Wicker v. Harvey

937 So. 2d 983, 2006 WL 2599140
CourtCourt of Appeals of Mississippi
DecidedSeptember 12, 2006
Docket2005-CA-00596-COA
StatusPublished
Cited by26 cases

This text of 937 So. 2d 983 (Wicker v. Harvey) 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
Wicker v. Harvey, 937 So. 2d 983, 2006 WL 2599140 (Mich. Ct. App. 2006).

Opinion

937 So.2d 983 (2006)

Dwight F. WICKER, Appellant
v.
James Ford HARVEY, Appellee.

No. 2005-CA-00596-COA.

Court of Appeals of Mississippi.

September 12, 2006.

*986 Irving Conrad Mord, attorney for appellant.

Gene Horne, Centreville, attorney for appellee.

Before MYERS, P.J., IRVING, CHANDLER and ROBERTS, JJ.

CHANDLER, J., for the Court.

¶ 1. This boundary line dispute involves dueling claims for an approximately ten-acre parcel of land situated in Walthall County. The case commenced on July 8, 2002, when James Ford Harvey filed a complaint in the Chancery Court of Walthall County seeking to enjoin Dwight F. Wicker from trespassing upon Harvey's property. Harvey prayed for damages and also requested that the court establish the boundaries of the land at issue. On July 31, 2002, Wicker answered and moved to dismiss the complaint, asserting that he was a bona fide purchaser for value without notice.

¶ 2. At a hearing on January 19, 2005, both Harvey and Wicker sought to establish their ownership of the subject property. In a final judgment entered on February 7, 2005, the chancellor found that Harvey owned the property as the record title holder or, alternatively, through adverse possession. Wicker appeals, arguing that the chancellor's findings were based on an erroneous application of the law and were manifestly erroneous.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. The approximately ten acres at issue are situated south of Old Holmesville Road in the northwest quarter of the northwest quarter of Section 25, Township 3 North, Range 9 East in Walthall County. Old Holmesville Road runs east-west through the quarter-quarter section. North of Old Holmesville Road is Leatherwood Creek, which runs roughly east-west through the area. To the east of the quarter-quarter section, Old Holmesville Road intersects with Saint Paul Road. Near that intersection is the former site of Smyrna Church, which was torn down after 1951.

¶ 5. The chancellor found that the land at issue was part of a 426-acre parcel of timber land, the history of which is related below. On December 14, 1960, Edward Harvey by warranty deed conveyed the 426-acre parcel to Harvey's father, Melba L. Harvey, Sr. and Nathaniel Presley Chesnut. On March 26, 1973, Chesnut conveyed his undivided interest in the 426 acres to W.E. Parks Lumber Company, Inc. On April 13, 1973, W.E. Parks Lumber Company quitclaimed its interest in the parcel to Melba L. Harvey, Sr., who harvested timber from the property to finance the purchase. Melba L. Harvey, Sr. died on October 29, 1985, and his three children, James Ford Harvey, Melba L. Harvey, Jr., and Rosemary Harvey Jackson, acquired the parcel and other property by devise. On November 30, 1987, James, Melba, and Rosemary executed a timber deed conveying certain timber to Southern Lumber Company, Inc. The deed embraced the 426-acre parcel as well as other timber land.

¶ 6. On October 31, 1995, a final decree closing the estate of Melba L. Harvey, Sr. was recorded. The decree found the three children to be Melba L. Harvey, Sr.'s sole heirs and devisees, and declared them to be owners as equal tenants in common of *987 the 5,700 acres of land and mineral interests which Harvey, Sr. had owned in Mississippi at the time of his death. On April 22, 1998, the three children executed a deed of exchange whereby they divided and conveyed to each other various tracts of land. The parties conveyed the 426-acre parcel to James Harvey, the appellee. The deed of exchange was recorded in Walthall County on May 26, 1998.

¶ 7. All of the aforementioned documents were admitted into evidence. Each deed, save the timber deed, shows that the deed was recorded in the Deeds of Conveyance Records Book of Walthall County. Each deed contained the same legal description of the 426 acres. That legal description included the following property involved in this appeal: "all that part of north half of northwest quarter south of Tylertown-Holmesville public road, less that part south of Smyrna and Letherwood Creek gravel road, 32 acres, more or less, Section 25, Township 3 North, Range 9 East. . . ." Testimony at the hearing established that the Tylertown-Holmesville Public Road is the paved public road that is currently named Old Holmesville Road.

¶ 8. On January 20, 1936, Cleon Magee acquired the southwest quarter of the northwest quarter of Section 25, Township 3 North, Range 9 East. On August 28, 1943, Magee bought adjoining property from George and W.W. Vaught. The Vaughts conveyed to Magee:

All that part of the North West Quarter of North West Quarter (NW 1/4 of NW 1/4) Section 25, Township 3 North, Range 9 East that lying and being south of the Smyrna and Leather Wood Creek Gravel Road as said Road now runs through said forty, containing three acres, more or less.

The Magee purchases totaled approximately forty-three acres. On July 3, 1980, Cleon Magee's widow, Laurance O. Magee, executed an oil, gas, and mineral lease of the Magee property, including the above described property. All these conveyances were recorded. Wicker, the appellant, bought the Magee property from Laurance Magee on February 11, 2002. More concerning that purchase will be related below.

¶ 9. As written, the legal descriptions in the Harvey and Magee deeds appear to be harmonious. According to their language, Harvey owns certain property extending from the Tylertown-Holmesville (now Old Holmesville) Public Road south to the Smyrna and Leatherwood Creek Gravel Road, and Magee owned "three acres, more or less" south of the Smyrna and Leatherwood Creek Gravel Road. The deeds establish the Smyrna and Leatherwood Creek Gravel Road as the south boundary of the Harvey property and as the north boundary of the Magee property. Unfortunately, the Smyrna and Leatherwood Creek Gravel Road could not be located or its past existence confirmed, giving rise to this litigation.

¶ 10. In late 2001, Laurance Magee listed the Magee property for sale with real estate broker Doug Rushing; Alan Bridevaux was the listing agent. Bridevaux obtained the listing from Laurance Magee's attorney because Laurance was no longer handling her own affairs. Rushing placed an advertisement in a local newspaper representing that the Magee property consisted of fifty-one acres abutting Old Holmesville Road. Harvey saw the advertisement. Either Harvey or his business associate, William Bridges Netterville, notified Rushing that the Magee property did not abut Old Holmesville Road because Harvey owned land lying between Old Holmesville Road and the northern boundary of the Magee property. Harvey had leased this and other land to a hunting club. Rushing testified that a hunting club member told *988 him that an old road formed the southern boundary of the Harvey property. Rushing went upon the property three or four times, but never saw any evidence of an old road. He further testified that the tax assessment map showed that the Magee property extended all the way to Old Holmesville Road.

¶ 11. Rushing testified that, when Wicker became interested in buying the Magee property, he advised Wicker to obtain a survey due to the boundary line problem. Rushing arranged for Bracey Land Surveying to perform a survey of the Magee property and to determine whether the northern boundary of the Magee property was an old gravel road or was the Old Holmesville Public Road. This survey was paid for by Wicker. The Bracey survey indicated that the Magee property consisted of 52.922 acres abutting Old Holmesville Road.

¶ 12.

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Bluebook (online)
937 So. 2d 983, 2006 WL 2599140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wicker-v-harvey-missctapp-2006.