Simmons v. Cleveland
| Decision Date | 27 July 1999 |
| Docket Number | No. 98-CA-00375-COA.,98-CA-00375-COA. |
| Parties | Alberta SIMMONS, Appellant, v. Josephine S. CLEVELAND, Appellee. |
| Court | Mississippi Court of Appeals |
Joe Vandyke, Sardis, Attorney for Appellant.
James McClure, III, Sardis, Attorney for Appellee.
BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.
LEE, J., for the Court:
¶ 1. This appeal regards a property line dispute between neighbors, Alberta Simmons and Josephine Cleveland, in a subdivision in the town of Como. The Panola County Chancery Court ordered that the property lines be consistent with Cleveland's survey, and Simmons appeals the judgment rendered against her raising the following issues:
¶ 2. We find that the chancellor was within his discretion in establishing the boundary in accordance with a survey which disregarded physical monuments; however, we find that the trial court was in error in its refusal to consider proof offered to establish adverse possession. Therefore, we reverse and remand.
FACTS
¶ 3. Alberta Simmons and Josephine Cleveland lived in the Pointer Subdivision in the town of Como and had been neighbors since May 1965, sharing a property boundary. In reliance on their undisputed testimony, sparks began to fly between Simmons and Cleveland, and Simmons erected a wooden fence in 1995 adjacent to her driveway between her property and that of Cleveland. The fence ran the entire length of the lot.
¶ 4. Simmons indicated that she did not seek the permission of Cleveland to erect the fence, as she understood it to be located inside of her own property line. Cleveland objected to the placement of the fence and subsequently hired a surveyor to determine the exact location of her property line. In preparation for litigation, Simmons also engaged the services of a surveyor. Neither parties' warranty deeds contained a metes and bounds description of their respective lots, but referenced the official map and plat of the Pointer Subdivision.
¶ 5. The surveyors's results were in disagreement. Cleveland's surveyor stated that the fence was over the property line into Cleveland's side by four feet throughout the length of the fence. Simmons's surveyor likewise stated that the fence encroached upon Cleveland's property, but only by a distance of approximately one foot at the front of the lots. The fence then crossed the property line, making a long, thin "x" approximately mid-length the fence, and was actually located on the Simmons side of the line at the back of the lot.
¶ 6. The testimony of the parties indicated that they were in agreement that the corner of a neighbor's fence that adjoined the disputed properties at the rear actually defined the common back corner of their lots. Both parties also testified that Simmons's driveway had been located in essentially the same place for over twenty years, without the objection of Cleveland. Cleveland's survey, however, established the line to be several feet into the pavement of Simmons's driveway and about two feet from Simmons's house.
¶ 7. Testimony was presented which revealed the differing procedures utilized by the surveyors in arriving at their respective conclusions regarding the location of the boundary line of the two lots. The surveyors began their respective surveys from different points in the subdivision. Also, Simmons's surveyor relied on a particular marker at the rear of their lots, which both parties agreed defined the common back corner of their respective lots, in arriving at his result, whereas Cleveland's surveyor did not utilize this monument in ascertaining the boundary in his survey. Though the parties agreed on the location of the common back corner of their lots, Simmons assertion on appeal that Cleveland's surveyor testified that he too agreed that that marker indicated the back corner of the lots is incorrect. His testimony was incorrectly interpreted by the appellant as referring to the common back corner of the lots in question. This testimony, however, referred to the southwest front corner of Cleveland's lot, which is not even the corner adjacent to Simmons's property. Nevertheless, the testimony of both Simmons and Cleveland was consistent that the back corner of the new wooden fence erected by Simmons was on Simmons's side of the marker agreed by them to define the common back corner of their property.
¶ 8. In taking all the testimony and evidence into account, the court deferred to Cleveland's survey, divesting Simmons of 714.6 square feet of her property, which includes a portion of her driveway that she had used for twenty years. Also, during the trial, Simmons brought forth a motion, ore tenus, to conform the pleadings to the allegations of adverse possession. At the end of the presentation of testimony, the court ruled that there would be no consideration as to adverse possession. Simmons thus appeals the trial court's decision on the foregoing assertions of error.
LAW
¶ 9. This Court's scope of review requires the application of the substantial evidence/manifest error test to questions of fact. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). As the court in Johnson stated:
It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact. Our scope of review is severely limited.... Suffice it to say that we have no authority to grant appellant any relief if there be substantial credible evidence in the record undergirding the determinative findings of fact made in the chancery court.
Johnson, 469 So.2d at 90 (citations omitted). This standard of review is also enunciated in Travis v. Hartford Accident & Indem. Co., 630 So.2d 337, 338 (Miss.1993) (quoting Richardson v. Riley, 355 So.2d 667 (Miss.1978)):
The principle of law with which we are concerned has been repeated by this Court many times. It is that where the chancellor was the trier of facts, his findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor's findings unless manifestly wrong, as stated above.
¶ 10. With questions of law, the scope of review is de novo. Planters Bank & Trust Company v. Sklar, 555 So.2d 1024, 1028 (Miss.1990).
¶ 11. Simmons argues that it was error to establish the boundary between the properties in accordance with a survey which disregarded any reference to physical monuments. She does not, however, cite authority for this argument. Therefore, consideration of this argument on appeal is precluded. See Grey v. Grey, 638 So.2d 488, 491 (Miss.1994) (citing Estate of Mason, 616 So.2d 322, 327 (Miss.1993)); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988); Shive v. State, 507 So.2d 898 (Miss. 1987); Pate v. State, 419 So.2d 1324 (Miss. 1982). Furthermore, even if Simmons were not barred from raising this issue, the argument would fail on its merits.
¶ 12. Simmons bases this point of her appeal on the reliability of her own survey and the trial court's disregard of the existing physical monuments evidencing the correct location of the parties's common boundary line. The chancellor stated that he based his decision to rely on Cleveland's survey as opposed to Simmons's survey on the credibility of the surveyors' testimony at trial as experts in their field. He noted that Cleveland's surveyor was very familiar with the Pointer Subdivision, having surveyed lots in that neighborhood at least fifteen times over the years, whereas Simmons's surveyor had never conducted a survey in the Pointer Subdivision before. Cleveland's surveyor therefore had the benefit of information he had accumulated during the previous surveys at his disposal in determining the location of points referred to in the plat. There was much testimony regarding the two surveys by the two engineers who actually surveyed the property. The chancellor stated that most of the consideration he gave in determining the property line came from this evidence. He expressly recognized both surveys. Simmons makes quite a fuss in comparing the two surveys; however, after applying the substantial evidence/manifest error test, stated in Johnson, 469 So.2d at 90, we hold that the record shows that substantial credible evidence exists supporting the chancellor's judgment of this issue, so that the decision was not manifestly erroneous. The surveys were made by two registered land surveyors, and it was within the chancellor's purview to recognize one survey and reject the other. We therefore find that the trial court has committed no error on this issue.
¶ 13. At the end of the presentation of evidence in this case, the court made its ruling from the bench, recognizing that Simmons had brought forth a motion, ore tenus, to conform the pleadings to the allegations of adverse possession offered into the record. The court then stated that "there will be no consideration as to adverse possession at all," reasoning that such a holding requires proof in great detail. While it is correct that the standard to establish title by adverse possession in Mississippi is by clear and convincing evidence, ...
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