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O'Neal v. Blalock

Court of Appeals of Mississippi

May 2, 2017

CHARLES O'NEAL APPELLANT
v.
TRACY SYKES BLALOCK AND ROBERT ALLEN SYKES APPELLEES

          DATE OF JUDGMENT: 08/21/2015

         COURT FROM WHICH APPEALED: COPIAH COUNTY CHANCERY COURT HON. EDWARD E. PATTEN JR. TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: CLARENCE MCDONALD LELAND.

          ATTORNEYS FOR APPELLEES: RENEE H. BERRY JOHN T. ARMSTRONG JR.

          BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. In December 2013, Tracy Sykes Blalock and Robert Allen Sykes brought suit against Charles O'Neal in the Copiah County Chancery Court to quiet and confirm title in land on which O'Neal was encroaching. O'Neal responded by claiming ownership of the disputed land through adverse possession. Following trial, the chancery court entered a final judgment holding that O'Neal had failed to prove his claim of adverse possession by clear and convincing evidence. O'Neal timely appealed. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. On September 19, 1990, O'Neal purchased approximately 255.8 acres of land in Copiah County. Prior to the completion of O'Neal's purchase, he had the land surveyed by Harold King, a registered land surveyor. O'Neal then had a deed prepared based upon King's survey, which he properly recorded, and to which the King survey was attached. Though this case was initiated on December 23, 2013 by Blalock and Sykes as a complaint to quiet and confirm title, the parties elected to proceed with O'Neal's claim for adverse possession, as it would likely be dispositive to the outcome of the case.

         ¶3. At trial, O'Neal testified that while King performed the survey, he aided by bulldozing a road along the southern boundary of the property. O'Neal further testified that, out of respect for the adjacent landowners, the road was constructed to favor the north side of the southern boundary line surveyed by King. In addition to the dozing of the road, O'Neal stated that at the time of the survey, King also blazed a red, painted line, which was maintained for "years and years." He testified that he personally observed King place each survey pin[1] in every corner of his property, including point 7, which abuts the western right-of-way of Highway 27, and is a primary area of dispute among the parties. O'Neal asserted that he relied entirely on King's placement of the pins for the boundaries of his property, and believed those pins to be within the calls of his deed.

         ¶4. Following the dozing of the road, O'Neal stated that he conducted a variety of acts upon his land, including planting food plots, building a deer stand, hunting, fishing, ATV operation, and inviting others to participate in the same. O'Neal had several different witnesses offer testimony to this effect on his behalf. O'Neal also admitted that while the southern boundary of his property was to follow a due east-west line, unstable terrain and a lake caused his road to deviate from its initially straight course; O'Neal reiterated, however, that he favored the "inside" of his boundary line at all times. No fence was ever built along the southern border surveyed by King.

         ¶5. In 2006, O'Neal founded Copiah Creek Camping and Recreation LLC. The business consisted of charging admission for those seeking to ride ATVs along the road created by O'Neal, including the disputed area, as well as other portions of his acreage. The "tremendous" volume of ATV traffic resulted in the forming of a "mud pit" where the road was once flat. The "mud pit" is a long ditch located below ground level, and the primary area of dispute among the parties, as it sits north of O'Neal's road, but south of the boundary line claimed by Blalock. The "mud pit" also rests east of the "borrow pit, " which is the area where O'Neal's road begins its deviation to the south when following the road in a west-to-east path.

         ¶6. Blalock inherited the property directly south of O'Neal's on October 23, 2003. Dale Blalock, Tracy's husband, testified that in 2011, he and O'Neal traversed the property border, west to east, and that O'Neal admitted he was encroaching upon the Blalocks' land at several points. And in May 2013, prior to a timber sale, the Blalocks had Hunter Newman, a registered surveyor, perform a survey of their property. Newman's survey showed the Blalocks claimed a total of 129.97 acres. Newman reviewed the King survey, and determined that of the seven pins allegedly placed by King in 1990, only pins 1, 2, and 4 coincided with Newman's measurements.[2]

         ¶7. As such, the placement of pins 6 and 7-shown to Newman by O'Neal himself-reflected a southerly encroachment of approximately 122.38 feet onto the Blalocks' land. Newman further testified that for pins 6 and 7 to be accurate, both his and King's surveys would have to be entirely inaccurate at a multitude of other locations, which Newman asserted was highly unlikely. Newman further testified that King made no mention of pins 6 and 7 on his survey, which would be against industry custom if King did in fact set those pins in 1990. Thus, when reviewing the King and Newman surveys together, there were at least two common aspects supporting O'Neal's testimony: (1) that, in general, O'Neal bulldozed a road north of King's southerly survey line; and (2) that his road was not entirely straight.

         ¶8. In addition to testimony regarding his and King's surveys, Newman stated that he relied upon aerial photographs from winter 2006 and summer 2012 to help determine the location of O'Neal's road in the area of dispute. The winter 2006 photograph was of a higher resolution than the summer 2012 photograph, and did not show any such road in the area of dispute, as alleged by O'Neal. In contrast, however, the lower-resolution summer 2012 photograph did show the "mud pit" and road. O'Neal testified that for ...


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