Burch v. Hillman

525 So. 2d 396, 1988 Miss. LEXIS 245, 1988 WL 42608
CourtMississippi Supreme Court
DecidedMay 4, 1988
DocketNo. 57608
StatusPublished
Cited by1 cases

This text of 525 So. 2d 396 (Burch v. Hillman) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burch v. Hillman, 525 So. 2d 396, 1988 Miss. LEXIS 245, 1988 WL 42608 (Mich. 1988).

Opinion

GRIFFIN, Justice, for the Court:

This is a land line dispute. We are of the opinion that the evidence supports the findings of the chancellor, and in view of our usual degree of deference to the findings, we will not disturb on appeal. To say the least, he was not manifestly wrong. Thompson G. Daniel v. The Snowdown Association, 513 So.2d 946 (Miss.1987); City of Greenville v. Farmers Inc., et al., 513 So.2d 932 (Miss.1987); Gulf National Bank v. David Sturtevant, 511 So.2d 936 (Miss.1987).

As the style of the matter reflects, the chancellor agreed with the contention of the appellee as to the line between the litigants and awarded a $1,450 judgment against both appellants and a separate judgment against Carolyn Ball Graves in the sum of $3,000. The evidence on which the chancellor made his findings is recited as follows:

On August 23,1974, Aden Ball conveyed land, located in Greene County, to his daughters, Carolyn Ball Graves and Zelene Ball Burch, described as follows:

[397]*397Begin at a point where Big Creek intersects the section line between Sections 7 and 12, Township 1 North, Range 6 West, Greene County, Mississippi, and run thence due South 1200 feet, thence run East to the West boundary of Big Creek, thence run Northwesterly along the meanderings of Big Creek to the point of beginning.

On September 3, 1974, Aden Ball conveyed an adjacent tract to his sons, Olen Ball and Roger Lee Ball, described as follows:

Begin at a point where Big Creek intersects the section line between Sections 7 and 12, Township 1 North, Range 6 West, Greene County, Mississippi, and run thence due South 1200 feet to and for the point of beginning, thence run East to the West boundary of Big Creek, thence run Southerly along the meanderings of Big Creek to where said Big Creek intersects with the Chickasawhay River, thence run Southwesterly along the West boundary of Chickasawhay River to where it intersects the section line between Sections 7 and 12, run thence due North to the point of beginning.

In this deed, Aden Ball reserved a life estate, described as follows:

Begin at a point where Big Creek intersects the section line between Sections 7 and 12, Township 1 North, Range 6 West, Greene County, Mississippi, and run thence due South 1200 feet to and for the point of beginning, thence run East for a distance of 300 feet, thence run South for a distance of 300 feet, thence run West for a distance of 300 feet, thence run North for a distance of 300 feet back to the point of beginning.

A dispute then arose between Aden’s children, concerning the boundary between the two tracts. Carolyn and Zelene claimed that Aden had marked the boundary with a stump in 1974, having previously measured 1200 feet from Big Creek. Yet, in “late October or November of 1980,” Olen and Roger Lee repeatedly moved a post, marking the boundary, finally placing it 115 feet north of the true line.

Afterwards, on April 4, 1981, Aden Ball, Olen Ball, Betty Ball and Roger Lee Ball conveyed their interests to Murdick Hill-man and Barbara Hillman, his wife, in a deed, which read,

TOWNSHIP 1 NORTH, RANGE 6 WEST
Section 7: All that part of the West Half (W ½) lying and being West of Big Creek and North and West of Chicka-sawhay River, LESS AND EXCEPT THEREFROM a parcel of land described as beginning at a point where Big Creek intersects the section line between Sections 7 and 12 of Township 1 North, Range 6 West, Greene County, Mississippi, and run thence due South 1200 feet; thence run East to the West boundary of Big Creek; thence run Northwesterly along the meanderings of Big Creek to the point of beginning.

Four months later, when Hillman attempted to erect a fence along the “new” line, hostilities erupted between Hillman and Aden’s daughters, who claimed a boundary 115 feet south of his fence.

Several witnesses dispute this account. For example, Murdick Hillman testified that in the “early seventies,” Aden Ball had set a “big creosoted post” to divide Carolyn and Zelene’s land from Olen and Roger Lee’s land. Later, a steel rebar, set in concrete, replaced the wooden post at the same location. When Hillman later purchased the tract, Aden again stated that the rebar marked the boundary.

On January 10, 1981, Herbert Nobles, a friend of the Balls, signed a sworn statement, which read,

I, H.R. Nobles, do solmely [sic] sware [sic] in the month of November, 1980, that I and Olen Ball and Aden Ball did dig a hole and fill with gravel and drive a rod in place where the existing comer has been to my knowledge since 1975. On the west section line of Section 7-T-1N-R-6W, Green [sic] County and between Zelene Burch, James Ball, Carolyn Graves, A.G. Ball, Verna Cook Ball on the north and Olen Ball, Aden Ball and Roger Ball on the South.

[398]*398/S/ H.R. Nobles 1-10-81.

Likewise, Richard Flynt, a registered land surveyor, testified that Aden Ball had identified the rebar as the boundary on February 10,1981. Greene County Sheriff Tommy Miller, also present on February 10, 1981, testified that Aden Ball had referred to the rebar as the boundary.

Finally, although now complaining that he was “soused up” at the time, Aden Ball signed a sworn statement on February 10, 1981, witnessed by his sons, Olen and Roger Lee, Hillman, Nobles, Flynt, and Miller, which read,

I Aden Ball being of sound mind do swear that the rebar shown to and located by Richard Allen Flynt registered land surveyor # LS-1762 in his field book on page # 1 dated and initialed on February 10th 1981 is in the exact same place which I had marked and intended to be the dividing point in the north-south direction between Zelene Burch, [obliterated], Carolyn Graves, [obliterated] on the north and Olen Ball, Aden Ball (myself) and Roger Ball on the south, when I divided and deeded my property in Section 7, TIN, R6W, Green [sic] County, Miss, in September of the year 1974. Dated, signed, and witnessed 9:45 2/10/81.

/S/ Aden Ball.

Under the terms of the deed, Carolyn and Zelene were to receive a tract of land, extending 1200 feet south of Big Creek along the section line. Flynt found the rebar 1195 feet south of Big Creek’s center and 9.43 feet west of the section line. Guy Walker, who surveyed the land on August 23,1984, three and one-half years after the Flynt survey, found the rebar 1084.41 feet from the creek’s bank, which Aden Ball suggested as the point of origin. Consequently, Walker placed the boundary 115.-59 feet south of the rebar.

Appellants assign as error, the finding that the “North and South dividing line” between Murdick R. Hillman and Barbara P. Hillman (appellees) and Zelene Ball Burch and Carolyn Ball Graves (appellants) is a point marked by an iron pin or rebar 2295 feet South of the Northwest Comer of Section 7, TIN, R6W, Greene County, Mississippi, and the award of damages.

The legal description of the land conveyed from Aden Ball to his daughters, Carolyn and Zelene, originates where Big Creek crosses the section line.

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Bluebook (online)
525 So. 2d 396, 1988 Miss. LEXIS 245, 1988 WL 42608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burch-v-hillman-miss-1988.