BEFORE WALKER, C.J., DAN LEE AND ROBERTSON, JJ.
DAN LEE, J., FOR THE COURT:
On March 23, 1984, Mrs. Pontiff filed suit in the Chancery Court of Lamar County, Mississippi, to quiet and confirm title and remove clouds on a 35-foot strip of land. Mr. Pieper filed
his answer and counterclaim on August 16, 1984, asking that title be confirmed in his name. The cause went to trial on November 21, 1984. After the trial the chancellor took the cause under advisement, rendering an opinion May 1, 1985, holding that Mrs. Pontiff and her predecessors in title had possessed and claimed the real property in contention for more than 40 years. He declared Mrs. Pontiff the owner of the property in controversy and denied the counterclaim of Mr. Pieper. From this judgment Mr. Pieper appeals, assigning as error the following:
I. THE COURT ERRED IN RULING THAT THE APPELLEE AND HER PREDECESSORS IN TITLE POSSESSED AND CLAIMED THE REAL PROPERTY IN CONTENTION ALONG THE NORTH SIDE OF HER TRACT UP TO THE LOCATION OF THE OLD FENCE THAT EXISTED ALONG THE SOUTH BANK OF THE PUBLIC ROAD BETWEEN THE PROPERTY BELONGING TO THE PARTIES HERETOFORE FOR A PERIOD OF MORE THAN 40 YEARS AND THAT THE SAID RULING BY THE COURT WAS NOT IN ACCORD WITH THE WEIGHT OF THE EVIDENCE PRESENTED AT THE TRIAL OF THIS MATTER.
II. THE COURT ERRED IN OVERRULING APPELLANT'S MOTION TO EXCLUDE TESTIMONY AND DISMISS THE LAWSUIT TO CONFIRM AND QUIET TITLE.
III. THE COURT ERRED IN DENYING THE RELIEF REQUESTED IN THE COUNTERCLAIM FILED BY THE APPELLANT.
On February 19, 1973, Mrs. Pontiff was conveyed a tract of land by her mother, Mrs. Hazel Reynolds, which was described in the warranty deed as having a northern boundary 289.7 feet along the south margin of a local road which intersects U. S. Highway 11. The land was also described as being located in the southeast quarter of the northwest quarter of Section 3, Township 2 North, Range 14 West, in Lamar County, Mississippi. On April 30, 1980, Mr. Pieper purchased property whose southern boundary was described as the south line of the northeast quarter of the northwest quarter of Section 3, Township 2 North, Range 14 West, in Lamar County, Mississippi. The above two described parcels of land overlap by 35 feet because the public road referred to in Mrs. Pontiff's deed is actually located in the northeast quarter of the northwest quarter and did not lie along the south line of the northeast quarter of the northwest quarter. The dispute as to ownership of this 35-foot strip of land arose when Mrs. Pontiff saw a "for sale" sign posted on the side of the road that she claimed as her property in December of 1982.
At trial Mrs. Pontiff testified that her mother, Mrs. Hazel Reynolds, bought property in 1942 which contains the property deeded to Mrs. Pontiff. Mrs. Reynolds' deed was also in evidence. Mrs. Pontiff also testified that Highway 11 dissects this larger tract of land and that her mother conveyed her, in 1973, the property on the east side of Highway 11, which includes the 35-foot strip now in dispute. Mrs. Pontiff testified that in 1942, on this east side of Highway 11 (the property deeded to her), there were remnants of an old cabin and that her father used the property to pasture his cows. She also testified that this land, including the 35-foot strip, was under fence in order to keep the cows in. She also testified that there was timber on this property, including the 35-foot strip in dispute. Mrs. Pontiff further testified that when she bought the property in 1973, the fence, although in deterioration, was still standing. In 1982, the time the controversy over this 35-foot strip of land arose, the fence was practically all torn down except for some remnants and fence posts.
Mr. Jordan, a certified land surveyor for state-aid roads in the county, testified from the survey which he made of this property in 1973 for Mrs. Pontiff. In his testimony he stated that Mrs. Pontiff's property and Mr. Pieper's property were separated by a fence line and that this fence line ran along the south margin of the county road. He also testified that he had lived in Purvis all of his life and that he had never known anyone else to make use of this disputed property other than the Reynolds since World War II. He testified that the property had always been bounded by a fence or a fence line along the side of the road. He further testified that no one else besides the Reynolds family had ever claimed that 35 feet of property. Finally, he testified that the iron stake which marks the section line was probably placed there by a surveyor hired by Mr. Pieper in 1982, and that, indeed, the north boundary described in Mr. Pieper's deed did not run along the south margin of this road, but was described as being the section line. He speculated that the old fence was originally put up just outside the section line (so that it ran along the road) simply because the road is a natural boundary.
Two other witnesses, long-time residents of the area, testified that the disputed land had always been known as belonging to the Reynolds family, and that the property had been under fence since the early 1940's.
On cross examination of these witnesses, the testimony focused on what use had been made of the land since 1973, when Mrs. Pontiff bought it from her mother. Mrs. Pontiff testified that the land had not been put to any use other than for her
and her husband to walk on when they came from Texas to visit her mother. She also testified that they had planted trees on the property and specifically had planted a pear tree, which eventually died, on this 35-foot strip. The other three witnesses testified that, to their knowledge, the land had not been used for gardening, farming, cutting timber, or grazing cattle in the past nine years.
Mr. Pieper did not put on any witnesses of his own, and only offered his deed into evidence to prove the boundary lines of his property. At the end of oral testimony, both sides offered into evidence records of the ...