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Anderson v. Fisher

Court of Appeals of Mississippi

December 3, 2019

BOBBY W. ANDERSON APPELLANT
v.
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

          DATE OF JUDGMENT: 04/11/2018

          COURT 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

          BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

          LAWRENCE, J.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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.

         ¶4. 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 years.

         ¶5. 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 2.[1] 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.

         ¶6. 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.

         ¶7. 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.

         STANDARD OF REVIEW

         ¶8. 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)).

         ANALYSIS

         ¶9. 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.

         ¶10. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

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. . . .

         In order to perfect title by adverse possession, a claimant must prove by clear and convincing evidence[2] 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.

         I. Under the Claim of Ownership

         ¶11. 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. 2007)).

         ¶12. The chancellor took into consideration that the Fishers had leased land to Mark Berryhill for hunting.[3] 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."

         ¶13. 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."

         ¶14. 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.[4] The chancellor found that the evidence supported that the Fishers had proved ownership by clear and convincing evidence.

         II. Actual or Hostile

         ¶15. 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 (ΒΆ34) (Miss. Ct. App. 2006)). Not ...


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