evidence of the Houstons' possessory conduct, this court observed, "All this boils down to the inescapable fact that the adverse possession issue was just about as close as it could be." 569 F.2d at 886. However, because the district court had not satisfactorily explicated its decision under Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717 (1951), and McCaughn v. Young, 85 Miss. 277, 37 So. 839 (1905), this court remanded for further consideration of whether the Houstons' conduct was sufficient to ripen title in them, expressly permitting both parties to supplement the existing record. 569 F.2d at 887.

The district court then heard further testimony and received additional documentary evidence concerning the nature, quality, and duration of the Houstons' possession. After a two-day trial, the district court reversed itself and entered judgment for the Houstons, awarding them title to all the disputed accretion property along with $2,996.00 damages for the timber cut by Gypsum in 1972. However, the district court made very few specific factual determinations, and most of those it did make relate only to preliminary or peripheral issues.

The record contains substantial evidence of possessory acts by the Houstons which the district judge must have believed to reach his ultimate conclusion favorable to them. Indeed, with but one exception, Gypsum does not quarrel with what events took place so much as the legal significance of those events.

In particular, the evidence shows that the Houstons have engaged in a pattern of proprietary acts during the twenty or more years preceding their initiating this lawsuit. They have blazed trees, painted boundaries, and posted the island at irregular intervals since 1950, although seasonal flooding of the island and trespassing hunters have often removed any signs they posted. Since 1952 Mr. Houston and employees under his supervision have planted tree sprigs and seedlings on the disputed property, and since 1957 Houston has substantially increased his reforestation efforts using sprigs acquired from the Mississippi Forestry Commission.

The disputed property also has been under a succession of livestock grazing leases from 1957 to 1971, Houston having executed such leases in 1957, 1958, and 1962. Under these grazing leases, Houston's lessees have grazed cattle, goats, and other livestock; marked and maintained boundary lines designated by Houston; and erected fences as deemed necessary.

Furthermore, the record reveals that Houston has personally hunted for deer and duck on the entire island several times each hunting season and has granted written hunting leases covering the disputed property in 1967 and 1970. The lessee under the 1970 lease has formed a hunting club comprised of 20-30 members who cleared trails, planted wheat fields and constructed deer stands, posted four-by-six-foot signs, and hunted on the island every day of each hunting season. Houston has also published newspaper notices prohibiting hunting on the island and taken other steps calculated to limit hunters to persons he selects.

In addition to this pattern of possessory conduct, the Houstons have performed several important individual acts of ownership. In 1954 they executed an oil, gas, and mineral lease which purported to cover Stack Island and "all accretions and riparian rights adjoining or belonging to any part" of it. In 1968 they obtained a decree from the Chancery Court of Issaquena County, Mississippi, against certain adverse claimants in order to remove any clouds on their title to Stack Island. Gypsum was not made a party to this action, was not served, and is not covered by the decree.

More importantly, the Houstons had a direct confrontation with the United States Gypsum Company. In late 1957 Hurricane Audrey blew down some timber on the southern portion of Stack Island. Thinking this timber would be useful for pulpwood, Houston went to Gypsum's Greenville, Mississippi, office and attempted to sell it to Gypsum. Gypsum refused, claiming that it owned the south end of the island and the timber on it. Gypsum then reported the episode to its home office in Chicago, Illinois.

This incident also provoked an exchange of correspondence between lawyers for Houston and for Gypsum. On October 24, 1957, Gypsum sent to Houston's attorney a map on which it had outlined in red ink all the land claimed by it. After consulting with Houston, his attorney returned the map with the land claimed by Houston marked in blue ink. The area encircled by Houston includes all of the property which is the subject of this litigation. After this round of correspondence, the parties had no further...