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MARCUS C. BERRY AND ETTA MAE C. BERRY v. JOHN PLAYER

MARCH 29, 1989

MARCUS C. BERRY AND ETTA MAE C. BERRY
v.
JOHN PLAYER, STRINGER LUMBER CO., AND PEARL RIVER FOREST PRODUCTS, INC.



BEFORE ROY NOBLE LEE, C.J.; PITTMAN AND BLASS, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

Marcus and Etta Mae Berry have appealed from a judgment entered against them in the Hinds County Circuit Court, in favor of John Player, for actual and statutory damages in the amount of Eighty Thousand Twenty-Eight Dollars ($80,028.00). Player sued the Berrys, Pearl River Forest Products, and Stringer Lumber Company, alleging trespass and the willful and intentional cutting of trees on Player's property. The Berrys base their appeal on fifteen assignments of error from the trial below. Finding no reversible error, we affirm.

The property in dispute in this case (" Subject Property ") is a twenty-acre tract of land located south of Raymond, Mississippi, with the legal description being the W 1/2 of the NE 1/4 of the SE 1/4 of Section 36, Township 4 North, Range 3 West of Hinds County. The Subject Property is located adjacent to property owned by Marcus and Etta Mae Berry since 1982. The Berrys' property, and allegedly the Subject Property, are part of a tract known as the Tom Bacot Place, as the tract had been owned for years by the Bacot family.

 Record title to the Subject Property is in John Player's name. Fred Washington and his family had record title to the Subject Property for a number of years. Player obtained deeds to an undivided interest in the Subject Property from several of the Washington heirs. A partition proceeding was later instituted by one of the Washington heirs to partite land to which the Washington family had title. The Subject Property was one of the parcels included in this proceeding. John Player was named a party to the partition proceeding. Neither Marcus nor Etta Mae Berry nor heirs of the Bacots were made parties to this proceeding. A final decree in the partition proceeding, filed September 15, 1976, awarded record title to the Subject Property to John Player.

 In 1982 the Bacot Place was owned by Mae LeBlanc, one of the Bacot heirs. She desired to sell it, and Marcus Berry wanted to purchase it, as it adjoined property he had owned since 1952. Berry negotiated with Bill Bacot, Mrs. LeBlanc's nephew. According to Berry, once they agreed on a price and terms, Bill Bacot mailed him a hand-written sales agreement confirming the sale. The sales agreement, which was not allowed into evidence by the trial court, purported to sell 364 acres, known as the Tom Bacot Place, for $210,000.00. Berry testified that he understood the Tom Bacot Place to include the Subject Property, and as a result Berry felt he purchased the Subject Property. Berry received a warranty deed from Mrs. LeBlanc, although the legal description on the

 deed did not include the Subject Property.

 Berry testified at trial that he had understood since his arrival in the area in 1952 that the Bacot Place included the Subject Property. One of Berry's employees, Charlie Christian, testified at trial that his belief was that the Bacot Place included the Subject Property. Christian grew up in the immediate area and lived there until 1938, and then visited intermittently until 1960, when he returned to live in the area. Several other witnesses, including Walter Ratliff, Excell Christian, Fred Robinson, Fred Jones, John Singleton, Clarence Kent, Jr., and Willie Christian testified with varying degrees of certainty that they had always considered the Subject Property to be part of the Bacot Place and had never known anyone to use it except the Bacots or their lessees. Walter Ratliff had worked on the land for more than 10 years and had never known anyone to use the land except Tom Bacot or V. L. Scott, with Bacot's permission. Ratliff never knew Fred Washington or any of his family to use the Subject Property. The other witnesses corroborated Ratliff's statements, but many had been away from that area for many years, were elderly, or had ties to Marcus Berry, such as being his employees.

 In the latter part of 1982, Berry began making inquiries as far as selling the timber on what he perceived to be his property, including the Subject Property. He first discussed this with a representative of the St. Regis Paper Company, who informed Berry for the first time that there was land which Berry perceived to be his that was not included on his deed. Berry consulted with two attorneys, Robert Ferguson and George Myles, and left with the impression that the Subject Property was his. As a result, Berry built a new fence around what he considered to be his property, an area which included the Subject Property. He said that he encountered no objections from anyone in building the fence.

 Berry later contacted Brown Hairston, a timber consultant with James M. Vardaman and Company. Hairston testified that Berry told him that there was some property in dispute on the tract. Hairston checked the land records and found this to be true. Hairston wrote Berry, including a map of the tract, saying that he would buy the timber for a 10% commission, but refused to buy the timber on the disputed tract. Berry turned down the offer, claiming that the price was unsatisfactory.

 Berry then came into contact with H. A. Stringer of Stringer Lumber Company. Stringer testified that he went out to Berry's property and walked out on the tract with Berry.

 Stringer claims that he was told to cruise (make a lumber count) to the fence which surrounded the property. Stringer never returned to the property and did not do the cruise himself. He said that Berry never mentioned any land being in dispute and that he never saw a legal description of the property until the deal was closed. Stringer paid Berry $57,000.00 for the hardwood on the property and received a timber deed and contract. Berry also met with representatives of Pearl River Forest Products, particularly Joe Stringer, brother of H.A. Stringer. Pearl River was interested in the pinewood on the tract. Joe Stringer met with Berry subsequent to Berry's meeting with H.A. Stringer. Joe Stringer and his partner, Richmond Magee, performed the cruise on the Berry property. According to Joe Stringer, Berry showed them the fence bordering his land on the south and told them to cruise to the fence and cut to the fence. Joe Stringer testified that the only time that he ever heard of any land being in dispute was at the closing, to which Berry replied that there was nothing to worry about because he had had the land under fence for a long time.

 Berry's version of his meetings with the Stringers differs in several key respects. Berry testified that he specifically mentioned to H.A. Stringer that there was land surrounded by his fence that he did not have a deed to. Berry also testified that immediately after their initial meeting, H.A. Stringer came to his house and copied a legal description of his property, not including the Subject Property, off the warranty deed he had received from Mae LeBlanc. Etta Mae Berry corroborated this testimony. H.A. Stringer could not recall this happening.

 The closing of the agreement was held at George Myles' office on April 30, 1985. Emory Morgan, attorney for Pearl River Forest Products, Joe Stringer, H.A. Stringer, George Myles, and Marcus Berry were present. Emory Morgan prepared a title opinion in which he stated that the Berrys had record title to the land described in their warranty deed and in the timber deeds and timber contracts. This did not include the Subject Property. The timber deeds and the timber contracts were both drawn up by Emory Morgan, the attorney for Pearl River. Both timber deeds and the Stringers' timber contract contained a legal description of the Berry property which did not include the Subject Property. However, these documents also contained the following words:

 The Grantors shall cut the timber inside the fences and will cut and remove said pine timber in a more or less" clean cut "manner in order to allow the Grantor to follow up with a dozer, but the

 Grantor is not to interfere with the Grantee in his follow-up work with the dozer.

 That the Grantee shall not have the right to cut timber over the line of the ...


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