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Cronier v. ALR Partners L.P.

Court of Appeals of Mississippi

December 12, 2017


          DATE OF JUDGMENT: 04/04/2016





          BARNES, J.

         ¶1. Allen Cronier appeals the judgment of the Chancery Court of Jackson County, which found, after a bench trial, that the Rainwaterses[1] proved adverse possession of approximately 9.57 acres in Jackson County, Mississippi, which Allen claimed he owned. Allen was ordered to pay the Rainwaterses' court costs and attorney fees of $10, 790.05, and to remove fencing at his own cost. We affirm the chancellor's finding that the Rainwaterses had adversely possessed the property to the west and north of the Croniers' property. However, we reverse and remand the award of attorney fees to the Rainwaterses.


         ¶2. On July 3, 2012, Allen and his wife, Janice, purchased eighty acres of rural wooded property in Jackson County from Herbert Bang and his wife Earlene Dobbs for approximately $225, 000.[2] The property is located in an area locals refer to as "Roberts' Neck, "[3] near the Alabama border between the Big Creek and Escatawpa Rivers. The Croniers paid cash for the property. Neither the warranty deed nor the closing was handled by an attorney. On July 11, 2012, the warranty deed was recorded in the Jackson County land records. The property description in the warranty deed states the parcel is "approximately 80 acres, more or less."

         ¶3. Prior to the purchase, Allen, Janice, Bang, and his wife explored the property on a golf cart for several hours. Allen did not survey the property, nor did he obtain a title opinion. Allen testified that some old fence posts still stood on the southern border. After the purchase, on July 26, 2012, Allen emailed Gerald Moody Sr. (Moody) about surveying the eighty acres to identify the property's corners and stake it every 100 feet for cattle fencing. Gerald Moody Jr. (Moody Jr.) and a crew were to do the preliminary field work.

         ¶4. The Rainwaters family had owned several thousand acres of the property surrounding the Croniers' parcel for many years, and it is currently held by ALR and MKAZ partnerships. Austin Rainwaters testified that Allen had called him before buying the property to see if "there was anything [he] needed to know." Austin informed Allen that the property corners in the area were not consistent with the theoretical section corners, but former owners of the parcel (Bang, Dobbs, and Roberts) had honored the established corners. Austin told Allen two things were important to the Rainwaterses: they needed help maintaining the road allowing access to their other property; and they wanted Allen to honor the old property lines and corners. Austin recalled that Allen stated it would not be a problem. Austin recommended Moody as a surveyor to Allen.

         ¶5. During preliminary field work, Moody discovered that the Croniers' parcel was seventy and not eighty acres. The preliminary survey revealed a boundary issue with the adjoining property owned by MKAZ and ALR on the north, west, and south sides.[4] The survey map noted the northwest-corner markings and monuments included a three-fourths-inch pipe in the ground and a yellow paint blaze on a tree. The southwest corner was marked by an old fence-corner post. There were old yellow painted blazes meandering along Allen's north and west property lines. There was an old firebreak running along the western boundary of the tract. The survey stated that the northeast and southeast corners, which are not disputed, were marked by a one-and-one-half-inch pipe and a "pine knot g/w PVC pipe, " respectively.

         ¶6. In August 2012, Moody arranged a meeting between Allen and the Rainwaterses to discuss the issue. Allen claimed this was the first time he learned of a boundary dispute. Marshall Rainwaters testified that Allen stated that he had paid for eighty acres and said, "by God I'm going to get eighty acres . . . . I know what I've got to do." He left the meeting angry, and fired Moody's survey company.

         ¶7. Shortly after the meeting, the Rainwaterses went to inspect the property. Marshall testified that the yellow mark and old fence were still at the northwest corner, but the three-fourths-inch pipe marker was missing, leaving a hole. Photographs and a video were taken of the boundary and corner markers, especially of the northwest and southwest corners.

         ¶8. In March 2013, in an attempt to resolve the dispute, the Rainwaterses' attorney wrote a letter to Allen stating that the Rainwaterses' property had been in the family since 1947. He explained: "[h]istorically, the property boundaries of Section 19 and the other sections in this part of Jackson County do not exactly follow the quarter section lines" as seen on Moody's preliminary survey. In July 2013, the Croniers responded by letter, quoting the Bible, denying that the Rainwaterses owned the ten acres, and stating that Bang, one of the prior owners, knew "nothing about this." The letter also informed the Rainwaterses that Allen had conveyed the western ten acres of the property in dispute to the Croniers' granddaughter, who was twelve years old, reserving to Allen and his wife a life estate.[5]

         ¶9. In September 2013, the Moodys finalized their survey of Allen's property. In October 2013, the Rainwaterses visited the property and noted that the corner markers had been moved or obliterated. Further, the yellow paint blaze on the pine-tree bark of the northwest corner had been scraped off. Also, the old fence and post had been removed, as had the yellow paint on the trees along the northern and western boundaries. Additional photographs and a video were taken of the alterations, and later entered into evidence and shown at trial. In November 2013, Allen hired his own surveyor, Donald Rowe, who completed his survey in December 2013.

         ¶10. On December 23, 2013, ALR and MKAZ filed suit to quiet and confirm title against the Croniers and their granddaughter, asserting their claim to the disputed ten acres by adverse possession. They requested the court establish the property's boundary lines as set forth in the Moody survey, which was attached to their complaint.

         ¶11. In July 2014, the Rainwaterses again visited the property and claimed the Croniers or their agents had erected new gates and barbed-wire fencing around the eighty acres, using the legal description in the warranty deed for the boundaries, not the old markers on the western side. Accordingly, the Rainwaterses amended their complaint against the Croniers to include trespass, compensatory and punitive damages, and attorney fees. The compensatory damages were for the cost of removing the new gates and fencing.

         ¶12. Before trial, the court and counsel viewed the property firsthand. A two-day bench trial began in September 2015, and continued in January 2016. Surveyors Rowe and Moody provided expert testimony at trial.

         ¶13. Austin, in his seventies, testified that the property lines in the area were already determined by the Rainwaterses' family fifty or more years ago, and stated that, generally, none of the property sections in Roberts' Neck were exactly 640 acres. His family started buying property in this area of Jackson County in the 1940s. Sixty years ago there was a fence on the western boundary (the eastern boundary of the disputed area) of the Croniers' current property to keep cattle in that parcel. Portions of the fence, although dilapidated, still exist. Austin stated his father dug a firebreak that meandered along the western side of this fence, which had long been considered the eastern boundary of the Rainwaterses' property. Austin also testified that he helped his father harvest turpentine on the disputed area about sixty years ago. His father began performing controlled burns on the property approximately sixty-five years ago. In his youth, Austin always mistakenly assumed the area was his father's property. The road traversing the disputed area is the only access to the Rainwaterses' property lying south of the Croniers' property.[6] Austin explained the Rainwaterses have leased the property to a hunting club for many years, but the Rainwaterses have never lived on the property.

         ¶14. Austin testified that in 1987 his family hired "Mr. Dennis" to mark the boundaries of their property. He used yellow paint to blaze the trees along the boundaries, and kept a map showing the area of the blazes, which was entered into evidence. These blazes were found by both Moody and Moody Jr. along the northern property line. Austin claimed that he showed the old corner markings to Allen prior to Allen's purchase of the property. Further, Moody Jr. testified that Bang pointed out these old corner markers to Allen at the time of the purchase. Allen, however, denied these statements.

         ¶15. Marshall testified that his family had continuously utilized the property since at least 1947. He and his family visited the property at least a couple times a year. He testified the western firebreak was plowed sometime in the 1990s by his father. He corroborated Austin's testimony about the former yellow paint blazes on the trees, the corner markers that had been removed, and the old fence. Moody also testified to the markers' removal. He contended that Allen could have avoided this dispute by having a survey completed before he bought the property.

         ¶16. Rowe testified he saw no evidence of an old fence line, yellow painted blaze marks, or old corner monuments when he performed his survey in December 2013, over a year after the Moody survey. He described the property as "overgrown, " and noted that the firebreaks did not correspond to property lines claimed by the parties. After Rowe marked the property boundaries described by legal ...

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