O'Neal v. Blalock, 2015–CA–01445–COA

• Decision Date: 02 May 2017
• Docket Number: NO. 2015–CA–01445–COA,2015–CA–01445–COA
• Citation: 220 So.3d 234
• Parties: Charles O'NEAL, Appellant v. Tracy Sykes BLALOCK and Robert Allen Sykes, Appellees
• Court: Mississippi Court of Appeals

220 So.3d 234

Charles O'NEAL, Appellant

v.Tracy Sykes BLALOCK and Robert Allen Sykes, Appellees

NO. 2015–CA–01445–COA

Court of Appeals of Mississippi.

May 2, 2017

ATTORNEY FOR APPELLANT: CLARENCE MCDONALD LELAND

ATTORNEYS FOR APPELLEES: RENEE H. BERRY, JOHN T. ARMSTRONG JR.

BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

ISHEE, J., FOR THE COURT:

¶ 1. In December 2013, Tracy Sykes Blalock and Robert Allen Sykes brought suit against Charles O'Neal in the Copiah County Chancery Court to quiet and confirm title in land on which O'Neal was encroaching. O'Neal responded by claiming ownership of the disputed land through adverse possession. Following trial, the chancery court entered a final judgment holding that O'Neal had failed to prove his claim of adverse possession by clear and convincing evidence. O'Neal timely appealed. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 19, 1990, O'Neal purchased approximately 255.8 acres of land in Copiah County. Prior to the completion of O'Neal's purchase, he had the land surveyed by Harold King, a registered land surveyor. O'Neal then had a deed prepared based upon King's survey, which he properly recorded, and to which the King survey was attached. Though this case was initiated on December 23, 2013 by Blalock and Sykes as a complaint to quiet and confirm title, the parties elected to proceed with O'Neal's claim for adverse possession, as it would likely be dispositive to the outcome of the case.

¶ 3. At trial, O'Neal testified that while King performed the survey, he aided by bulldozing a road along the southern boundary of the property. O'Neal further testified that, out of respect for the adjacent landowners, the road was constructed to favor the north side of the southern boundary line surveyed by King. In addition to the dozing of the road, O'Neal stated that at the time of the survey, King also blazed a red, painted line, which was maintained for "years and years." He testified that he personally observed King place each survey pin¹ in every corner of his property, including point 7, which abuts the western right-of-way of Highway 27, and is a primary area of dispute among the parties. O'Neal asserted that he relied entirely on King's placement of the pins for the boundaries of his property, and believed those pins to be within the calls of his deed.

¶ 4. Following the dozing of the road, O'Neal stated that he conducted a variety of acts upon his land, including planting food plots, building a deer stand, hunting, fishing, ATV operation, and inviting others to participate in the same. O'Neal had several different witnesses offer testimony to this effect on his behalf. O'Neal also admitted that while the southern boundary of his property was to follow a due east-west line, unstable terrain and a lake caused his road to deviate from its initially straight course; O'Neal reiterated, however, that he favored the "inside" of his boundary line at all times. No fence was ever built along the southern border surveyed by King.

¶ 5. In 2006, O'Neal founded Copiah Creek Camping and Recreation LLC. The business consisted of charging admission for those seeking to ride ATVs along the road created by O'Neal, including the disputed area, as well as other portions of his acreage. The "tremendous" volume of ATV traffic resulted in the forming of a "mud pit" where the road was once flat. The "mud pit" is a long ditch located below ground level, and the primary area of dispute among the parties, as it sits north of O'Neal's road, but south of the boundary line claimed by Blalock. The "mud pit" also rests east of the "borrow pit," which is the area where O'Neal's road begins its deviation to the south when following the road in a west-to-east path.

¶ 6. Blalock inherited the property directly south of O'Neal's on October 23, 2003. Dale Blalock, Tracy's husband, testified that in 2011, he and O'Neal traversed the property border, west to east, and that O'Neal admitted he was encroaching upon the Blalocks' land at several points. And in May 2013, prior to a timber sale, the Blalocks had Hunter Newman, a registered surveyor, perform a survey of their property. Newman's survey showed the Blalocks claimed a total of 129.97 acres. Newman reviewed the King survey, and determined that of the seven pins allegedly placed by King in 1990, only pins 1, 2, and 4 coincided with Newman's measurements.²

¶ 7. As such, the placement of pins 6 and 7—shown to Newman by O'Neal himself—reflected a southerly encroachment of approximately 122.38 feet onto the Blalocks' land. Newman further testified that for pins 6 and 7 to be accurate, both his and King's surveys would have to be entirely inaccurate at a multitude of other locations, which Newman asserted was highly unlikely. Newman further testified that King made no mention of pins 6 and 7 on his survey, which would be against industry custom if King did in fact set those pins in 1990. Thus, when reviewing the King and Newman surveys together, there were at least two common aspects supporting O'Neal's testimony: (1) that, in general, O'Neal bulldozed a road north of King's southerly survey line; and (2) that his road was not entirely straight.

¶ 8. In addition to testimony regarding his and King's surveys, Newman stated that he relied upon aerial photographs from winter 2006 and summer 2012 to help determine the location of O'Neal's road in the area of dispute. The winter 2006 photograph was of a higher resolution than the summer 2012 photograph, and did not show any such road in the area of dispute, as alleged by O'Neal. In contrast, however, the lower-resolution summer 2012 photograph did show the "mud pit" and road. O'Neal testified that for the twenty-three years he had possessed his land, he had no knowledge of the encroachment before the instant case was filed in December 2013.

¶ 9. Based upon Newman's testimony, the chancellor determined that neither the legal descriptions of the two properties nor the common boundary line was in dispute. Rather, the sole area of relevance pertaining to O'Neal's claim for adverse possession was the 122.38-foot portion of land encroaching on the Blalocks' side of the boundary line—referred to as the "mud pit" and "borrow pit." Finding that O'Neal had failed to prove each essential element of adverse possession by clear and convincing evidence for the portion of disputed land, the chancellor dismissed O'Neal's claim. O'Neal timely perfected his appeal. Finding no error on the part of the chancellor, we affirm.

STANDARD OF REVIEW

¶ 10. "This Court will not disturb the findings of a chancellor unless those findings were manifestly in error, clearly erroneous, or ... the result of the application of an erroneous legal standard." Knight v. Covington Cty. , 27 So.3d 1163, 1167 (¶ 14) (Miss. Ct. App. 2009). "Where there is substantial evidence to support a chancellor's findings, [an appellate c]ourt is without the authority to disturb a chancellor's conclusions, although it might have found otherwise as an original matter." Keener Props. , LLC v. Wilson , 912 So.2d 954, 956 (¶ 3) (Miss. 2005). A chancery court's interpretation and application of law, however, is reviewed under a de novo standard. Id.

DISCUSSION

¶ 11. O'Neal contends on appeal that the chancellor erred in his application of the facts to the law by finding that O'Neal had failed to satisfy his burden of proving adverse possession by clear and convincing evidence. Reviewing the record before this Court, we disagree.

¶ 12. Mississippi Code Annotated section 15–1–13(1) (Rev. 2012) sets forth the following:

(1) 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[.]

¶ 13. Thus, for a claimant to establish title by adverse possession, each of the following six elements must be proven by clear and convincing evidence. "For possession to be adverse it 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." Roberts v. Young's Creek Inv. Inc. , 118 So.3d 665, 669 (¶ 7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong , 904 So.2d 134, 136 (¶ 15) (Miss. 2004) ). The claimant bears the burden of proving adverse possession by clear and convincing evidence. Scott v. Anderson–Tully Co. , 154 So.3d 910, 916 (¶ 14) (Miss. Ct. App. 2015). "Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level." Massey v. Lambert , 84 So.3d 846, 848 (¶ 7) (Miss. Ct. App. 2012) (citation omitted) (citing In re C.B. , 574 So.2d 1369, 1375 (Miss. 1990) ).

1. Under Claim of Ownership

¶ 14. When determining whether an adverse possessor has staked a proper claim of ownership, the relevant inquiry is "whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership." Hill v. Johnson , 27 So.3d 426, 431 (¶ 19) (Miss. Ct. App. 2009) (citing Apperson v. White , 950 So.2d 1113, 1117 (¶ 7) (Miss. Ct. App. 2007) ). "Adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands." Apperson , 950 So.2d at 1117 (¶ 8). As such, "the chancellor must look to the quality and not the quantity of the acts indicative of possession." Id. "A party claiming land by adverse possession ... enclos[ing] the piece of property with a fence is a factor to be considered in determining if adverse possession occurred." Buford v. Logue , 832...