BOBBY W. ANDERSON APPELLANT
JERRY FISHER, EDSEL FISHER, WOODLEY D. FISHER AND RAYMOND L. FISHER, AND ALL OTHER PERSON/ENTITIES HAVING OR CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, OR INTEREST IN THE FOLLOWING DESCRIBED PROPERTY: LOTS 29 AND 30 IN SECTION 4, TOWNSHIP 16 NORTH, RANGE 4 EAST; AND LOTS 1 AND 2 IN SECTION 9, TOWNSHIP 16 NORTH, RANGE 4 EAST; LOCATED IN THE SECOND JUDICIAL DISTRICT OF CARROLL COUNTY, MISSISSIPPI APPELLEES
OF JUDGMENT: 04/11/2018
FROM WHICH APPEALED: CARROLL COUNTY CHANCERY COURT, SECOND
JUDICIAL DISTRICT TRIAL JUDGE: HON. JOSEPH KILGORE
ATTORNEY FOR APPELLANT: RICK D. PATT
ATTORNEY FOR APPELLEES: BRYANT WANDRICK CLARK
BARNES, C.J., GREENLEE AND LAWRENCE, JJ.
In 2013, Bobby Anderson filed his complaint to quiet and
confirm title to land located in Carroll County, Mississippi.
At issue was a disputed section of land on the southern
boundary of Lots 29 and 30, which were owned by Anderson, and
the northern boundary of Lots 1 and 2, which were owned by
Jerry, Edsel, Woodley, and Raymond Fisher (collectively
"the Fishers"). Anderson claimed that, based on a
survey completed when he purchased the property, the Fishers
were illegally using the land for their own use. In response,
the Fishers claimed that they owned the property based on
their own survey. The Fishers also counter-claimed that they
owned the property by adverse possession. The chancellor
found that the Fishers were able to prove by clear and
convincing evidence that they owned the land through adverse
possession. We affirm the chancellor's ruling.
On February 22, 2008, Anderson purchased four lots of land
(Lots 27, 28, 29, and 30) in Carroll County, Mississippi.
Directly to the south of Lots 29 and 30, the Fisher family
owned Lots 1 and 2. The subject of this appeal involves a
disputed tract of land at the southern boundary of Lots 29
and 30 and the northern boundary of Lots 1 and 2. The survey
that Anderson received before purchasing the land indicated
that the disputed tract of land was included within the
boundary of Lots 29 and 30. The Fisher family also had a
survey that indicated the disputed land was within the bounds
of Lot 1 and Lot 2.
For decades, the Fishers had used the disputed tract of land
to farm, hunt, and cut timber. Edsel Fisher testified that
the family had also put a road down through the disputed
property long before Anderson owned it. Based on their belief
that the disputed land was included in their property, the
Fishers used flags to indicate their property line. Edsel
testified that these flags were replaced every winter for the
last ten years. The defense took issue with the Fishers'
claim that they flagged their property line because there was
no photographic evidence it ever took place.
Edsel testified that, for the last thirty years before
Anderson filed his complaint, the Fishers had leased the land
for hunting to Mark Berryhill. Berryhill testified that he
had continually leased the property for hunting for
thirty-three years. Berryhill explained that he had
"always known where the property line [was] because [it
was] flagged." To his knowledge, the flags marking the
property line were there for at least fifteen to twenty
Three separate surveys were done that involved the disputed
land. Each were made exhibits at trial. The "Bunch
Survey" was completed in 2002 before Anderson purchased
the property. The Bunch Survey indicated that the disputed
tract of land was within the boundaries of Lot 29 and Lot 30.
The second survey was completed in 2013 at the request of the
Fishers. Joe Sutherland, who completed this survey, testified
that he was able to identify the northeast corner of Lot 1 by
an iron pin. The "Sutherland Survey" indicates that
there was an existing fence behind the property line and that
Sutherland placed an iron pin in the northwest corner of Lot
The Sutherland Survey indicated that the disputed land was
within the boundaries of Lot 1 and Lot 2. Finally, in 2015,
Anderson requested the "Benchmark Survey." Michael
Love, a surveyor for Benchmark Engineering, testified that he
could not find the iron pin that the Sutherland Survey
indicated was in the northeast corner of Lot 1. Love also
testified he could not find the pin that Sutherland set in
the northwest corner of Lot 2. Even though he could not find
the iron pin at the northeast corner, on cross-examination
Love testified he found a "brass cap set in
concrete" in the southwest corner of Lot 2 that was
"[at] the same point [the Sutherland Survey] says he set
an iron pin." The Benchmark Survey indicated that the
disputed land was within Anderson's property.
The obvious discrepancies among all three surveys were
explained at trial. Sutherland testified that Love used a
"State Plane Coordinate" system to do his survey.
This new type of surveying used GPS and other technology that
Sutherland did not use. Although he admitted that the
Benchmark and Bunch surveys placed the disputed land within
Lots 29 and 30, Sutherland testified that the two surveys
were not exactly the same. Sutherland said that he was
confident in his findings that the tract of land was actually
inside of the Fishers' property.
The chancellor stated in his bench opinion that he could see
how there would be a thirty-five foot variance because of the
different methods. Because the issue before the court was
adverse possession, and the chancellor found it to be
dispositive, the chancellor declined to consider which survey
was more credible. After the chancellor considered all of the
evidence and the testimony from the witnesses, he found that
the Fishers owned the property through adverse possession.
It is well settled that, unless the findings were manifestly
in error, clearly erroneous, or the product of an erroneous
legal standard, the chancellor's findings will not be
disturbed. O'Neal v. Blalock, 220 So.3d 234, 239
(¶10) (Miss. Ct. App. 2017). All determinations of the
court's interpretation and application of the law will be
reviewed de novo. Id. (citing Keener Props. LLC
v. Wilson, 912 So.2d 954, 956 (¶3) (Miss. 2005)).
Anderson argues that the chancellor's findings were in
error because the chancellor did not take into consideration
the testimony of the expert witnesses, which he believes
disproves the Fishers' claim of title by adverse
possession. We disagree with Anderson and find that the
evidence at trial supports the chancellor's finding that
the Fishers owned the property through adverse possession.
Mississippi Code Annotated section 15-1-13(1) (Rev. 2012)
Ten (10) years' actual adverse possession by any person
claiming to be the owner for that time of any land,
uninterruptedly continued for ten (10) years by occupancy,
descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in
every actual occupant or possessor of such land a full and
complete title. . . .
order to perfect title by adverse possession, a claimant must
prove by clear and convincing evidence that possession
was "(1) under the claim of ownership; (2) actual or
hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and
(6) peaceful." O'Neal, 220 So.3d at 240
(¶13) (quoting Roberts v. Young's Creek Inv.
Inc., 118 So.3d 665, 669 (¶7) (Miss. Ct. App.
2013)). The burden placed on the claimant is exceedingly
lofty. "Clear and convincing evidence is such a high
standard of proof that even the overwhelming weight of the
evidence does not rise to the same level." Id.
(internal quotation mark omitted) (quoting Massey v.
Lambert, 84 So.3d 846, 848 (¶7) (Miss. Ct. App.
2012)). Arguably, each element for adverse possession
supports the chancellor's decision.
Under the Claim of Ownership
To determine ownership and any claim that the adverse
possessor may have, this Court must consider "whether
the possessory acts relied upon by the would be adverse
possessor are sufficient to fly his flag over the lands and
to put the record title holder on notice that the lands are
held under an adverse claim of ownership."
O'Neal, 220 So.3d at 240 (¶14) (quoting
Hill v. Johnson, 27 So.3d 426, 431 (¶19) (Miss.
Ct. App. 2009)). "[W]ild or unimproved lands may be
established by evidence of acts that would be wholly
insufficient in the case of improved or developed
lands." Id. (quoting Apperson v.
White, 950 So.2d 1113, 1117 (¶8) (Miss. Ct. App.
The chancellor took into consideration that the Fishers had
leased land to Mark Berryhill for hunting. Edsel Fisher
testified that the family had leased the disputed tract of
land to Berryhill beginning in the 1980s. Berryhill testified
that he was aware of the boundaries because of the flagging
and that the Fishers had "always showed [him] where the
line was on every part of the land." Berryhill recalled
that the property had been flagged "at least [fifteen]
to [twenty] years."
The record indicates that the Fishers identified their land
to Berryhill by using flags or ribbons. This, the chancellor
found, was indicative of ownership. Edsel testified that the
property was always kept flagged and that "every winter
they would reflag the line and that they had been doing this
for ten years or so." This was confirmed by Sutherland,
who said he did find old flags along the property line
claimed by the Fishers. Sutherland noticed the flags
"fifteen to twenty years ago."
Anderson, however, argues that the flags the Fishers set out
were not prevalent enough to indicate ownership. At trial and
on appeal, Anderson voiced opposition to the Fishers'
claim of ownership because there were no photographs or
"tangible proof" offered about the flags and
markings on the property. The chancellor took this argument
under consideration but ultimately found the testimony of
Edsel Fisher and Berryhill as credible evidence of the
flags' placement and the Fishers' assertion of
ownership over the land. The chancellor found that the evidence
supported that the Fishers had proved ownership by clear and
Actual or Hostile
For possession of a disputed property to be hostile,
possession must be without permission because
"permission defeats any claim of adverse
possession." Roberts, 118 So.3d at 670
(¶10) (citing Apperson, 950 So.2d at 1118
(¶12)). "Possession is hostile and adverse when the
adverse possessor intends to claim title notwithstanding that
the claim is made under the mistaken belief that the land is
within the calls of the possessor's deed."
Id. (quoting Wicker v. Harvey, 937 So.2d
983-94 (¶34) (Miss. Ct. App. 2006)). Not ...