Before McMILLIN, C.j., King, P.j., And Diaz, J.
The opinion of the court was delivered by: McMILLIN, C.j.
DATE OF JUDGMENT: 5/19/97
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: EQUAL DIVISION OF OWNERSHIP OF DISPUTED PROPERTY; TRANSFERRED OWNERSHIP OF PROPERTY TO DEFENDANT; TRANSFERRED OWNERSHIP OF FENCE TO PLAINTIFF; ORDERED SURVEY TO CONCLUSIVELY DETERMINE PROPERTY LINE.
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART; AND REVERSED AND RENDERED IN PART - 3/23/99
MOTION FOR REHEARING FILED:
¶1. Gordon Kleyle has appealed a judgment of the Pearl River County Chancery Court. The judgment was intended to settle a dispute between Kleyle on the one hand and Leon and Ercell Mitchell on the other as to the exact location of the common boundary between two tracts of real property in rural Pearl River County. Kleyle originally raised eight issues on appeal. He attempted to add two more issues in his rebuttal brief. Finding some of the issues to be without merit while others are meritorious, we affirm in part, reverse and remand in part, and reverse and render in part.
¶2. Kleyle and the Mitchells are the owners of two adjacent tracts of land, both of which were carved from a larger tract of some 215 acres owned by Tommy Breland and F. L. Stevens. Kleyle purchased his tract first, the sale closing in 1993. Kleyle's property was taken from the southwest portion of the Breland and Stevens acreage and consisted of 91.75 acres. The legal description for the deed was prepared by a surveyor named J. C. Bounds. Bounds also was retained to mark the boundaries on the ground by placing markers at the appropriate corners. Even before the sale closed, Kleyle proceeded to construct a fence running generally north and south, the location to be determined by the eastern boundary of his new acquisition. Kleyle testified that he intended to build the fence approximately eighteen inches west of the actual surveyed line of his eastern boundary in order to create a buffer zone between him and his neighboring property owner to the east. He wanted to do this because he intended to run cattle on his property, and he wanted to avoid any physical contact between his herd and any livestock that might be running on the land lying to the east. According to Kleyle, this buffer zone would prevent the transmission of disease from other herds into his herd.
¶3. Three years later, in 1996, Breland and Stevens entered into an agreement to sell a portion of their remaining acreage to the Mitchells. The Mitchell tract, to consist of 46.74 acres, was intended to lie in the southeast portion of the larger tract. It was originally contemplated that, as a result of this conveyance, Kleyle and the Mitchells would share a common border running roughly north and south, said line being Kleyle's aforementioned eastern border and the Mitchells' western border. A different surveyor, Lawrence L. Seal, was retained to conduct the survey in connection with the Mitchell transaction.
¶4. Seal, in performing the survey of the Mitchell tract, elected to use the southeast corner of Kleyle's tract as the point of beginning of the metes and bounds description. That point would, by definition, also be the southwest corner of the proposed Mitchell tract. In making the necessary preliminary calls to reach that point of beginning, Seal's description ran to a point that was Kleyle's southwest corner and the next call was to run along Kleyle's south boundary to his southeast corner -- the intended beginning point of Mitchell's description. In Kleyle's 1993 deed, the call for the distance between these two corners defining Kleyle's south boundary was 1,608 feet. However, when Seal made the actual measurement on the ground from Kleyle's southwest corner to the fence corner at his southeast corner, he discovered that the distance was, in actuality, approximately 1,613 feet, indicating that Kleyle's fence, rather than being eighteen inches inside his line as Kleyle had intended, was actually encroaching eastward onto the Breland and Stevens property. Nevertheless, Seal proceeded to prepare a legal description for the transfer to the Mitchells that called for their western boundary to run along Kleyle's fence rather than along the line as designated in his deed. The effect of this was to create a very narrow strip, called a "strip" or "gore" at the common law, that ran in a north-south direction between Kleyle's eastern boundary (as defined by his deed and not as defined by his fence) and the Mitchells' western boundary.
¶5. Despite evidence to the contrary as shown in Seal's survey, Kleyle persisted in asserting that his fence was on his property and that, in fact, he owned a strip eighteen inches wide on the eastern side of the fence. When it became apparent that he and the Mitchells would be unable to amicably settle the location of the disputed boundary line, the Mitchells went back to Breland and Stevens and procured a separate deed conveying the disputed strip to them. The Mitchells then commenced this action asking the chancellor to adjudicate the proper boundary between their tract and the Kleyle tract.
¶6. Kleyle represented himself at trial. He did not have any testimony from a surveyor or other qualified expert demonstrating that the fence on his eastern boundary was, in fact, placed eighteen inches west of his eastern line as he claimed. Rather, he simply continued to assert that his fence was located exactly where he had intended it to be. The Mitchells, for their part, called Seal as a witness. He testified generally to the facts set out above, indicating the basis for his opinion as to how the narrow strip between the two properties came to be. One of the necessary logical Conclusions of his testimony was that, because Kleyle's fence had encroached onto the Breland and Stevens property when it was constructed, that fence was on the Mitchells' property after they acquired title to the previously-existing strip by virtue of their second conveyance from Breland and Stevens.
¶7. The chancellor, after hearing all the evidence, was apparently satisfied that the strip testified about by Seal did exist, even though he couched his findings in terms of a conflict between Seal's survey and Kleyle's earlier survey done by Bounds. The chancellor, rather than attempting to resolve the factual dispute as to whether Kleyle's assertion that the true line ran eighteen inches east of his fence was correct or whether Seal's testimony that the true line ran some few feet west of Kleyle's fence was correct, elected to "solve this dilemma by equally dividing the Holiday Strip in a Northerly and Southerly direction thereby creating a new boundary line between the two tracts." In addition to creating this new boundary line, the chancellor ordered a transfer of ownership of Kleyle's fence to the Mitchells and, in what was apparently a form of permanent injunction, required Kleyle not to construct any new fence within eighteen inches of the newly-established boundary line.
¶8. It is helpful in our deliberation to first observe the proper standard of review to assess the propriety of the chancellor's rulings. In boundary disputes, a determination of the legal boundary between properties is a question of fact for the chancellor. Farris v. Thomas, 481 So. 2d 318, 318 (Miss. 1985). The same standard applies to questions involving the accuracy of a survey. Hicks v. Bolton, 223 So. 2d 522, 522 (Miss. 1969). The chancellor's decision in this regard will not be disturbed on ...