Trotter v. Gaddis and McLaurin, Inc., 54214

• Decision Date: 30 May 1984
• Docket Number: No. 54214,54214
• Citation: 452 So.2d 453
• Parties: H. Alex TROTTER v. GADDIS AND McLAURIN, INC., et al.
• Court: Mississippi Supreme Court

Page 453

452 So.2d 453

H. Alex TROTTER v. GADDIS AND McLAURIN, INC., et al.

No. 54214.

Supreme Court of Mississippi.

May 30, 1984.

Rufus Creekmore, Jackson, for appellant.

Henry M. Kendall, Jackson, for appellees.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

This is a suit to remove clouds upon title to two tracts of real estate filed by Gaddis & McLaurin, Inc., and Gaddis Farms against H. Alex Trotter in the Hinds County Chancery Court. Trotter asserted a claim of title to the property by adverse possession, which claim the chancellor disallowed. As to Tract No. I, the chancellor We reverse and render as to both tracts of land.

found that a written lease with an indefinite description from Gaddis to Trotter showed permissive use and precluded an adverse claim by Trotter. With respect to tract II, the chancellor held that sufficient notice had not been given to Gaddis Farms to effectively claim title by adverse possession.

I.

Appellant, Alex Trotter, is record titleholder to land in Western Hinds County described as:

The NE 1/4 of the SW 1/4 and ten (10) acres east side of the NW 1/4 of the SW 1/4 and three and one-half (3 1/2) acres north part of the SE 1/4 of the SW 1/4 and one (1) acre in the NE corner of the SW 1/4 of the SW 1/4 of Section 19, Township 7, Range 2 West, and being in Second Judicial District of Hinds County State of Mississippi.

This tract consisting of 54 1/2 acres was purchased by Stella Trotter from J.L. Gaddis, who was the common source of title between the Trotters and appellees, in 1916. The tract was later conveyed to George Trotter, father of appellant. In March, 1978, George Trotter conveyed his interest in the land to appellant, Alex Trotter. There is no dispute as to the 54 acres above described but it is the lands adjoining this 54 acre tract to the north and to the west that are the subject of this lawsuit.

Gaddis and McLaurin, Inc. owns record title to land along the northern boundary of the Trotter property described as:

The NW 1/4, less 3.85 acres in the NW corner, Section 19, Township 7 North, Range 2 West, Hinds County, Mississippi.

Gaddis Farms owns record title to land along the western boundary of the Trotter property described as:

All that part of the NW 1/4 of the SW 1/4 and 7.2 acres off the north end of the SW 1/4 of the SW 1/4, Section 19, Township 7 North, Range 2 West, Hinds County, Mississippi.

Shortly after Stella Trotter purchased the Trotter property from J.L. Gaddis, a barb wire fence was constructed through a wooded area along what was believed to be the northern and western boundaries of the property. Unknown to the parties, the fence actually encroached upon the Gaddis property to the north, later to become known as Gaddis And McLaurin property (Tract I), creating a 5.5 acre dispute. The fence also encroached upon Gaddis property to the west, later to become Gaddis Farms property (Tract II), creating a 9.8 acre dispute. The proof showed this fence to be continuous and nailed to trees and posts through the woods. The age of the fence was shown by tree overgrowth and maintenance of the fence through the years was evidenced by the addition of barbed wire strands in certain places.

II. AS TO TRACT I

George Trotter was aware of the boundary fence his mother, Stella, had constructed in 1916, and he subsequently maintained that fence during the years he owned the property. The disputed property referred to as Tract I was cultivated and pastured by both him and his mother for over thirty years.

Lanzy Bates lived on the Tract I property as a tenant farmer from 1923 through 1926. In 1927 he moved back, and for six or seven additional years, he raised crops and pastured cows. After Bates left Trotter's employ, he continued to do part-time work on this disputed property.

Arthur Collins, a Trotter tenant farmer on Tract II from 1961 until 1966, was familiar with Tract I. He stated that this tract was used for row crops and he recalled pulpwood cutting from this land by the Trotters.

Alex Trotter remembered his father and grandmother's usage of the property from his childhood years. He corroborated testimony of the cultivation, pasturing, and In 1955 George Trotter as owner of the Trotter property, entered into a lease with Gaddis And McLaurin, Inc., whereby Trotter was to lease land from Gaddis And McLaurin described as "between 40 and 80 acres of land in the S 1/2 of the NW 1/4 of Section 19, Township and North Range 2 West in Hinds County, Miss." Trotter admitted the existence of the lease and admitted paying rent on the lease through December, 1977. He, however, denied that the property in the lease was the same as the disputed property contained in Tract I. Instead, he maintained the position that the property he was leasing from Gaddis And McLaurin was a tract of land north and west of the disputed property. Gaddis And McLaurin's position with respect to the lease was that since it included Tract I, Trotter's use of the property was permissive. Evidence relied upon by Gaddis And McLaurin, Inc. against adverse possession of Tract I focused on the 1955 lease and not upon use of the property. The lease did not purport to describe any portion of the Tract II property.

pulpwood cutting on both these disputed property tracts.

II A.

On this proof the chancellor denied the adverse possession claim for the sole reason of the execution of the 1955 lease between Gaddis and McLaurin and George Trotter. The lease instrument purported to lease:

between 40 and 80 acres of land in the S 1/2 of the NW 1/4 of Section 19, Township and North Range 2 West in Hinds County, Miss.

The disputed property referred to as Tract 1 was a 5.85 acre tract located along the south line of the SE 1/4 of the NW 1/4 of Section 19. Under the lease description, it is impossible to determine whether the 5.505 acre tract is included in the "between 40 and 80 acres" leased.

Descriptions in leases as in deeds must describe the leasehold with certainty if the lease is to be valid. Gex v. Dill, 86 Miss. 10, 38 So. 193 (1905). See also, 49 Am.Jur.2d, Landlord And Tenant Sec. 34 (1970). Land descriptions, to be sufficient, should enable a surveyor to locate boundaries by following the description. Overby v. Cavanaugh, 434 So.2d 1365 (Miss.1983).

In the case sub judice, Gaddis & McLaurin, Inc. attempted to lease a given number of acres out of a larger tract of land. We have held in numerous cases that an attempted conveyance of a given number of acres out of a larger tract, without specifying where they are located within the larger tract, is void for uncertainty of description. Wilson v. Clark, 278 So.2d 250 (Miss.1973); Mississippi Industries for the Blind v. Jackson, 231 Miss. 135, 95 So.2d 109 (1957); Heidelberg v. Duckworth, 206 Miss. 388, 40 So.2d 179 (1949); Crosby Lumber and Manufacturing Company v. Elsas, 183 Miss. 107, 183 So. 499 (1938).

George Trotter admits paying rent on the lease through December, 1977. He refutes the argument that the lease includes the Tract I property and instead, he contends that the property he leased is to the northwest of Tract I. According to the lease description, the leased property could just as likely be outside the disputed area as inside. This Court agrees and holds that the lease is too uncertain to preclude Trotter's adverse possession claim.

II B.

Even though we hold the lease description void as a defense against an adverse possession claim, the adverse possession claim of Tract I, if valid, must meet the requirements of such possession.

There are six essential elements necessary to constitute an effective adverse possession claim. There must be possession which is (1) and under claim of right, (2) actual, (3) open, notorious, and visible, (4) exclusive, (5) continuous and uninterrupted for ten years, and (6) peaceful. Houston v. U.S. Gypsum Co., 652 F.2d 467 (5th Cir.1981), Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293 (Miss.1980), Eady v. Eady, 362 So.2d 830 (Miss.1978).

In Smith v. Anderson, 193 Miss. 161, 8 So.2d 251 (Miss.1942), this court held:

Under Section 2287, Code of 1930, known as the "Ten Years Adverse Possession Statute," one may acquire title to land without actually occupying it, either himself or by tenant, but by merely cultivating, pasturing, cutting and selling timber and other acts of ownership and control over the same.... (Id. 8 So.2d at 256).

See Chatman v. Carter, 209 Miss. 16, 45 So.2d 841 (1950).

The possession must be sufficient to put another on notice, actual or imputable, of an adverse claim to his property. Without such notice, possession will never ripen into title. Further, mere possession is not sufficient to satisfy the requirements of open and notorious possession. Craft v. Thompson, 405 So.2d 128 (Miss.1981); See Peoples Realty & Development Corp. v. Sullivan, 336 So.2d 1304 (Miss.1976).

In Cole v. Burleson, 375 So.2d 1046 (Miss.1979) property not contained in appellant's deed was enclosed by a fence built by appellees' predecessor in interest in 1949. Three other predecessors had title before appellee obtained the property in 1972. Objection to the fence was made by appellants after appellee had obtained title and a suit to enjoin appellee from entering the property was filed. The 1949 fence had been in a state of disrepair since 1955.

Holding that the appellees' predecessors in interest had obtained title by adverse possession, this Court stated:

It is not required that land claimed under adverse possession be in the same quarter section or section as the land described in the deed lies. The rule is the same as, if there had been no deed, the disputed land had been enclosed by a fence, and ownership had been claimed and exercised for ten (10) years. Title...