Burnsed v. Merritt

829 So. 2d 716, 2002 WL 31420786
CourtCourt of Appeals of Mississippi
DecidedOctober 29, 2002
Docket2001-CA-01151-COA
StatusPublished
Cited by3 cases

This text of 829 So. 2d 716 (Burnsed v. Merritt) 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
Burnsed v. Merritt, 829 So. 2d 716, 2002 WL 31420786 (Mich. Ct. App. 2002).

Opinion

829 So.2d 716 (2002)

Robbie R. Eubanks BURNSED, Appellant,
v.
Bill A. MERRITT and Mary Jacqulyn Merritt, Appellees.

No. 2001-CA-01151-COA.

Court of Appeals of Mississippi.

October 29, 2002.

*717 Darryl A. Hurt, Jr., Lucedale, attorney for appellant.

Gerald Alan Dickerson, Lucedale, attorney for appellees.

Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.

BRIDGES, J., for the Court.

¶ 1. Bill A. Merritt and Mary Jacqulyn Merritt own real property in George County, Mississippi, more particularly described as follows, to-wit:

Begin at the Northwest Corner of the Northwest Quarter of the Southeast Quarter of Section 13, Township 1 South, Range 7 West, George County, Mississippi, and thence run South 6 1/4 chains (412 feet) to the POINT OF BEGINNING. Thence run South 6 1/4 chains (412 feet); thence run East 20 chains (1320 feet); thence run North 6 1/4 chains (412 feet); thence run West 20 chains (1320 feet) back to the POINT OF BEGINNING. Containing 12.5 acres, more or less (less 6.5 acres ROW).

¶ 2. Robbie R. Eubanks Burnsed is the record titleholder of the neighboring property located to the south of the Merritts's property. Her mother, Jimmie Nell Eubanks, currently lives on the land, exercising her life estate vested in the property. This land is more particularly described as follows, to-wit:

Commencing at the Southeast Corner of the Northwest Quarter of Southeast Quarter, Section 13, Township 1 South, Range 7 West, George County, Mississippi; thence run North 440 feet; thence run West 577 feet to the POINT OF BEGINNING; thence run West 743 feet; thence run South 440 feet; thence run West 1320 feet to the Northwest Corner of the Southeast Quarter of Southwest Quarter, Section 13, Township 1 South, Range 7 West; thence run South 601 feet to the centerline of the ICG Railroad; thence run in an Easterly direction 1705 feet, more or less, along centerline of said railroad to a point that is South 21 degrees West from the POINT OF BEGINNING; thence run North 21 degrees East 1135 *718 feet, more or less, back to the POINT OF BEGINNING. Containing 27.6 acres, more or less. Being situated in the Southeast Quarter of Southwest Quarter, Northwest Quarter of Southeast Quarter, and Southwest Quarter of Southeast Quarter of said Section 13.

¶ 3. The lands border one another, but the legal descriptions do not depict the properties as touching, leaving a stipulated seventy-five foot discrepancy or hiatus. Both parties referred to this land as "no man's land."

¶ 4. Action began in this case with an order dated August 25, 1999, by the George County Board of Supervisors granting the Merritts a private way of access to their land, apparently across the neighboring land of Burnsed. Burnsed contested the access, causing the board of supervisors to vacate their previous order on August 7, 2000. No appeal was taken of the order; the Merritts filed suit in George County Chancery Court asking the court to establish boundaries and to quiet and confirm their title to the seventy-five foot strip of property in question based upon the doctrine of adverse possession. Burnsed answered and filed her countersuit, seeking to have the court quiet and confirm her title to the seventy-five foot strip of land due to adverse possession by her and her predecessors in title.

¶ 5. The parties stipulated to several facts including the chancellor being able to view the property, that the deed descriptions do not meet causing a seventy-five foot hiatus between the properties and that the issues before the court would be settled by the submission of affidavits to the chancellor in lieu of live testimony. Burnsed, her husband and her mother each submitted an affidavit for consideration while the Merritts submitted one joint affidavit.

¶ 6. The chancellor entered her first judgment on March 13, 2001, dividing the seventy-five feet of property in half, giving the northern thirty-seven and a half feet to the Merritts and the southern half to Burnsed. On March 22, 2001, Burnsed filed a motion for reconsideration or, in the alternative, a new trial, which was overruled except for the court directing a professional surveyor to set the boundaries of the parties. The court entered its final judgment on June 21, 2001, accepting the report and survey by Gerald Moody, dated May 7, 2001.

¶ 7. Burnsed perfected her appeal and comes before this Court citing one issue for review: did the chancellor err in failing to consider the doctrine of adverse possession when she divested the property in question? Finding manifest error, we reverse and remand with respect to the adverse possession of the property. Additionally, we reverse and remand with instructions to have said seventy-five foot strip properly described.

Standard of Review

¶ 8. A determination of a legal boundary is a question of fact for determination by the chancellor. Kleyle v. Mitchell, 736 So.2d 456, 459 (¶ 8) (Miss.Ct.App. 1999). The same standard applies to questions involving the accuracy of surveys. Id. Our scope of review is limited and we will not disturb a chancellor's finding unless we can find that the chancellor committed manifest error. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985).

Legal Analysis

A. Adverse Possession

¶ 9. Under Mississippi law, the burden of proof is on the party asserting adverse possession as the basis for their claim of title. Roy v. Kayser, 501 So.2d 1110, 1111 (Miss.1987). Both parties involved in the case sub judice have asserted *719 to this Court and to the court below that the disputed property is rightfully theirs under the doctrine of adverse possession. As such, each party will have a high burden to meet as proof must establish adverse possession by clear and convincing evidence. Stallings v. Bailey, 558 So.2d 858, 859 (Miss.1990).

¶ 10. There are six essential elements necessary to prevail on a claim of adverse possession. Trotter v. Gaddis and McLaurin, Inc., 452 So.2d 453, 456 (Miss. 1984). Possession must be (1) under a claim of right, (2) actual, (3) open, notorious, and visible, (4) exclusive, (5) continuous and uninterrupted for ten years, and (6) peaceful. Id. Section 15-1-13 of the Mississippi Code provides the legal basis for adverse possession by stating in pertinent part that ten years of actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, shall vest in every actual occupant or possessor of such land a full and complete title. Miss.Code Ann. § 15-1-13 (Supp. 2001).

¶ 11. "The possession must be sufficient to put another on notice, actual or imputable, of an adverse claim to his property. Without such notice, possession will never ripen into title." Trotter, 452 So.2d at 457. Furthermore, mere possession does not satisfy the open and notorious possession requirements. Craft v. Thompson, 405 So.2d 128, 130 (Miss.1981).

¶ 12. Burnsed bases her adverse possession claim on the existence of an old fence. Jimmie Nell Eubanks, Burnsed's mother, testified that the fence was erected prior to 1942, when she and her husband purchased the property. She also testified that she remembered when the fence was constructed, along with the names of the two men who did the building, and that this fence was to serve as the northern boundary for their property.

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Related

Burnsed v. Merritt
38 So. 3d 655 (Court of Appeals of Mississippi, 2010)
Briggs v. Carley
919 So. 2d 109 (Court of Appeals of Mississippi, 2005)

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Bluebook (online)
829 So. 2d 716, 2002 WL 31420786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnsed-v-merritt-missctapp-2002.