Rawls v. Parker

• Decision Date: 03 June 1992
• Docket Number: No. 90-CA-0099,90-CA-0099
• Citation: 602 So.2d 1164
• Parties: Geraldine RAWLS v. William PARKER.
• Court: Mississippi Supreme Court

Page 1164

602 So.2d 1164

Geraldine RAWLS v. William PARKER.

No. 90-CA-0099.

Supreme Court of Mississippi.

June 3, 1992.

Thomas J. Lowe, Jr., Jackson, for appellant.

Christopher A. Tabb, Brandon, for appellee.

Before DAN M. LEE, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

Appellant Geraldine Rawls filed a complaint in the Chancery Court of Rankin County on September 13, 1988, seeking injunctive relief and confirmation of title. She contended that William Parker, who resided directly north of her land, had encroached upon the northern edge of her property by erecting a fence, planting a garden, and dumping various items of refuse. Parker maintained that the fence, the garden, and the trash all lie within his own boundaries. Alternatively, Parker asserted that he had obtained title to the disputed strip of land by adverse possession. The chancellor found for the defendant. On appeal, Rawls assigns the following as error:

I. The chancellor erred in finding that Parker had met the burden of proof required for establishing a claim of adverse possession.

II. The chancellor's adoption of Exhibit D-2 as the correct survey was against the overwhelming weight of the evidence.

We affirm the learned chancellor's decision, although we find his reasoning in part erroneous.

FACTS

Appellant Rawls holds title to the following tract of land:

A certain parcel of land situated in the NE 1/4 of the SW 1/4 of Section 6, Township 3 North, Range 5 East, Rankin County, Mississippi and being more particularly being described as follows:

Commencing at the Southeast corner of the Southwest 1/4 of the Northeast 1/4 of Section 6, Township 3 North, Range 5 East, run thence South 89 degrees 54 minutes 36 seconds west for a distance of 1350.04 feet to a point on the West side of Fletcher Road and the POINT OF BEGINNING of the herein described parcel of land; from said POINT OF BEGINNING run thence South 02 degrees 47 minutes 15 seconds West along the West side of said Fletcher road for a distance of 44.06 feet to a point on the North right of way of Mississippi State Highway No. 18; run thence along said North right of way the following bearings and distances, North 66 degrees 15 minutes 30 seconds West 13.23 feet; South 23 degrees 44 minutes 30 seconds West 40 feet; North 89 degrees 13 minutes 02 seconds West 340.57 feet; North 57 degrees 47 minutes 22 seconds West 131.12 feet; leaving said North right of way of Mississippi State Highway No. 18 run thence North 89 degrees 54 minutes 37 seconds East for a distance of 481.84 feet to the POINT OF BEGINNING containing 30094.32 square feet or 0.6909 acres more or less.

Parker holds record title to the following tract which is situated north of and adjacent to Rawls' land:

Beginning at the Southeast corner of the East half (E- 1/2) of SE 1/4 of NW 1/4, Section 6, Township 3 North, Range 5 East, and run thence west 417 feet to a point, thence north 209 feet to a point thence east 417 feet to a point, thence south 209 feet to a point of beginning, and containing 2 acres, more or less, and all being in the East half (E- 1/2) of SE 1/4 of NW 1/4, Section 6, Township 3 North, Range 5 East.

The legal descriptions of these two properties are not in dispute. The conflict, rather, arises over the actual position of the boundary line which separates them.

Two surveys were introduced at trial, one prepared by Homer Lang, a registered land surveyor and vice president of Reynolds Engineering Company in Jackson, and another prepared by Cecil Dawkins, a registered land surveyor employed with Rankin County Engineers. Rawls retained Mr. Lang and Parker retained Mr. Dawkins.

Mr. Lang defended his survey by explaining that after finding the Highway Department's Mr. Lang also verified Rawls' property line by tying it to another corner, ascertained by a Mr. Hunt, who found an established or accepted quarter corner approximately half a mile to the east of the property. This corner was marked as a 12-inch pine post at the southeast corner of the SW 1/4 of the NE 1/4, Section 6, Township 3 North, Range 5 East, Rankin County, MS.

right-of-way monuments, ¹ he then tied the monuments to the Highway Department's survey and pushed the quarter section line west of the highway for approximately a quarter mile to the fence corners.

After verifying the two quarter corner sections, Mr. Lang verified the section as a whole and then tied that to a recognized government corner. He tied all of the traverses to the SW corner of Section 6 or what he believed to be the SW corner of Section 6. Additionally, Lang consulted records or field notes contained in the Secretary of State's Office in order to verify that corner. After testifying that Section 6 was not a true or perfect section, he then stated that based upon his experience, the survey was a true and accurate one of the property belonging to Geraldine Rawls as contained in her original deed, less and except what she conveyed to the State Highway Commission.

Dawkins previously had made surveys of Section 6, Township 3, Range 5 East, in both the north and south half for Rawls and for her father in the past. Mr. Dawkins testified that he began at a pine knot at a fence corner which is generally accepted in the area as being the SW corner of Section 6. This point of beginning had been pointed out to him by many of the old residents of that community as being the SW corner of Section 6. Physical evidence found, as to the location of Section 6, included the pine knot and an old fence running east and west. He also testified that between his survey and the survey that Rawls' surveyors did, that there was essentially about 55 feet in dispute.

According to Rawls, the property in question was a part of her old homeplace, and the line of possession had always been considered a barbed wire fence. An additional marker included a family store/cafe which aligned the fence. Neither the home, store nor barbed wire fence are in existence today.

Clarence Howard, Rawls' brother-in-law, testified that he remembered the store/cafe and that Parker's garden was south of the store's prior location. Mr. Ulos Anderson, first cousin to Rawls and brother-in-law to Parker, testified that when he conveyed his property in 1969, the fence was considered the property line and he did not intend to convey anything south of the fence. He also stated that the fence was more than ten feet north of the cafe.

Rev. William H. Parker testified for the defense and stated that Parker had been claiming down to that line for the past 25 years and that he had a number of appliances, a tractor, and other objects on the land. Although familiar with the new fence that Parker erected, he could not say whether the old store was north or south of it.

Ethel Parker, defendant's wife, testified that the half section line had divided the properties since the 1940s. Additionally, she stated that when the Highway Department bought the land from Rawls, the old fence was pushed away and the new fence was placed on the same line as the old boundary fence.

Mr. William Parker testified that the new fence was on the half section line and he had used this land since 1969. His use consisted of keeping a deep freezer, a washing machine, tractors and tractor parts on the land.

The chancellor rendered judgment on January 3, 1990, and opined as follows:

THE COURT: All right. In cases of this nature there is always conflicting testimony and disputes about property lines. As a matter of fact, this case To the contrary, the defendant, William Parker, resides upon the property adjoining that of plaintiff's to the north and has so resided for many years, at least by the testimony more than ten years. The variance in testimony, if any, is as to the time that the defendant has claimed the line where the fence now is directed as opposed to that of the plaintiff.

would not be in this court if the parties, in fact, could agree upon a single line as being a property line. The Court is left in most all cases of this nature with believing the witnesses on one side as opposed to the witnesses on the other, whichever side that may be. In this case, the testimony has been, in some instances, diametrically opposed in favor of the plaintiff as opposed to the defendant and vice versa. The plaintiff acquired her title to the property from her brothers and sisters and, as the Court recalls from the testimony, there is no home site on that property at this time and the plaintiff does not reside upon the property which she claims.

In cases of this nature, the Court does not always accuse the witnesses on one side of lying but rather of having a story by their testimony which matches their recollection. In other words, the witnesses for Ms. Rawls may, in fact, truly believe and recall that a line was at the point that they have testified about. I must say that the testimony of all the witnesses differed to some degree, even that between the defendant and his wife. Mr. Ulos Anderson, who testified in the first half of this hearing, testified that a fence was at one time in place a few feet from a store, shop, or cafe, which has now been removed.

The Court believes Mr. Anderson's testimony, but his testimony was in conflict with that of other witnesses. Mr. Anderson does not now live upon the property. The only person who now lives on the property, or person, are William Parker and his wife, Ethel. They testified that for many years, and at least for more than ten years, they have placed items of personal property, which I'll refer to as junk or stuff, on the land north of the fence now in dispute.

Although Mr. Parker may have enlarged his garden or even moved it, the Court believes that he has occupied his land by cultivating a garden and placing property thereon in open view of all parties who would be adversely affected thereby. The Court is strongly inclined to believe the testimony of William Parker and his wife as to...