Apperson v. White

950 So. 2d 1113, 2007 WL 656847
CourtCourt of Appeals of Mississippi
DecidedMarch 6, 2007
Docket2005-CA-01516-COA
StatusPublished
Cited by17 cases

This text of 950 So. 2d 1113 (Apperson v. White) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apperson v. White, 950 So. 2d 1113, 2007 WL 656847 (Mich. Ct. App. 2007).

Opinion

950 So.2d 1113 (2007)

Cathy P. APPERSON and Michael D. Pierce, Appellants
v.
John L. WHITE and Suzanne B. White, Appellees.

No. 2005-CA-01516-COA.

Court of Appeals of Mississippi.

March 6, 2007.

*1115 Steven D. Settlemires, Philadelphia, attorney for appellants.

Marvin E. Wiggins, Jr., attorney for appellees.

Before MYERS, P.J., CHANDLER and ROBERTS, JJ.

MYERS, P.J., for the Court.

¶ 1. Cathy P. Apperson and Michael D. Pierce appeal the judgment of the Chancery Court of Kemper County which awarded John and Suzanne White title to a disputed 8.2 acre tract of land by virtue of adverse possession. Apperson's and Pierce's appeal raises the following two issues:

I. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT THE WHITES HAD ACQUIRED TITLE TO THE DISPUTED PROPERTY BY ADVERSE POSSESSION?
II. WHETHER THE CHANCELLOR ERRED BY FAILING TO CONSIDER TESTIMONY AND OTHER EVIDENCE PRESENTED AT TRIAL ON BEHALF OF APPERSON AND PIERCE?

¶ 2. Finding no error, we affirm the judgment of the Chancery Court of Kemper County.

STATEMENT OF THE FACTS

¶ 3. The parties in this case are adjoining landowners in Kemper County, Mississippi. Pierce's property is located immediately adjacent to Apperson's property, and Apperson's property is located immediately adjacent to the Whites' property. No overlapping of the legal descriptions of the parcels of property owned by the respective parties exists, and it is clear from the descriptions that, prior to the Whites' adverse possession, Apperson and Pierce shared legal title to the disputed parcel. In fact, no dispute over the boundary line arose between the parties until Apperson and Pierce discovered that the Whites had clear-cut timber up to an old barbed-wire fence running at a southwest to northeast diagonal across the southeast corner of the parcel of property owned by Apperson, and extending marginally into the southeast corner of the parcel of property owned by Pierce. The Whites clear-cut the timber from the disputed parcel from 1995 until 1996, but their actions went undiscovered until September 2001, when Apperson consulted a timber cruiser about clearing her property. After the timber cruiser informed Apperson that the trees had already been removed from the parcel now in dispute, she obtained a land survey from Tom Turner, in January 2002, showing an encroachment of approximately 8.2 acres. Apperson, joined by her brother and adjoining landowner Pierce, then commenced this action on September 17, 2002, by filing a complaint to quiet title against John and Suzanne White. The Whites defended the action by asserting adverse possession over the disputed property. After reviewing the land descriptions and chains of title, studying the survey commissioned by Apperson and ariel photographs of the property, visiting the property in question, and hearing three days of testimony on behalf of the parties, the chancellor issued a written opinion dated June 7, 2005, wherein he found the Whites to have brought forth sufficient evidence to support their claim of adverse possession, and accordingly awarded the Whites title to the 8.2 acre parcel of land.

*1116 LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT THE WHITES HAD ACQUIRED TITLE TO THE DISPUTED PROPERTY BY ADVERSE POSSESSION?

¶ 4. Apperson and Pierce argue that the Whites failed to meet their burden of proof on the elements of adverse possession and that the chancellor erred in awarding the Whites title to the disputed property. This assignment of error is essentially a challenge to the chancellor's findings of fact and conclusions of law, and urges this Court to find the chancellor's judgment in error. However, our appellate review of the chancellor's decision is limited. "This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Sanderson v. Sanderson, 824 So.2d 623, 625-26, (¶ 18) (Miss. 2002).

¶ 5. One may acquire property legally titled in another through an action to quiet title and after having established by clear and convincing evidence the elements of adverse possession, found in Mississippi Code Annotated section 15-1-13 (Rev. 2003)[1] and articulated by our supreme court in Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992), before a chancery court of proper jurisdiction. The Rice court adopted a six-part test for determining whether adverse possession has occurred, and that test has been applied by this Court as follows: "for possession to be adverse it must be (1) under 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." Walker v. Murphree, 722 So.2d 1277, 1281(¶ 16) (Miss.Ct.App.1998) (citing Rice, 611 So.2d at 871).

1. Under Claim of Ownership

¶ 6. Apperson and Pierce first challenge the evidence in support of the Whites' claim of ownership over the disputed parcel. The primary evidence Apperson and Pierce point to in support of this challenge is that Apperson paid the property taxes on the disputed parcel, Apperson's son occasionally hunted on the disputed parcel, and that Apperson's and Pierce's father had periodically raised cattle and thinned timber on the disputed parcel. First, the payment of property taxes is but one factor for the chancellor to consider, and is not conclusive of ownership. Buford v. Logue, 832 So.2d 594, 602(¶ 22) (Miss.Ct.App.2002). Second, in Apperson's and Pierce's own brief, they recognize that sporadic or occasional pasturing of cows and cutting of timber is insufficient to support a claim of adverse possession. Davis v. Clement, 468 So.2d 58, 63 (Miss.1985). Finally, while the testimony presented on behalf of Apperson and Pierce may show an occasional use of the property by Apperson and Pierce, or their predecessors in interest, it does not address the Whites' use of the property.

¶ 7. The deficiency in Apperson's and Pierce's argument is that it focuses on Apperson's and Pierce's actions of dominion and control over the property, rather than evaluating whether the actions of the Whites, as adverse possessors, were sufficient to provide notice of the Whites' claim *1117 of ownership over the property. The essential question the chancellor was to answer was not whether the possessory acts of Apperson and Pierce were sufficient to provide notice of a claim of ownership, but rather, whether the Whites' possessory acts were sufficient to "fly their flag over the property" and put Apperson and Pierce on notice that the land was being held under an adverse claim of ownership. Walker, 722 So.2d at 1281(¶ 16). The possessory acts of Apperson and Pierce, as title owners of the property, are immaterial to this analysis. Thus, our review focuses on the possessory acts of John and Suzanne White, if any, in an attempt to determine whether Apperson and Pierce were sufficiently placed on notice of the Whites' claim of ownership over the disputed parcel.

¶ 8. When determining whether the Whites undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Id.

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Bluebook (online)
950 So. 2d 1113, 2007 WL 656847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apperson-v-white-missctapp-2007.