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Scott v. Anderson-Tully Co.

Court of Appeals of Mississippi

January 6, 2015

HERMAN SCOTT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF STEWART SCOTT, JR., DECEASED, APPELLANT
v.
ANDERSON-TULLY COMPANY, APPELLEE

DATE OF JUDGMENT: 02/22/2013.

Page 911

COURT FROM WHICH APPEALED: JEFFERSON COUNTY CHANCERY COURT. TRIAL JUDGE: HON. GEORGE WARD. TRIAL COURT DISPOSITION: FOUND APPELLEE HAD ADVERSELY POSSESSED DISPUTED PROPERTY.

FOR APPELLANT: PATRICIA ANN CATCHINGS.

FOR APPELLEE: LANDMAN TELLER JR., LAUREN ROBERTS CAPPAERT.

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ. LEE, C.J., GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

NATURE OF THE CASE: CIVIL - REAL PROPERTY

Page 912

BARNES, J.

¶1. Herman Scott (Scott) filed suit seeking damages after Anderson-Tully Company removed timber from a twenty-acre parcel of land Scott claimed to own. Scott also sought to quiet and confirm title and to enjoin Anderson-Tully from entering the land. The chancellor dismissed Scott's claim, finding that Anderson-Tully had acquired title to the twenty acres through adverse possession. Scott appeals, arguing the chancellor erred. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 1925, brothers Stewart Scott Jr. and Willie Scott inherited an undivided one-half interest in a 584.6-acre tract of land in Jefferson County, Mississippi. The brothers' respective estates now each own the undivided one-half-interest shares in the property (collectively referred to as " the estate" ). Scott, the plaintiff, is the administrator of Stewart Scott Jr.'s estate.

¶3. On March 19, 2010, Scott filed suit on behalf of the estate in Jefferson County Chancery Court, alleging that its adjacent landowner to the east, Anderson-Tully, was trespassing on a portion of the estate's property. Scott sought damages for the removal of timber, and he sought an order enjoining Anderson-Tully from entering onto or cutting and removing timber from the property. An amended complaint sought to quiet and confirm title. The disputed property is a somewhat triangular-shaped tract of land located in the northeastern corner of Section 28, Township 10 North, Range 1 East in Jefferson County.[1] Scott claims that the estate owns all property in Section 28, including the disputed acreage east of the wire fence, up to the section line between Sections 28 and 30.

¶4. Anderson-Tully answered the complaint and counterclaimed to quiet and confirm its own title. Anderson-Tully claimed that according to its deed, it owned the disputed twenty acres in Section 28 east of the wire fence. Alternatively, Anderson-Tully argued that it acquired title to the property by adverse possession through its possession and use of the land from 1969 to 2010.

¶5. A trial was held, at which Scott presented the testimony of Richard T. Logan of Logan Engineering Company. Scott had hired Logan in 2003 to determine the estate's acreage after Scott became concerned that he was paying taxes on more property than the estate owned. Logan found that the estate owned all of Section 28, including the disputed twenty acres. Logan relied on his personal inspection

Page 913

of the property and a plat prepared in 1944 by B.G. Miller, the county surveyor for Jefferson County at that time. Miller's plat was prepared for a timber deed from the Scotts, and is the only recorded description of the Scotts' land in evidence. Miller's plat reflects difficulty in surveying the area, noting that the southern line of the Scotts' tract " has never been accurately determined but will not vary as much as 5 acres." Miller found that the Scotts' property line on the east ran along the section line between Section 28 and Section 30. He noted the wire fence on the east side of the Scotts' property and found that the " 20 1/10 [acres] outside of fence is included in total acreage." However, Miller also made a note on the plat, within the twenty acres, which states that the property is " outside of fence & may be disputed." Logan agreed with Miller's finding that the section line, not the fence line, was the property's border and that the twenty acres belonged to the Scotts. Logan walked the disputed property and stated that the terrain to the east of the fence was " very rough." He found the wire fence was never intended to establish the property's border, but rather was a " convenience fence," or " tree[-]line fence," built to contain livestock. Although other witnesses testified to seeing blue paint along the wire fence that was indicative of Anderson-Tully's ownership, Logan testified that he did not recall seeing any blue paint when he surveyed the property. However, he also testified that he no longer had his field notes and was relying on his memory. Logan examined Anderson-Tully's deed and found no conveyance of any land in Section 28 to Anderson-Tully.

¶6. Richard Scott, an heir of Stewart Scott Jr., lived on the Scott property from his birth in 1938 until 1953. He testified he rebuilt the old wire fence on the east side of the property in 1954 because it was in need of repair. When he rebuilt the fence, he moved it a foot or two to the west, along the tree line, because the posts had rotted and he wanted to avoid digging new post holes. According to Richard, the fence was built to contain livestock and was not the property's border. After moving from the property in 1953, he returned every week or two to visit his father. Up until 2010, he would ride horses around the property when he visited, and would sometimes make repairs to the fence. He never saw anyone using the disputed twenty acres.

¶7. Anderson-Tully presented the testimony of its company surveyor and forester, E.C. Burkhardt. Burkhardt worked for Anderson-Tully from the early 1950s to 1981. Burkhardt testified that Anderson-Tully came into possession of the disputed tract on February 12, 1969, though quitclaim deed. The deed does not contain a metes-and-bounds description or plat. According to Burkhardt, when Anderson-Tully expressed interest in buying the Jefferson County land in 1969, no one, including the land's owners, knew the acreage. Burkhardt explained that the acreage was unclear because the land in Jefferson County was some of the first land south of Ohio to be surveyed by the United States government in 1805. After complaints about irregularities, the government retraced the original lines to get the correct acreage, and it established the sectional descriptions. After this, the " southwest part of Mississippi more or less reverted to the metes[-]and[-]bounds system." But Burkhardt testified that because the section lines are irregular, ...


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