Jones v. Gresham

963 So. 2d 581, 2007 Miss. App. LEXIS 533, 2007 WL 2366847
CourtCourt of Appeals of Mississippi
DecidedAugust 21, 2007
DocketNo. 2006-CA-00653-COA
StatusPublished

This text of 963 So. 2d 581 (Jones v. Gresham) 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
Jones v. Gresham, 963 So. 2d 581, 2007 Miss. App. LEXIS 533, 2007 WL 2366847 (Mich. Ct. App. 2007).

Opinion

GRIFFIS, J.,

for the Court.

¶ 1. James Abner (“Abner”) and Nora Ruth Gresham (collectively, the “Gres-[582]*582hams”) brought this action to quiet title against their neighbors Alton Lynn (“Lynn”) and Genevieve C. Jones (collectively, the “Joneses”) after a dispute arose as to ownership of a driveway. In the alternative, the Greshams asked for title by adverse possession or for a prescriptive easement. The chancellor held the driveway was part of the Greshams’ property. On appeal, the Joneses argue that the chancellor erred in relying on the Gres-hams’ survey. We find no error and affirm.

FACTS

¶ 2. In 1991, the Greshams purchased an interest in Lot 1221 of the Lake Arrowhead Subdivision in Myrtle, Union County. The next year, the couple bought the remaining interest from their co-tenant. Lot 1221 is located at the end of a cul-de-sac on Lake Breeze Drive. The property is roughly half an acre. It is bounded on the north by Lake Arrowhead, on the east by Lot 1222, on the south by the cul-de-sac, on the southwest by Lot 1219, and on the west by the Lake Arrowhead levee. On the Greshams’ lot is a cabin with a deck. There is also a small pier. The Greshams use the cabin as a vacation home, which they visit a couple of times a month. To the right of the cabin is a gravel driveway (“the disputed driveway”), which runs from Lake Breeze Drive past the Greshams’ cabin, although not all the way to the lake. There are steps from the disputed driveway to the Greshams’ cabin.

¶ 3. At the time the Greshams purchased the land, Lot 1222 was owned by Mary Sue Parrish. Lot 1222 is approximately half an acre, and it is bounded on the north and east by Lake Arrowhead, on the southeast by Lot 1223, on the southwest by the cul-de-sac, and on the west by the Greshams’ lot. There is a separate gravel driveway to the right of the disputed driveway. It is undisputed that this separate driveway belongs to Lot 1222. At the time, the separate driveway led to Parrish’s trailer. There is no longer a trailer or any type of residence on Lot 1222.

¶4. Both driveways fork off from the same point on the cul de sac. Between the two driveways is grass and a group of trees. Parrish and Billy Williams, owner of lot 1223, used the separate driveway. The Greshams used the disputed driveway. Sometimes Parrish and the Greshams would let each other turn around and exit from the others’ driveways. Abner, Parrish’s son, and Williams jointly constructed gates on the driveways. They placed a metal post between the two driveways where they believed the property line lay, and a metal post to the left of the disputed driveway and the right of the separate driveway. From these posts, they attached two separate gates, one leading to each driveway.

¶ 5. In July 2001, the Joneses purchased Parrish’s lot, along with eleven other non-contiguous lots. Lynn removed both gates and had a bulldozer ready to “reconstruct the driveway.” After Abner told him that he could not give him permission to do that, Lynn told the Greshams they had two weeks to get a survey done to prove they owned the driveway. The next day, Lynn constructed a barbed wire fence that ran down the left side of the disputed driveway, all the way down to the lake. This moved the Greshams’ eastern boundary seven feet to the west. It reduced the Greshams’ cul-de-sac frontage, which made it more difficult to get cars in and out of their property. It also prevented the Greshams from driving their truck and boat to the water, because their deck ended only a few feet from the disputed driveway.

¶ 6. The Greshams sued the Joneses to quiet title. The chancellor was provided [583]*583with two competing surveys. The Gres-hams’ expert witness produced his survey and testified the Greshams owned the driveway. The Joneses’ expert witness testified that his survey indicated the Joneses owned driveway. The chancellor relied on the Greshams’ expert and entered a judgment favorable to the Gres-hams. Aggrieved, the Joneses appeal.

STANDARD OF REVIEW

¶ 7. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8).

¶ 8. The chancellor, by her presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses. Howard v. Fulcher, 806 So.2d 328, 332(¶ 15) (Miss.Ct.App.2002). “It is necessarily the case that, when conflicting testimony on the same issue is presented, the chancellor sitting as trier of fact must determine which version he finds more credible.” Id.

ANALYSIS

¶ 9. The sole issue in this case is whether the chancellor erred in relying on one survey over the other. The Joneses argue that the chancellor should not have relied upon the Greshams’ survey because it contained error. The Greshams counter that the chancellor merely made a credibility determination, and there is substantial credible evidence to support her decision.

¶ 10. It is not unusual for a chancellor to be presented with conflicting evidence of a boundary line, including two competing surveys that reach different conclusions. See, e.g., Hulbert v. Fayard, 230 Miss. 1, 5, 92 So.2d 247, 249 (1957); Wicker v. Harvey, 937 So.2d 983, 988-89 (¶¶ 11-16) (Miss.Ct.App.2006). For example, in Hulbert, the Fayards sued the Hulberts to determine where the boundary line between their two properties lay. Hulbert, 230 Miss, at 5, 92 So.2d at 249. The Fayards presented testimony by a survey- or that supported their contention. Id. Likewise, the Hulberts presented a surveyor in support of their contention. Id. at 6, 92 So.2d at 249. The chancellor gave credence to the Fayards’ surveyor and established the boundary line accordingly. Id. at 9, 92 So.2d at 251. The court held the chancellor did not manifestly err. Id. This was because the lines established by the Hulberts’ survey did not conform to the long recognized lines of occupancy nor with the physical objects on the ground. Id. at 10, 92 So.2d at 251. On the other hand, the Fayards’ survey followed closely the lines of occupation which had been accepted for years, followed the calls of the deed, and was made with reference to fixed and established points with more definiteness than the Hulberts’ survey. Id., 92 So.2d at 251-52.

¶ 11. We recently examined a similar issue in Wicker. It involved a land line dispute, and this Court was asked whether a chancellor was bound to accept one party’s evidence over the other party’s evidence. Wicker, 937 So.2d at 991 (¶ 23). The deeds established that the boundary between the neighbors was an old gravel road, that apparently did not exist any more. Id. at 987(¶ 9). Wicker presented lay witnesses and a surveyor who established that the boundary line was at the existing Old Holmesville Road. Id. at [584]*584988(¶ 12), 990(¶ 20). His theory was that the old gravel road was one and the same with the new road. Id. at 990(¶ 20). Harvey presented lay evidence that the old gravel road used to exist south of the new road.

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Related

Wicker v. Harvey
937 So. 2d 983 (Court of Appeals of Mississippi, 2006)
Howard v. Fulcher
806 So. 2d 328 (Court of Appeals of Mississippi, 2002)
Sanderson v. Sanderson
824 So. 2d 623 (Mississippi Supreme Court, 2002)
Hulbert v. Fayard
92 So. 2d 247 (Mississippi Supreme Court, 1957)

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Bluebook (online)
963 So. 2d 581, 2007 Miss. App. LEXIS 533, 2007 WL 2366847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-gresham-missctapp-2007.