ALLEN L. CRONIER AND WIFE, JANICE STORK CRONIER, AND VICTORIA LYNN CRONIER, A MINOR BY AND THROUGH HER PARENT AND NEXT FRIEND, DERRICK CRONIER APPELLANTS
ALR PARTNERS L.P., AN ALABAMA LIMITED PARTNERSHIP, AND MKAZ PARTNERSHIP L.P., AN ALABAMA LIMITED PARTNERSHIP APPELLEES
OF JUDGMENT: 04/04/2016
COUNTY CHANCERY COURT, HON. JAYE A. BRADLEY TRIAL JUDGE
ATTORNEY FOR APPELLANTS: SCOTT CORLEW.
ATTORNEY FOR APPELLEES: E. FOLEY RANSON.
LEE, C.J., BARNES AND CARLTON, JJ.
Allen Cronier appeals the judgment of the Chancery Court of
Jackson County, which found, after a bench trial, that the
Rainwaterses 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.
OF FACTS AND PROCEDURAL HISTORY
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,
The property is located in an area locals refer to as
"Roberts' Neck, " 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."
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.
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.
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. 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.
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.
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.
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
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.
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.
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.
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.
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. Austin explained the
Rainwaterses have leased the property to a hunting club for
many years, but the Rainwaterses have never lived on the
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
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.
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 ...