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HARRY EASON v. CARL C. HUDSON AND KATIE M. HUDSON

DECEMBER 03, 1986

HARRY EASON
v.
CARL C. HUDSON AND KATIE M. HUDSON



BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

By decree of adverse possession the Chancellor of Newton County awarded title of 8.83 acres to appellees and assessed actual damages for a fence and trees destroyed by appellant. An appeal and cross-appeal have been filed by the parties. The Court affirms the direct appeal, the cross-appeal is reversed and rendered in part and remanded in part.

The record clearly shows that since 1952 appellees have been in actual, open notorious, hostile, exclusive and continuous possession of the disputed tract located in the Southeast Quarter of Section 29, Township 6, Range 13 in Newton County. In 1984 appellant asserted his claim to the property by bulldozing a fence and tree line one-half mile in length. Errors assigned on appeal are without merit. Two points raised on cross-appeal will be addressed here.

 The chancellor, under the authority of Miss. Code Ann. 95-5-3, awarded a statutory penalty of five hundred twenty-five dollars ($525.00) or fifteen dollars ($15.00) per tree for thirty-five (35) oak, gum and pine trees destroyed by Eason. In 1981 95-5-3 was amended to raise the penalty from fifteen dollars ($15.00) to fifty-five dollars ($55.00) per tree. We reverse and render this statutory penalty award to increase that award from five hundred twenty-five dollars ($525.00) to one thousand nine hundred twenty-five dollars ($1,925.00) under the amended statute.

 Appellees also seek remand to determine the value of the property in dispute and accurately assess the fifteen percent (15%) penalty prescribed by Miss. Code Ann. 11-3-23 (Supp.1985). See Johnson v. Black, 480 So.2d 519 (Miss. 1985); Old Security & Cas. Ins. v. Clemmer, 458 So.2d 732 (Miss. 1984); Walters v. Inexco Oil Co., 440 So.2d 268 (Miss. 1983); Peoples Bank and Trust v. L. & T. Developers, 437 So.2d 7 (Miss. 1983); Hart v. Catoe, 393 So.2d 1346 (Miss. 1981).

 This Court remands this case to the Chancery Court of Newton County to determine the value of the disputed land at issue for purposes of assessment of the above penalty.

 AFFIRMED ON DIRECT APPEAL; REVERSED ON CROSS-APPEAL AND RENDERED IN PART AND REMANDED IN PART.

 WALKER, C.J., ROY NOBLE LEE AND HAWKINS, P.JJ., DAN LEE, ROBERTSON, SULLIVAN, ANDERSON AND GRIFFIN, JJ., CONCUR.

19861203 ...


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