Sturdivant v. Todd, 2005-CA-01937-COA.

• Decision Date: 06 February 2007
• Docket Number: No. 2005-CA-01937-COA.,2005-CA-01937-COA.
• Citation: 956 So.2d 977
• Parties: B. Sykes STURDIVANT, David Jackson and Kelly Greenwood, Appellants, v. Brenda D. TODD, Terry O. Todd, James Newton and Chessie Denley, Appellees.
• Court: Mississippi Court of Appeals

956 So.2d 977

B. Sykes STURDIVANT, David Jackson and Kelly Greenwood, Appellants, v. Brenda D. TODD, Terry O. Todd, James Newton and Chessie Denley, Appellees.

No. 2005-CA-01937-COA.

Court of Appeals of Mississippi.

February 6, 2007.

Rehearing Denied May 29, 2007.

James Walker Sturdivant, Greenville, attorney for appellants.

Alison Oliver Kelly, attorney for appellees.

Before MYERS, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Brenda D. Todd, Terry O. Todd (the Todds), James Newton, and Chessie Denley filed a complaint to establish three claims of title by adverse possession against B. Sykes Sturdivant, David Jackson, and Kelly Greenwood (collectively, Sturdivant). The complaint asserted that the Todds, Newton, and Denley each had acquired fee simple title to separate portions of land situated in Tallahatchie County through adverse possession. After a hearing, the Chancery Court of Tallahatchie County found that the plaintiffs had proven the elements of adverse possession. Sturdivant has appealed, arguing (1) that eleven of the chancellor's fact-findings were unsupported by substantial evidence; (2) that the chancellor's decision was manifestly erroneous because the plaintiffs had failed to prove the elements of adverse possession by clear and convincing evidence; and (3) that, if this Court affirms the adverse possession finding, Sturdivant is entitled to a prescriptive easement across the adversely possessed land.

¶ 2. We find that the chancellor's decision was supported by substantial evidence and was not manifestly erroneous. Therefore, we affirm.

FACTS

¶ 3. This case concerns several parcels of land located along Mississippi Highway 35 approximately three miles south of Charleston, Mississippi. In that area, Highway 35 runs roughly north-south. By warranty deed dated August 17, 2004, Sturdivant, Jackson, and Greenwood purchased from Ray Carroll and Larry Joe Lindley an approximately 267 acre parcel of land including the east half of Section 10, Township 24 North, Range 2 East in Tallahatchie County, less and except certain properties listed in the deed. Greenwood testified that the properties excepted from the purchase fronted the east side of Highway 35. The excepted properties included three parcels situated in a row on Highway 35; the northernmost of these parcels was a 1.2 acre parcel owned by Brenda and Terry Todd, south of the Todd parcel was a one-acre parcel owned by Chessie Denley, and south of the Denley parcel was a parcel owned by Jim Newton. The Todds, Denley, and Newton all had their residences on their respective frontage properties. Newton also owned an approximately 5.5 acre parcel of unimproved land that bordered the rear of his frontage property and the rear of Denley's frontage property. Thus, the Todds, Denley, and Newton each owned property fronting the east side of Highway 35, and Sturdivant owned a large area behind the three properties.

¶ 4. Greenwood, a registered professional land surveyor, performed a survey dated January 14, 2005, of a part of the 267 acre parcel. In performing the survey, Greenwood surveyed several properties excepted from the deed in order to obtain the boundaries of his larger parcel. Greenwood surveyed the Todd, Denley, and Newton properties. At some point, Greenwood discovered that, according to the calls of the deeds, there was a gap between the Todd and Denley properties. That gap constituted an approximately three-acre parcel of highway frontage property that was not excepted from Sturdivant's deed and thus was owned by Sturdivant. Greenwood's survey indicates that the three-acre parcel has 108.66 feet of highway frontage between the Todd and Denley properties. The three-acre parcel extends east between the Todd and Denley properties, and, beyond the Denley property, extends further east between the Todd property and Newton's 5.5 acre parcel. Greenwood testified that Sturdivant planned to use the three-acre parcel to build a driveway leading from Highway 35 to a planned cabin to be located on his 267 acre parcel.

¶ 5. Subsequent to Greenwood's discovery, the Todds, Denley, and Newton filed a complaint alleging that they each had adversely possessed portions of the approximately three-acre parcel. The Todds and Denley testified that, for the duration of their ownership, they believed their properties shared a common north-south boundary line marked by a ditch running along the boundary line. This ditch is located on the three-acre parcel. Terry Todd testified that he believed his property extended north from the ditch to a two inch iron pipe located in the ground. Denley also contended that the northeast corner of her property was a one and one-half inch iron pipe located in the ground. Denley bought her one-acre parcel in 1999 from John Malcolm Brooks. William Clinton Brooks testified that his mother had bought the property in 1970 or 1971, and that his brother, John Malcolm Brooks, had inherited the property from his mother and sold it to Denley. William Clinton Brooks testified that, for the duration of the Brooks family's ownership, they had considered the northern boundary line of their property to be the ditch. Newton testified that he also had believed the Todd property formed a boundary with the Denley property.

¶ 6. Newton testified that he and his wife had bought the 5.5 acre parcel of land behind his house in 1983 from Floyd Brown, a predecessor in title to the 267 acre parcel.¹ In 1983, Brown owned the east half of Section 10, Township 24 North, Range 2 East in Tallahatchie County, less and except the specified highway frontage properties. Brown sold Newton a portion of this property. Newton testified about the purchase. Joe Murphy owned a frontage parcel south of Newton. Newton testified that he told Brown that he wanted to buy land from him "all the way to the Todd line to the north and Murphy to the south." Newton testified that he and Brown walked east from the southeast corner of the Murphy property as far as Newton wanted to go. At that location, he and Brown placed an iron pipe. Then, they walked north toward the Todd property and placed an angle iron at the Todd boundary line. Next, he and Brown took measurements from the existing property lines to the monuments and then instructed a lawyer to draft a deed to Newton with a legal description of the property that specified the boundaries marked by the monuments they had placed. Newton testified that he understood that those monuments marked the boundaries of the property Brown was selling to him. In 1986, Newton's wife, Janice M. Newton, conveyed all of her interest in the property to Newton through a quitclaim deed. Newton testified that, for the duration of his ownership of the 5.5 acre parcel, he believed that the 5.5 acre parcel bounded the Todds on the north. Terry Smith, a registered professional land surveyor, testified that he located the monuments described by Newton, but that the monuments did not match the calls of Newton's deed.

¶ 7. The chancellor viewed the property on the day of the hearing. The chancellor found from his view of the property and from the testimony that the Todds, Denley, and Newton had proven by clear and convincing evidence every element of adverse possession. The chancellor ordered the plaintiffs to obtain a survey and legal description of the adversely possessed property. On October 21, 2005, the court entered a final decree setting out the new legal descriptions of each parcel owned by the respective plaintiffs.

¶ 8. Further facts are adduced below. Since this appeal involves three claims of adverse possession against Sturdivant, when necessary for clarity, we will refer to the property disputed between Sturdivant and the Todds as the Sturdivant-Todd disputed property, to that disputed between Sturdivant and Denley as the Sturdivant-Denley disputed property, and to that disputed between Sturdivant and Newton as the Sturdivant-Newton disputed property.

STANDARD OF REVIEW

¶ 9. This Court adheres to a limited standard of review of the decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss.2004). We will reverse only when the chancellor's determinations were manifestly wrong or clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. A finding that the proof was sufficient to sustain a claim of adverse possession is a fact-finding that requires our application of the substantial evidence/manifest error test. Walker v. Murphree, 722 So.2d 1277, 1280(¶ 15) (Miss.1998). If substantial evidence supports the chancellor's fact-findings, this Court must affirm, even though we "might have found otherwise as an original matter." Nichols, 883 So.2d at 556(¶ 7). And, where the chancellor has failed to make specific findings, we will assume that the chancellor resolved such issue in favor of the appellee. Id.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT JAMES NEWTON AND FLOYD BROWN DISCUSSED AND MARKED THE CORNERS OF THE PROPERTY BOUNDARY LINES WITH ANGLE IRONS PRIOR TO THE EXECUTION AND DELIVERY OF THE WARRANTY DEED, WHICH WARRANTY DEED WAS CLEAR AND UNAMBIGUOUS AND DID NOT CONTAIN OR MENTION ANY OF THE MARKED PROPERTY IN THE LEGAL DESCRIPTION?

¶ 10. This issue is the first of eleven attacks on specific fact-findings by the chancellor. In this argument, Sturdivant contends that the chancellor erred by crediting Newton's testimony that, in 1983, he and Brown discussed and marked the corners of the 5.5 acre parcel. Sturdivant argues that the chancellor could not consider Newton's testimony as evidence of adverse possession because the best proof of Brown and Newton's intent was the 1983 deed from Brown to Newton, the calls of which did not correspond to the monuments laid by Newton and Brown.

¶ 11. This argument is without merit. "[P]ossession is adverse in which the holder claims, and intends to claim title, without regard to the fact that the...