Lynn v. Soterra Inc., 2000-CA-00785-COA.

• Decision Date: 18 December 2001
• Docket Number: No. 2000-CA-00785-COA.,2000-CA-00785-COA.
• Citation: 802 So.2d 162
• Parties: William Paul LYNN and Stephanie Lynn, Appellants v. SOTERRA INCORPORATED, B.P. Buford and Buford Partners, L.P., Appellees.
• Court: Mississippi Court of Appeals

802 So.2d 162

William Paul LYNN and Stephanie Lynn, Appellants v. SOTERRA INCORPORATED, B.P. Buford and Buford Partners, L.P., Appellees.

No. 2000-CA-00785-COA.

Court of Appeals of Mississippi.

December 18, 2001.

Marcie Tanner Southerland, Vicksburg, Attorney for Appellants.

Robert R. Bailess, Vicksburg, Attorney for Appellees.

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

SOUTHWICK, P.J., for the Court.

¶ 1. This is a real property boundary dispute. The chancellor could not determine from conflicting deed descriptions and surveys who had record title, but he found that lengthy possession gave the current occupant of the property clear title regardless of the descriptions in the deeds. We find no error in the chancellor's factual determination regarding possession, the removal of clouds on the title, his award of damages to the property owner, or in his denial of damages to the party who was found not to have title. We therefore affirm.

STATEMENT OF FACTS

¶ 2. The southern boundary of property in rural Warren County that is owned by William Paul Lynn and his wife Stephanie is the northern border of parcels owned by Soterra, Inc., B.P. Buford individually and Buford Partners. The disputed tract encompasses 2.09 acres. It is a narrow strip along this boundary and has for many years been used by Soterra, Buford, and their predecessors in title as a road for their primary means of egress and ingress. The road was built in about 1971, improved by Buford in 1994, and is now surfaced with clay, gravel and crushed asphalt. Thus this suit involves the ownership of the strip on which the road is located.

¶ 3. In 1940, all the relevant property was under the common ownership of the Hyland family. In 1943, a member of the Hyland family conveyed a portion of the land. Through later conveyances, that property became owned by Donald K. Buford in 1989, who conveyed it to B.P. Buford in 1996, who deeded some of the land to Soterra in 1997 and another part to Buford Partners in 1998.

¶ 4. In 1977 another Hyland family member sold the remaining portion of the relevant land. After various deeds, the property became owned by John Bowen. In 1998, Lynn purchased approximately 182.17 acres of land from Bowen, having first leased the land for a year. Prior to the purchase, Lynn had the property surveyed. This survey purported to show the boundaries of his property as including the disputed 2.09 acres. Lynn's seller, Bowen, testified that before conveying the property, he told Lynn about Soterra's claim of ownership.

¶ 5. In sum, Lynn and his predecessors own the northern portion of the land formerly in the Hyland family, while Buford and Soterra own the southern portion. The disputed road is in between.

¶ 6. The road is Buford's main route of access to property from which he excavates and sells what he calls "buckshot clay." Shortly after his 1998 purchase of the property, Lynn blocked the road and asserted ownership. Soterra and Buford brought suit and gained a temporary restraining order requiring Lynn to cease blocking the road. This TRO was extended first by the trial court and subsequently by agreement. Despite the agreement, Lynn later again blocked the road by erecting a barrier. A preliminary injunction was then issued against Lynn in June 1999, prohibiting him from interfering with the use of the road until the issue could be adjudicated on the merits. After a trial in September 1999, Buford and Soterra received most of the relief that they sought. Final judgment was entered December 30, 1999, and Lynn has appealed.

DISCUSSION

I. Record Title.

¶ 7. The chancellor did not adjudicate which party held record title to the disputed acreage. The court found that the surveys were conflicting. Preparatory to any decision as to what property was covered by each deed, another survey would need to be made. The chancellor determined, though, that resolving that issue would be academic. He found clear possession in Soterra and Buford, sufficient to constitute adverse possession if Lynn actually had record title, and sufficient to defeat any one else's adverse claim if Soterra and Buford had record title.

¶ 8. We hold that declining to make findings as to record title was acceptable, provided the chancellor properly determined the factual and legal issues of possession. We turn to those next.

II. Adverse Possession.

¶ 9. Lynn challenges the fact-finding that if Soterra and Buford did not have record title, they at least would have acquired the 2.09 acres through adverse possession. Those fact-findings will be upheld on appeal "unless the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard." Goode v. Village of Woodgreen Homeowners Ass'n, 662 So.2d 1064, 1070 (Miss.1995). We start our review with the legal standard.

¶ 10. Adverse possession of real property for ten years perfects title in the possessor, excepting against the claims of minors and those who are not mentally competent. Miss.Code Ann. § 15-1-13 (Supp.2001). The possession must be (1) under a claim of ownership; (2) hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted; (5) exclusive; and (6) peaceful. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992). The person claiming the possession has the burden of proving each of these elements by clear and convincing evidence. Id.

¶ 11. Lynn readily admits that Soterra and Buford's use of the disputed property was open, notorious and visible. This is evidenced by testimony that trucks and other equipment used or serviced by Soterra, Buford and their predecessors commonly traveled the road on the disputed land. Lynn asserts however that none of the remaining elements were adequately established.

¶ 12. We look at the claims to ownership first. There is evidence that those in Lynn's chain of title did not claim title for themselves. Bowen, Lynn's immediate predecessor, testified that for fifteen years he assumed that his property boundary was the north line of the disputed tract, whereas Lynn is now claiming the south line. In 1986, Bowen dug a ditch along what he thought was his southern boundary, which caused the ditch basically to become the northern boundary of the 2.09 acres. Therefore there was no claim of ownership by Lynn's immediate predecessor.

¶ 13. The claims of ownership in Soterra and Buford's chain of title were described by B.P. Buford. Buford testified that it was commonly known that the property in question belonged to his family and his ownership had not been contested since he purchased the property in 1989. Buford's grantor, German Jordan, testified that from 1977 until Buford acquired the property in 1989, that he claimed the disputed tract. It was not until 1998 when Lynn purchased the land, that Soterra and Buford's ownership of the disputed territory was called into question.

¶ 14. The next factor is the hostile nature of the claim. Hostility means an assertion of title superior to the potential competing claims of anyone else; it can be rebutted by showing that the actual record title owner gave permission to begin the possession. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1153 (Miss. 1992). A question can arise of whether the party claiming possession must affirmatively prove a negative by clear and convincing evidence, namely, that the possession had been without permission. This Court has concluded that to require "a litigant who is attempting to establish adverse possession or a prescriptive easement to prove that there was no permission for use would be unreasonable." Morris v. W.R. Fairchild Constr. Co., Ltd., 792 So.2d 282, 285 (Miss.Ct.App.2001). In addition, the Morris Court stated this:

"[W]here the subject-matter of an negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party." When a negative is averred in pleading, or plaintiff's case depends on the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or upon his failure to do so, we must presume it does not exist, which of itself establishes a negative.

Morris, 792 So.2d at 285 (quoting United States v. Denver & Rio Grande R.R., 191 U.S. 84, 92, 24 S.Ct. 33, 48 L.Ed. 106 (1903)).

¶ 15. Lynn asserts that the element of hostility has not been proven by clear and convincing evidence, but fails to state in what manner Soterra and Buford dropped that burden. Although the issue of permission is not raised in Lynn's brief to the court, it is the only theory that occurs to us that might create a factual issue in this case on hostility. Here, the road was improved and maintained by Buford. At trial, Buford addressed both hostility and the next issue, which is exclusivity:

Q: And were you the only one that used the road during the time that you've had ownership of the property?

A: They had—while I owned the property, I let anyone that wanted to go back there and use it.

Q: At any time did you ever have a conversation with John Bowen pretty much saying, you know, I'm going to use this road if you don't have a problem with that? In other words getting his permission to use the road?

A: No, ma'am, I didn't have to get his permission, because it was on my deed that I owned it.

¶ 16. We find that the issue of permission was addressed, that no contrary evidence of permission was introduced, and that Soterra and Buford carried their burden on the question of hostility.

¶ 17. Exclusive use is the next point. Lynn alleges that...