Hoover v. Callen

134 So. 3d 828, 2014 WL 1192772, 2014 Miss. App. LEXIS 166
CourtCourt of Appeals of Mississippi
DecidedMarch 25, 2014
DocketNo. 2012-CA-01602-COA
StatusPublished

This text of 134 So. 3d 828 (Hoover v. Callen) 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
Hoover v. Callen, 134 So. 3d 828, 2014 WL 1192772, 2014 Miss. App. LEXIS 166 (Mich. Ct. App. 2014).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. Tim Hoover filed a complaint against George Wayne Callen (George) and Nelta Jean Callen (Nelta Jean) in the [830]*830Warren County Chancery Court, claiming that he acquired a portion of the Callens’ property through adverse possession or, alternatively, that he is entitled to an easement by necessity on their property. The chancery court denied both of Hoover’s claims. Feeling aggrieved, Hoover appeals and argues that the chancellor erred in determining that he did not adversely possess the disputed property and in not granting him an easement by necessity.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Callens are the owners of a parcel of land that adjoins the eastern and southern borders of Hoover’s land. Hoover claims that he has lived on his property with his family since the 1970s.1 He testified that he and his brother Mayo built a fence in 1973 or 1974, which they considered the boundary line between their property and the Callens’ property. He further testified that, twelve to fifteen years prior to the trial of this matter, he was present when Mayo installed a field line for a waste disposal septic system. The field line extended from the southern portion of the Hoovers’ land onto the Cal-lens’ land, allowing sewage from the Hoovers’ property to run underground onto the Callens’ property. Hoover claims that he never discussed the field line with George, and George never made a complaint to him regarding the field line. However, without consulting Hoover, George dug up the portion of the field line that was on the Callens’ property. According to George, who testified after Hoover, Hoover sought to purchase that portion of the Callens’ property that contained the field line, but George refused to sell it. Hoover admits that around the time George dug up the field line, George also constructed a fence that “cut through [Hoover’s] yard” and “tore out” the fence that Hoover and Mayo had constructed, excluding Hoover from the pasture in question where the field line ran.

¶ 4. Hoover claims that before George built the fence, Hoover cut the grass and kept trailers and a “four-wheel drive” in the pasture in question. He further claims that he has had continuous use of the pasture since 1973 and has never asked the Callens for permission to use the pasture because it was his property.

¶ 5. George testified that he and his wife, Nelta Jean, moved onto their property in 1974. At that time, Mayo lived on the property that Hoover lives on currently. George testified that after Mayo moved onto that property, there was trouble with Mayo’s septic system, and Mayo asked George if Mayo could install a field line that would extend onto the Callens’ property. George claimed that he gave Mayo permission to lay the field line, and that he and Mayo verbally agreed in the early 1980s that if there were any problems with the field line being on the Cal-lens’ property, Mayo would fix or remove it. George also claimed that problems arose with the field line when Hoover moved onto Mayo’s property after Mayo died. George stated that he went to Hoover and asked him what he was going to do to remedy the problem with the system. Hoover got angry and told George to get off of his property. After Hoover did not do anything to fix the field line, George dug up the field line and placed it on [831]*831Hoover’s property. Also, around 2008, George erected a fence on the property line separating Hoover’s property and the Callens’ property. He denied that Mayo constructed a fence on the Callens’ property in the 1970s or any other time.

¶ 6. George testified that he constructed a fence for his horses in 2002, but the fence was not constructed on the property line separating the Callens’ property from Hoover’s property. Rather, the fence was constructed within the boundaries of the Callens’ property, and George would mow the grass from the outside of the fence up to the property line. George stated that Hoover asked for permission to put several items in the pasture, including horse trailers and cattle panels. George granted him permission to put those items there. George further stated that Hoover had a truck in the pasture at one point, but did not have permission to put the truck on the property. At George’s request, Hoover removed the horse trailer and cattle panels from the pasture, but refused to. move his truck, even after the police asked him to do so. George stated that he had Hoover’s truck towed and placed on Hoover’s property.

¶ 7. Bobby Carpenter, a civil and environmental engineer expert, testified that he visited Hoover’s property at least five times. He testified that the underground field line that was running on the Callens’ property appeared to be “backed up” and “ponding” because “it wasn’t enough field line to — and soil area to allow [the sewage] to soak in the soil the way it should.” Carpenter opined that there was not enough room in the backyard area of Hoover’s property alone for an underground system. He recommended a chamber system that costs approximately $5,000, which could be put solely on Hoover’s property. He also recommended a drip system, even though it was more expensive at $15,000 and was high maintenance.

¶ 8. Ann Hogue, a district supervising environmentalist for Mississippi, testified that, based on the soil samples that were collected on the Callens’ property, the pasture in question is not suitable for a field line for a septic system, and that the health department would not approve of an underground septic line in that area. She stated that a drip-irrigation system, which starts at about $8,000, would most likely fit on Hoover’s lot.

¶ 9. John Callen (John), George’s brother, testified that he had lived adjacent to George since 1978. He stated that there had never been a fence between Hoover’s and the Callens’ properties until the Callens built a horse fence. To John’s knowledge and observation, Hoover never exercised control and dominion over the pasture in question. David Wrigley testified that he baled hay for the Callens from approximately 1979 to 1990. He stated that there was never a fence on the Hoovers’ property.

¶ 10. Nelta Jean testified that the horse fence was built in 2002 to restrain their horses and was not intended to serve as a property line between their property and Hoover’s property. She stated that she wanted the fence far enough away from the property line so that her husband would have enough room to cut and bush hog outside of the fence without getting on Hoover’s property. She further testified that there were property markers along the property line that George had placed there when the Callens first moved on the property. Nelta Jean showed the “property markers” to the person who erected the horse fence so that they could measure how much room to leave between the property line and the horse fence. She stated that after the conflict arising from the septic system, someone removed the prop[832]*832erty markers, but the Callens had a survey done to re-establish the property boundaries.2 Once the property line was reestablished, George removed the horse fence and constructed a new fence along the property line. Nelta Jean testified that prior to the construction of the fences, Mayo had asked if he could put a line from his septic tank on their property because the one he had was not sufficient and was “bubbling up.” The Callens granted him permission.

¶ 11.

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Cite This Page — Counsel Stack

Bluebook (online)
134 So. 3d 828, 2014 WL 1192772, 2014 Miss. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoover-v-callen-missctapp-2014.