Burgess v. Trotter

840 So. 2d 762, 2003 Miss. App. LEXIS 481, 2003 WL 1228090
CourtCourt of Appeals of Mississippi
DecidedMarch 18, 2003
DocketNo. 2001-CA-01098-COA
StatusPublished
Cited by4 cases

This text of 840 So. 2d 762 (Burgess v. Trotter) 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
Burgess v. Trotter, 840 So. 2d 762, 2003 Miss. App. LEXIS 481, 2003 WL 1228090 (Mich. Ct. App. 2003).

Opinion

OPINION ON MOTION FOR REHEARING1

SOUTHWICK, P.J.,

for the Court.

¶ 1. H. Aex Trotter filed a complaint in the Hinds County Chancery Court against adjoining landowners to quiet and remove clouds on title to real property. A counterclaim that their own title be quieted was filed by the defendants, Francis N. Burgess, Sr., Francis N. Burgess, Jr. and Lula Burgess. The chancellor ruled for Trotter on most of the disputed property, and also determined the location of a 140-yard strip of land. The Burgesses appeal. We find that the chancellor’s decision and our initial opinion left undetermined the location of the 140-yard strip. We further conclude that there was substantial proof regarding possible errors in certain deeds in the chain of title. Whether there were errors and, if so, their effect on the location of the 140-yard strip or on the other land was never addressed by the chancellor. Accordingly, we reverse and remand for further proceedings.

[764]*764FACTS

¶ 2. For clarity, a plat is attached to this opinion (exhibit 3 at trial, with a driveway from exhibit 6A added). The current suit has involved parcels 1, 2 and 3 on the plat. In 1997, Francis Burgess, Sr. decided to sell certain property, retaining only his fenced homestead in the northwest corner of the property. After receiving an offer, Burgess had a survey prepared. Burgess would later testify that this was the first time anyone became aware that the legal description of the western edge of certain property that his family had owned since 1927 was about 100 feet east of the old Bolton-Brownsville road bed and not at the road bed itself. Trotter disputed this. He testified that his family always knew that the boundary was east of the old road.

¶ 3. Burgess attempted to purchase a quitclaim deed on the disputed property from Trotter, but Trotter declined. Burgess then filed an adverse possession suit. Trotter filed no counter-claim. On September 11, 1998, the Hinds County Chancery Court dismissed the claim due to the Burgesses’s failure to prove exclusive use. Instead, the chancellor found that both parties had been using the property. Thereafter, on May 12, 1999, Trotter filed the present complaint against the Burgess-es to confirm title and remove clouds. The Trotters claimed all of the NW 1/4 of SW 1/4 of the relevant section, arguing that the Burgesses owned nothing within that 40-acre tract. The defendants filed a counter-claim to quiet their own title to about six acres in the same quarter-quarter section.

¶4. There are two title issues to be resolved in the suit. One is the location of an ambiguously described tract of land first conveyed in 1941 after the public road in this area was shifted to the west. The other is ownership of land adjacent to the old road, an issue that arises because of one party’s evidence, disputed by the other, that the historical descriptions of this property were based on a mistake about the location of the public road in relation to the dividing line between the NW 14 of the SW 14 and the NE 14 of the SW % On the exhibit to the opinion, parcel 1 is the surveyed location of the easternmost 2.5 acres in the NW 14 of the SW 14. There was contested evidence that the community had operated with the understanding that the east line of the quarter-quarter section was farther west than the survey found. This view promoted the thesis that the 2.5 acre tract was conveyed to the Burgesses in 1927 to allow the property that they owned to the east to connect with the old road. The modern surveys insist that obtaining the eastern 2.5 acres only got the Burgesses closer to the road but did not reach it. The 1927 deed to the 2.5 acre tract also conveyed the 2.5 acres immediately south, such that a narrow 5-acre strip was conveyed parallel to the road that ran generally north and south throughout the W 14 of the SW 14 of the section. The Burgesses owned everything immediately to the east of that 5-acre strip.

¶ 5. Trotter’s failure in his complaint to acknowledge the 1927 deed to the Bur-gesses of the easternmost 2.5 acres in the 40 acres that Trotter claims has been rectified. The Burgess title to that tract (parcel 1 on the plat) is no longer contested. What remains is determining title to about 4 acres of land. A decision must be reached without the element of meaningful possession by either party. The former suit in which the Burgesses were found not to have possessed adversely any of the property is not res judicata at least as to the record title issues. Whether res judicata applies to any contested matter in the present litigation will be discussed below.

[765]*765¶ 6. According to the deeds introduced into evidence, over ninety years ago the Trotter family became the record title holder of the NW % of the SW % of the section. The Burgesses became the record title holders of the 2.5 acres on the east side in 1927, and also own contiguous property to the east and south. Into this ownership was injected in about 1939 the moving of the Bolton Brownsville Road west of its former location in the NW % of the SW %. The old road ran essentially due north and south; the new road has more curvature. As indicated above, it is unclear whether the Burgesses, by owning the easternmost 2.5 acres, were thought to own everything east of the old road and the Trotters everything that was west. The understood state of ownership would help explain the intent of a 1941 deed executed by plaintiff Trotter’s grandparents to the father of defendant Francis Burgess, Sr. The deed conveyed this land:

A narrow strip of land, approximately 140 yards long, lying between the old and new Bolton and Brownsville Highway, and adjoining the land now owned by said A.L. Burgess, and being in the west half of the southwest quarter of Section 20, Township 7 in Range 2 West, containing one acre more or less.

Trotter argued below that this was a void description, but on appeal he concedes that the Burgesses received something by this deed. There is not a definite 140-yard tract of land between the old and new roads, no matter how the tract is configured. Thus, this suit, this appeal, and this rehearing.

¶ 7. The Burgesses claim that the 140-yard dimension was intended to run north and south between the two roads. By making the northern boundary of the tract the same as the northern boundary of the NW % of the SW % and the southern boundary an old fence, a 1.33 acre tract results. However, according to a survey admitted into evidence, this would make the strip of land approximately 700 feet in length, 156 feet wide at the southern end and 45 feet wide at the northern. None of those dimensions are close to the 140 yards (420 feet) mentioned in the deed.

¶ 8. In addition to the deed with ambiguous language, the Burgesses also claim that they acquired this strip of land, plus all the land east of the old road bed, through continuous and exclusive use.

¶ 9. To the contrary, Trotter claims that the western boundary line of the east 2.5 acres was never thought to be at the old road bed. That would mean that the Burgess family has never had frontage on the road, old or new, nor until the 1941 deed even had formal right of access. If the Burgesses before 1941 had accessed the old road where it crossed through this forty acre tract, it had been only by the Trotter’s sufferance. Instead, Trotter claims that the 140-yard strip is basically a roadway that runs east from the new Bolton and Brownsville road to the Burgess property.

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Related

Francis N. Burgess, Sr. v. H. Alex Trotter
269 So. 3d 284 (Court of Appeals of Mississippi, 2018)
PRECISION COMMUNICATIONS, INC. v. Hinds County
74 So. 3d 366 (Court of Appeals of Mississippi, 2011)
Estate of Burgess Ex Rel. Burgess v. Trotter
6 So. 3d 1109 (Court of Appeals of Mississippi, 2008)

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Bluebook (online)
840 So. 2d 762, 2003 Miss. App. LEXIS 481, 2003 WL 1228090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-trotter-missctapp-2003.