Before Bridges, C.j., Coleman, And Herring, JJ.
The opinion of the court was delivered by: Herring, J., For The Court.
DATE OF JUDGMENT: 02/28/97
TRIAL JUDGE: HON. DON GRIST
COURT FROM WHICH APPEALED: CALHOUN COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: TITLE TO PROPERTY CONFIRMED IN APPELLEE. APPELLANT ORDERED TO REMOVE IMPROVEMENTS FROM PROPERTY. INJUNCTION GRANTED.
DISPOSITION AFFIRMED IN PART, REVERSED AND
¶1. Clemmie Lee Walker appeals from the decision of the Chancery Court of Calhoun County, Mississippi, which (1) granted injunctive relief to the Appellee, Fred H. Murphree; (2) denied Walker's adverse possession claim; and (3) ordered Walker to remove three houses which he had located upon Murphree's land. The chancellor also enjoined both Walker and Murphree from bothering, threatening, or harassing each other or from further trespass upon the other's land.
¶2. On August 13, 1996, Fred H. Murphree filed his petition for injunctive relief against Clemmie Lee Walker, alleging that Murphree owned certain real property located in Bruce, Mississippi, and that Walker had moved three houses onto said property thereby encroaching upon Murphree's land. Murphree asked for an order enjoining Walker from leaving the houses on Murphree's property, together with actual and punitive damages. Walker asserted the affirmative defense of adverse possession, and this action was presented for trial on August 22, 1996.
¶3. At the Conclusion of the testimony of Donald S. Bell, Murphree's first witness, it became evident that the parties had failed to join all of the necessary parties to the action. The chancellor then continued the case until September 26, 1996, at which time all of the necessary parties had been joined and were present at trial. At the Conclusion of the testimony on September 26, 1996, the court and the parties made an "on site" inspection of the property, and the parties were instructed to submit proposed findings of fact, Conclusions of law, and a proposed order if they wished to have them considered prior to the court taking the matter under advisement.
¶4. On March 15, 1994, Walker purchased property situated north of and adjoining the property belonging to Murphree from Larry West and his wife, Prentice West. Murphree purchased his property on June 3, 1985, from the heirs of E. D. Winters and his wife, Euris Winters. The dispute in this case concerns the location of the boundary line between the parcel of land owned by Murphree and the parcel owned by Walker. Over the years, ditches were constructed on and around the subject properties and the ditch which is the subject of this controversy runs east and west across the disputed land which is claimed by both parties. Walker claims that his property extends south to the center line of the ditch. Murphree claims that the ditch is wholly located within his land and that his property line extends north beyond the ditch.
¶5. Prior to March, 1996, the boundary between the properties owned by Murphree and Walker was not the subject of dispute. However, when Walker moved three frame houses onto the land directly north of the ditch during March, 1996, Murphree protested. Murphree retained Donald S. Bell, a registered surveyor, to survey his land using Murphree's deed for reference. Bell's survey, as shown in Exhibit "A" attached hereto, indicated that each of Walker's frame houses encroached upon Murphree's land or upon land belonging to Murphree and his mother, brother, and sister. These encroachments varied from eight to ten feet. As stated, the court determined at the Conclusion of Bell's testimony that there were necessary parties who had not been joined, and the case was continued to September 26, 1996.
¶6. When the trial reconvened, Murphree recalled Bell. Bell testified that he used calls of the deed which was provided to him by Murphree to determine the boundary lines and that he did not consider any "usage lines" when he made his drawing. Murphree then called his brother, Dewey Murphree, who testified that the ditch was never used as a property line but that Larry West, Walker's predecessor in title, used the land north of the ditch for a garden and mowed the property up to the ditch. Dorothy Johnson, Murphree's sister, testified that her brother used the land south of the ditch but did not use the land north of the ditch. However, she had never known the ditch to be a property line.
¶7. Murphree then called Linda Aron, the daughter of E. D. Winters and his wife, Euris Winters, both deceased and Murphree's predecessors in title. Aron testified that the original purpose of the ditch was to assist with drainage of water from neighboring property. She testified that the ditch had never been considered to be a boundary line, and she had no knowledge of how the property on either side of the ditch was used. Murphree testified that he was living on his property when Larry West purchased the property to the north in 1967, and had never mowed or attended to the property north of the ditch. He stated that before he sold to Walker, West mowed the north side of the ditch. After West was employed by the City of Bruce to mow grass, he mowed both sides of the ditch. Murphree acknowledged that West maintained a yearly garden on the north side of the ditch prior to his sale to Walker. However, when Walker moved the houses onto the area just north of the ditch, Murphree immediately protested. As stated, he retained Bell to prepare a drawing of his land using the calls of his warranty deed as a reference, and filed a petition to enjoin Walker to remove the houses from his property. Finally, Murphree testified that the lawsuit cost him approximately $1,600 in survey and legal fees.
¶8. Walker called Larry West to testify as his first witness. West stated that he purchased the property which he later sold to Walker in 1967 from Billy Parker. He continually lived on the property until Walker purchased it in March, 1994. West testified that prior to the existence of the ditch, a fence was located on what is now the north edge of the ditch. He testified that from 1967, when he purchased the land, until 1992, he maintained a garden on the north side of the ditch. Walker said that he mowed the north side of the ditch before he became employed by the City of Bruce to mow grass, and thereafter, he mowed the south side also. In addition to maintaining a garden and mowing the grass north of the ditch, West ...