Nosser v. Buford

• Decision Date: 03 December 2002
• Docket Number: No. 2001-CA-01243-COA.,2001-CA-01243-COA.
• Citation: 852 So.2d 57
• Parties: Pete J. NOSSER, III, Daria Nosser Hood, Paul W. Nosser, David J. Nosser and Lee Anne Nosser, Appellants/Cross-Appellees, v. B.P. BUFORD and Buford Partners, L.P. and B.P. Buford and Buford Partners, L.P., Appellees/Cross-Appellants, v. FIRST BANK, Appellee/Cross Appellee.
• Court: Mississippi Court of Appeals

852 So.2d 57

Pete J. NOSSER, III, Daria Nosser Hood, Paul W. Nosser, David J. Nosser and Lee Anne Nosser, Appellants/Cross-Appellees, v. B.P. BUFORD and Buford Partners, L.P. and B.P. Buford and Buford Partners, L.P., Appellees/Cross-Appellants, v. FIRST BANK, Appellee/Cross Appellee.

No. 2001-CA-01243-COA.

Court of Appeals of Mississippi.

December 3, 2002.

Rehearing Denied March 18, 2003.

Certiorari Denied August 7, 2003.

Landman Teller, Jr., W. Briggs Hopson, III, Vicksburg, attorneys for appellants.

Dennis L. Horn, Madison, David M. Sessums, Vicksburg, attorneys for Appellees.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

IRVING, J., for the court.

¶ 1. Pete J. Nosser, III, Daria Nosser Hood, Paul W. Nosser, David J. Nosser and Leigh Ann Nosser (the Nossers) appeal from a final judgment, rendered in the Chancery Court of Warren County by a special chancellor, which (1) dismissed their claim for adverse possession to a tract of land also claimed by B.P. Buford and Buford Partners, L.P. (Buford), and (2) established the boundary line between the Nossers' and Buford's property, including the location of a road as it related to the boundary of the Nossers' and Buford's property. Buford filed a cross-appeal from that portion of the final judgment which dismissed their claim against First Bank for indemnity of any loss suffered as a result of the Nossers' action against them, including the cost of their defense of the Nossers' claim.

¶ 2. The Nossers assert that the trial court erred in finding that they failed to establish their claim of adverse possession, in finding that B.P. Buford was not precluded from asserting legal title to the disputed tract, and in accepting inferior evidence for the establishment of the location of Freeman Road, a road common to both the Nossers' and Buford's property.

¶ 3. Buford assigns error to the trial court in excluding evidence of the Nossers' recognition of First Bank's superior title, in excluding evidence of the Nossers' attempt to purchase the disputed property from First Bank, in excluding the testimony of William Shappley, a Vicksburg attorney, and in dismissing their claim for indemnity against First Bank.

¶ 4. Finding no error, we affirm the trial court on both the direct and cross-appeal.

FACTS

¶ 5. The Estate of Pete J. Nosser, Jr., by its executors, Ouida W. Nosser and Pete J. Nosser, III, and the Pete J. Nosser Testatmentary Trust, by its trustee, Ouida W. Nosser, filed in the Chancery Court of Warren County a petition to remove a cloud on their title by Buford and to confirm title in them to a 2.1 acre tract of land.¹ The Nossers claimed record title as well as title by adverse possession. Alternatively, they sought a judgment against Buford, under the theory of unjust enrichment, for improvements they had allegedly made to the property. Buford answered the Nossers' complaint, denied the material allegations of the complaint regarding the Nossers' claim of ownership by record title and by adverse possession, and counterclaimed for confirmation and quieting of their title against the Nossers.

¶ 6. After being sued by the Nossers, Buford demanded that First Bank, their predecessor in title, provide them a defense to the Nossers' lawsuit and indemnify them for any loss suffered as a result of the Nossers' lawsuit. First Bank responded by filing an action against Buford for a declaratory judgment that First Bank owed Buford neither a defense to the Nossers' action nor an indemnification for any loss occasioned by the Nossers' suit. The First Bank action was consolidated with the Nosser/Buford action.

¶ 7. Prior to 1981, W.J. Runyon Jr. was the owner of all of the land in controversy. On June 8, 1981, Runyon executed a deed of trust to First Bank of Southwest Mississippi (predecessor of First Bank). The Runyon/First Bank conveyance involved three parcels of land all having metes and bounds descriptions. A portion of the western boundary of the first parcel was described as the center line of old Freeman Road.

¶ 8. On July 30, 1981, Runyon conveyed the following parcel of land to Pete J. Nosser, Jr.:

Part of Section 5, Township 16 North, Range 4 East, Warren County, Mississippi, described as beginning at a point on the East right of way line of Highway No. 61 Bypass, at Station 156 + 00 of the East lane of said Highway, thence along the right of way turn out to Station 2 12.3 of Bowie Road North 21 degrees 24 minutes East, 234.5 feet to the South right of way line of said Bowie Road, thence North 89 degrees 23 minutes East, 300.0 feet to Station 5 + 12.3 of said road, thence leave said right of way and run South 16 degrees 00 minutes West, 300.0 feet, thence South 987 degrees 32 minutes West, 304.7 feet to the East right of way line of said Highway 61 Bypass East Lane at Station 155 + 20 of said Highway, thence along said right of way line North 01 degree 07 minutes East, 80.0 feet to the point of beginning, containing 2.1 acres.

¶ 9. First Bank foreclosed its deed of trust, thereby acquiring title to all land described in the Runyon/First Bank deed of trust. Title was acquired by a corrected trustee's deed, dated November 15, 1988. On December 10, 1996, First Bank executed a special warranty deed to B.P. Buford conveying to him all of the property acquired by First Bank pursuant to the trustee's deed for the foreclosed Runyon/First Bank deed of trust. On January 16, 1998, B.P. Buford conveyed the same property to Buford Partners, L.P., a limited partnership.

¶ 10. After a hearing on the merits of the Nossers' complaint, Buford's counterclaim and First Bank's complaint for a declaratory judgment, the special chancellor (1) dismissed with prejudice the Nossers' claim for adverse possession of the subject property and their claim for unjust enrichment, (2) established the location of Freeman Road, with respect to the Buford's property and the boundary line between Buford's and the Nossers' property, as designated and set forth in the 1997 plat of Gee and Strickland, Inc., (3) granted First Bank a declaratory judgment that it owed Buford neither a defense against the Nossers' claim nor indemnity for any loss which Buford might suffer as a result of the Nossers' action, and (4) dismissed with prejudice Buford's counterclaim against the Nossers.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. This Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong or applied an erroneous legal standard. Morgan v. West, 812 So.2d 987, 990(¶ 7) (Miss.2002) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). In matters that are questions of law, this Court employs a de novo standard of review and will reverse only for an erroneous interpretation or application of the law. Id. at 990(¶ 8) (citing Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)).

Adverse Possession

¶ 12. The Nossers first allege that the trial court incorrectly applied Mississippi adverse possession law as it pertains to the facts of this case. In order to establish adverse possession, the claimant must show that the possession was: "(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." Robertson v. Dombroski, 678 So.2d 637, 642 (Miss.1996) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met. Id.

¶ 13. The principle is accepted that both the quality and quantity of possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). Adverse possession of unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. Id. at 90 (citing Kayser v. Dixon, 309 So.2d 526, 529 (Miss.1975); McCaughn v. Young, 85 Miss. 277, 292-293, 37 So. 839, 842 (1905)). The question in the end 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 upon notice that the lands are held under an adverse claim of ownership. Id. at 90-91, 37 So. 839 (citing Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 687, 16 So.2d 24, 25 (1943)).

¶ 14. The Nossers argue that their acts of hunting, cutting firewood, removing dirt, paying taxes, and giving permission to political candidates to place signs on the property were sufficient acts to demonstrate the Nossers' actual control of the property. In 1993, the Nossers conducted major leveling operations on the land. From 1993 through 1996, several newspaper articles were published in The Vickburg Post, a local newspaper, concerning the Nossers' planned building operations. The Nossers assert that the character and duration of these acts demonstrate they should prevail on their adverse possession claim.

¶ 15. After carefully analyzing the Nossers' acts of adverse possession and the qualities and characteristics of those acts, the chancellor found that the Nossers' sporadic cutting of firewood by members and others on unspecified dates, their shoveling of dirt and its removal by pickup truck on unspecified dates, bush hogging on unspecified dates in unspecified areas, squirrel hunting by Rusty Nosser numerous times from 1982 to 1984 and by David Nosser five or six times a year from mid-October to mid-November of 1981 through 1985, and the Nossers' granting of permission for election signs to be placed on the land in election years were not sufficient acts to constitute adverse, hostile, open, notorious, visible, continuing and exclusive possession contemplated by statute. The...