BEFORE PATTERSON, C.J., DAN LEE AND PRATHER, JJ.
PATTERSON, CHIEF JUSTICE, FOR THE COURT:
In the Chancery Court of DeSoto County, Rayford W. and Betsy G. Stone, husband and wife, filed a bill of complaint to confirm and quiet title, to remove cloud on title and for permanent injunction against Grady E. and Cleo Gadd, husband and wife. The Gadds filed a separate answer and a cross-bill to remove cloud on title.
The chancellor found for the Stones and ordered that title in fee simple be confirmed and quieted in them and that the defendants be permanently enjoined from entering the subject property. Aggrieved with this judgment, the Gadds appeal. They argue the chancellor's decision, that the Stones had acquired title to the Gadds' land by adverse possession, was error because it was reached in absence of proof (1) of the ouster of the Gadds for the ten year statutory period; or (2) that the Stones' use of the property was exclusive and hostile. Further the Gadds assign as error that the court failed to apply the doctrine of constructive possession for the benefit of the Gadds, and that the court failed to recognize that the Stones' use of the Gadds land was a mere continuation of a permissive use.
This case is a boundary dispute between owners of adjacent tracts of land outside the Olive Branch city limits in DeSoto County. According to the deeds of both parties and the admission of the Stones, the common boundary is the section line common to sections 23 and 24. See Appendix "A" . Therefore the Gadds hold record title to the disputed area, which contains a gravel road used by both parties.
When the Gadds acquired title to their property from Cary Garrett in 1951, Garrett informed Gadd that the barbed wire fence near the eastern boundary was not a property line fence. Instead, the property line was east of the gravel road.
When Rayford Stone bought his property in 1952, he assumed the barbed wire fence marked the western boundary. No one told him otherwise until 1976, when the Gadds sold a 1 1/2 acre lot to a local church. Shortly after the sale, Mrs. Stone discovered church members taking down the fence. She informed them that this was the "line fence" and that they should speak with her husband before continuing to take it down.
This led to a confrontation between Stone and Gadd. According to Gadd,
Well, I told him that the fence wasn't the property line, that it was East [sic] of the road, where the property line was. He asked me, said, "Did you have yours surveyed?" I said, "Naw." I said, "Did you have yours surveyed when you bought it?" He said, "Naw." I said, "Well," I said, "Let's get a surveyor in here and have it surveyed and I'll pay half and you pay half," and he wouldn't do it . . . . He asked me, "Well, what do you want me to do, build me another road?" I said, "Naw, use this road that's already here."
Shortly thereafter, Gadd took down the fence and hauled away the posts and wire.
Mo one attempted to rebuild the fence, and there was no more controversy until the summer of 1980, when the Gadds' son Quinton Gadd completed a house on the northeast corner of his parents' property. The Gadds connected Quinton's new driveway with the road, prompting the Stones to forbid the Gadds to use the road on the disputed area. Further, the Stones filed this suit against the Gadds.
The issue presented is whether the Stones proved their title based on adverse possession. As we held in Eady v. Eady, 362 So. 2d 830, 832 (Miss. 1978),
. . . Persons relying on adverse possession as basis for their claim of title have the burden of proof on the issue. Kayser v. Dixon, 309 So. 2d 526, 528 (Miss. 1975). For title to ripen in a claimant by adverse possession, the occupancy
must be "actual, adverse, hostile, exclusive, peaceful, uninterrupted and continuous, under claim of ownership, open, notorious, and visible for the statutory period of ten ...