DOCKET #2015-CA IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Mar :47: CA Pages: 27 DOCKET #2015-CA IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS STATE OF MISSISSIPPI SLATHIEL PRESLEY, ET AL. ) ) ) APPELLANTS ) ) ) V. ) ) RONALD W. STOKES, ET AL., ) CIVIL ACTION NO. ) ) ORAL ARGUMENT NOT APPELLEES. ) REQUESTED ) ) BRIEF OF APPELLEES RONALD W. STOKES AND BILLY W. HEARD ON APPEAL FROM THE CHANCERY COURT OF WINSTON COUNTY, MISSISSIPPI JOHN D. MAYO MSB # FAIR & MAYO, PLLC P.O. BOX 509 LOUISVILLE, MS (662) Office (662) Facsimile ATTORNEY FOR THE APPELLEES

2 I. CERTIFICATE OF INTERESTED PERSONS Case No CA Salathiel Presley, Et Al., v. Ronald W. Stokes, Et Al. The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable Ray Montgomery (deceased) Special Chancellor 2. Honorable Robert L. Lancaster Special Chancellor 3. Salathiel Presley Appellant 4. Larry Moorhead Appellant 5. Honorable Steven D. Settlemires Attorney for Appellants 6. Ronald W. Stokes Appellee 7. Billy W. Heard Appellee 8. Honorable John D. Mayo Attorney for Appellees /s/ John D. Mayo JOHN D. MAYO, MSB # FAIR & MAYO, PLLC P.O. BOX 509 LOUISVILLE, MS (662) Office (662) Facsimile ATTORNEY FOR THE APPELLEES i

3 II. TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PERSONS...I II. III. TABLE OF CONTENTS... II TABLE OF AUTHORITIES... II IV. STATEMENT OF THE ISSUES... 2 V. STATEMENT OF THE CASE... 2 A. NATURE OF THE CASE... 2 B. COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW... 3 C. STATEMENT OF FACTS... 4 VI. SUMMARY OF THE ARGUMENT... 8 VII. ARGUMENT... 9 A. IN AN ADVERSE POSSESSION CASE SHOULD A CHANCELLOR CONSIDER POSSESSORY ACTS OF THE PLAINTIFF OCCIRRING PRIOR TO THE TIME THE PROPERTY WS ACQUIRED BY THE DEFENDANT B. DID THE TRIAL COURT PROPERLY DISMISS PLAINTIFFS CASE FOR FAILURE TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE EACH ELEMENT OF A CLAIM FOR ADVERSE POSSESSION Claim of Ownership Open Notorious and Visible Hostile and Continuous for Ten years VIII. CONCLUSION IX. CERTIFICATE OF SERVICE III. TABLE OF AUTHORITIES CASES Apperson v. White, 950 So. 2d 1113 (Miss. Ct. App. 2007)...13 Ball v. Martin, 63 So. 2d 833 (Miss. 1953)...13 Bedford v. Kravis, 622 So. 2d 291 (Miss. 1993)...14 Berry v. Houston, 195 So. 2d 515 (Miss. 1967)...16 Blackburn v. Wong, 904 So. 2d 134 (Miss. 2004)...13, 14, 15, 20 Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992)...16 Brooks v. Brooks, 652 So. 2d 1113 (Miss. 1995)...10 Coleman v. French, 233 So. 2d 796 (Miss. 1970)...13 Cook v. Mason, 134 So. 139 (Miss. 1931)...19 Craft v. Thompson, 405 So. 2d 128(Miss. 1981)...16 Crawford v. Brown, 61 So.2d 344 (Miss. 1952)...15 Dean v. Slade, 63 So. 3d 1230 (Miss. Ct. App. 2010)...12 Haygood v. First Nat. Bank of New Albany, 517 So. 2d 553 (Miss. 1987)...12 In re Will of Bowling, 155 So. 3d 907 (Miss. Ct. App. 2014)...10 Jones v. Jones, 101 So. 3d 731 (Miss. Ct. App. 2012)...10 Moody v. Cates, 58 So. 3d 1245, 1248 (Miss. Ct. App 2011)...20 Newman v. Smith, 84 So. 2d 512 (Miss. 1956)...13 Niebanck v. Block, 35 So. 3d 1260 (Miss. Ct. App. 2010)...19 People's Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304 (Miss. 1976)...16 ii

4 Rester v. Greenleaf Res., Inc., 160 So. 3d 743 (Miss. Ct. App. 2015)... 8, 10, 11, 21 Roberts v. Young's Creek Inv., Inc., 118 So. 3d 665 (Miss. Ct. App. 2013)...13, 17, 20 Scrivener v. Johnson, 861 So.2d 1057 (Miss. Ct. App. 2003)...16 SKL Investments, Inc. v. Hardin, CA COA (Miss. Ct. App. 2014)...10 Stewart v. Graber, 760 So. 2d 868 (Miss. Ct. App. 2000)...19 Stringer v. Robinson, 760 So. 2d 6 (Miss. Ct. App. 1999)...12 Taranto v. Peoples Bank of Biloxi, 136 So. 2d 213 (Miss. 1962)...13 Ward v. Harrell, CA COA (Miss. Ct. App. 2016)...10 Wicker v. Harvey, 937 So. 2d 983 (Miss. Ct. App. 2006)...14, 15, 16, 20 Woodall v. Ross, 317 So. 2d 892 (Miss. 1975)...16, 17, 18 STATUTES Miss. Code Ann (1)...11, 12, 20 RULES Miss. R. Civ. Pro. R. 41(b)...passim TREATISES 2 C.J.S. Adverse Possession 7, 56 (1936)...13 iii

5 REFERENCES IN BRIEF TO TRIAL TRANSCRIPT, CLERK S PAPERS AND RECORD EXCERPTS References herein to the Trial Court Transcripts as prepared by the Court Reporter shall be designated by pages as (TT _); references herein to the Clerk s Papers, pleadings, orders, etc., shall be designated by pages as (TR _); references herein to Appellants Record Excerpts shall be designated by pages as (RE _); and references herein to Appellees Record Excerpts shall be designated by pages as (ARE ). 1

6 IV. STATEMENT OF THE ISSUES Notwithstanding the Chancellor s application of an erroneous legal standard, was the Plaintiffs case properly dismissed pursuant to Miss. R. Civ. Pro. R. 41(b) for failure to prove each element of adverse possession by clear and convincing evidence. V. STATEMENT OF THE CASE A. NATURE OF THE CASE The factual issues presented in this appeal involve a land dispute involving the former Cannon property in Winston County, Mississippi. The appellants, Salathiel Presley and Larry Moorhead, purchased approximately 66 acres of the Cannon property from the Cannon heirs by warranty deed recorded on October 1, The description of the land conveyed by the 1985 warranty deed to Presley and Moorhead less and excepted four parcels of the Cannon property totaling approximately 13 acres. The Cannon heirs then conveyed the third less and excepted parcel to Ronald W. Stokes and Billy W. Heard by warranty deed recorded on November 30, A dispute arose between the parties over the location of the property boundary line between their respective parcels of land, which lead to the filing of a petition by Plaintiffs, Presley and Moorhead against Defendants, Stokes and Heard. The Plaintiffs petition also included claims against Marcus David Yates, Susan Presley Yates, and Renasant Bank, which were dismissed prior to trial. During the trial of this matter, at the close of the Plaintiffs case, Defendants, Stokes and Heard, moved pursuant to Miss. R. Civ. Pro. R. 41(b) for a dismissal of the Plaintiffs petition, which was sustained by the Special Chancellor. A motion for new trial filed by Plaintiffs, Presley and Moorhead, was also denied. This appeal then ensued. 2

7 B. COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW On January 3, 2009, Plaintiffs, Salathiel Presley and Larry Moorhead, filed a petition in the Chancery Court of Winston County, Mississippi, Cause No , stating claims of adverse possession, fraudulent conveyance, injunction, damages, and declaratory relief, against Defendants, Ronald W. Stokes, Billy W. Heard, Marcus David Yates, Susan Presley Yates, and Renasant Bank. On March 27, 2009, Renasant Bank filed its answer to the petition. On April 28, 2009, Defendants, Ronald W. Stokes, Billy W. Heard, Marcus David Yates, Susan Presley Yates, filed their answer to the petition and counterclaim against Presley and Moorhead for confirmation by record title and adverse possession, to have the claims of Presley and Moorhead removed as a cloud on title, injunctive relief and damages. On June 30, 2009, Plaintiffs, Presley and Moorhead, filed their answer to the counterclaim. On July 13, 2009, Defendants, Stokes, Heard and Yates, served discovery requests on Plaintiffs, Presley and Moorhead. On December 2, 2009, Plaintiffs, Presley and Moorhead, served their responses to the Defendants discovery requests, and served their own discovery requests to Defendants. On February 11, 2010, Defendants, Stokes, Heard and Yates, served their responses to Plaintiffs discovery requests. On July 26, 2010, Plaintiffs, Presley and Moorhead, filed a motion to compel additional discovery responses from Defendants. On September 16, 2010, Defendants, Stokes, Heard and Yates, filed a motion to compel additional discovery responses from Plaintiffs. On September 24, 2010, Defendants, Marcus David Yates, Susan Presley Yates, and Renasant Bank, were dismissed with prejudice. 3

8 On October 7, 2010, Judge Edward C. Fenwick recused himself as trial judge in this matter. On October 14, 2010, Chief Justice William L. Waller Jr. entered an order appointing Honorable Ray H. Montgomery as Special Chancellor in this matter. On June 21, 2011, the trial was continued and Plaintiffs were ordered to obtain a competent survey. On September 14, 2014, Defendants, Stokes and Heard, filed a statutory deraignment of title. On September 15, 2014, the trial on the merits of this cause was conducted. The Plaintiffs elicited testimony from five witnesses, including both Plaintiffs in addition to Pam Reel, Marvin Hughes and Doyce Johns. At the close of the Plaintiffs case the Defendants, Stokes and Heard, moved pursuant to Miss. R. Civ. Pro. R. 41(b) for a dismissal of the Plaintiffs petition, which was sustained by the Special Chancellor. On September 30, 2014, a Judgment of dismissal was entered. On October 6, 2014, Plaintiffs, Presley and Moorhead, filed a motion for new trial. On November 12, 2014, Defendants, Stokes and Heard, filed their response in opposition to Plaintiffs motion for new trial. On January 5, 2015, an Order was entered appointing the honorable Robert L. Lancaster as Special Chancellor in this matter. On May 6, 2015, a hearing was conducted on Plaintiffs motion for new trial. On May 13, 2015, an order was entered denying Plaintiffs motion for new trial. On June 4, 2015, Plaintiffs, Presley and Moorhead, filed their notice of appeal. C. STATEMENT OF FACTS On August 1, 1985, the appellants, Salathiel Presley and Larry Moorhead, entered into an 4

9 option to purchase real estate from Betty C. Chancellor, Mary C. Holmes, and Linda S. Luke, (the Cannon heirs ) for approximately 60 acres of land. (TT Ex. 4) The option was exercised, and on August 22, 1985 the Cannon heirs executed a warranty deed to Presley and Moorhead for the optioned Cannon property, which was recorded on October 1, (TT Ex. 2) The property purchased by Presley and Moorhead was only a portion of the property owned by the Cannon heirs. Id. The description of the land conveyed by the 1985 warranty deed to Presley and Moorhead less and excepted four parcels of the Cannon property totaling approximately 13 acres. Id. The Cannon heirs ultimately conveyed the third less and excepted parcel to Ronald W. Stokes and Billy W. Heard by warranty deed on November 30, (TT Ex. 1) Although, the disputed tract is mostly pasture land, it is surrounded by residential dwellings. (TT Ex. 6, 7, and 15) The property at issue is bordered on the south by residential dwellings and on the east by Love Road. Id. On the North it is bordered by trees beyond which lie more residential dwellings. Id. Additional pasture lies to the West beyond which lie additional residential dwellings on the property of the Plaintiffs. Id. The tax map admitted into evidence identifies the disputed tract as parcel and that the property is assessed to Ronald Stokes and Billy W. Heard. (TT Ex. 10) Another tax map admitted into evidence identifies the adjacent tract belonging to Plaintiffs as parcel and that the property is assessed to Larry Moorhead, et al. (TT Ex. 11) Larry Moorhead testified that he did not have the Cannon property surveyed prior to 1 Although the option and later warranty deed both describe the same property a discrepancy exists between the number of approximate acres in the option, 60, and the number of approximate acres described in the deed, 66. 5

10 purchasing the property, however, the deed he received at closing, which was prepared by an attorney, clearly less and excepted certain parcels of property. (TT 15-16, and Ex. 2) Larry Moorhead further testified that he and Presley utilized their property for rental houses and to cut hay and graze cows; however, they did not place any rental houses on the disputed tract. (TT 16) Moorhead testified that Presley had cows on the disputed property in 1985 and 1986, and that Moorhead s niece s husband, Joey Partridge, received Moorhead s permission to have cattle on the property for several years in a row, ten or more years ago, and that Mr. Partridge had cows and cut hay on the property during that time. (TT 17-18) Moorhead admitted that the cows had not been on the property continuously since it was purchased. Moorhead himself testified that he had clipped the disputed property several times over the years, but not every year. (TT 29) Moorhead did not cause any of the fencing on the property to be erected and admitted that the disputed tract is not entirely under fence. (TT 21, 29-31) Although Moorhead stated he thought he was getting Mr. Cannon s whole place, he further admitted that he knew he didn t purchase Ms. Cannon s home, which was part of the Cannon property. (TT 32) Moorhead admitted he probably didn t read the deed prior to purchasing the property doesn t know anything about deeds and maps and he didn t do any due diligence after executing the option to purchase the property to determine what he was purchasing. (TT 32-33) Morehead also admitted they he and Presley did not cut timber, farm or build houses on the disputed property. (TT 34) Moorhead testified that although he had conversations with Van Chancellor, husband to Betty Cannon Chancellor one of the Cannon heirs regarding the purchase of additional Cannon property, Moorhead never claimed to Van Chancellor that he and Presley owned the disputed tract. Moorhead never contacted Ms. Cannon regarding his possession of the disputed tract. (TT 36) 6

11 Pam Reel testified that she lived adjacent to the disputed tract on the property owned by the Plaintiffs from 1996 to (TT 39) She said her and her husband had horses on the property for two years until 1998, but on cross-examination while referring to the tax map marked as, Exhibit 11, (TT Ex. 11) Ms. Reel admitted that the horses were on parcel 7 the parcel owned by Moorhead and Presley not Parcel 5, which includes the disputed property. (TT 42, 46) She could not say when Joey Partridge had cattle on the property other than on and off starting in Ms. Reel could not say who cut hay on the disputed other than Joey Partridge but could not say when Mr. Partridge cut hay on the property. (TT 46) Ms. Reel could not give any dates when either Presley or Morehead were on the property clipping hay or tending to cows. (TT 49) Marvin Hughes testified that he cut hay on the disputed property on one occasion in 2007, 2008 or (TT 53) The second time he attempted to cut hay on the disputed tract he was stopped by Defendant, Ronald Stokes. (TT 58) Mr. Hughes testified that he did not cut hay again on the disputed tract after being stopped by Stokes. (TT 59) Doyce Johns testified he cut hay on the property twice over the course of a couple of months approximately 15 years ago. (TT 68,69) Mr. Johnson could not state during what year he cut the hay. Id. Plaintiff, Salathiel Presley, admitted that he did not read the warranty deed he received from the Cannon heirs, that he did not know how much land he was buying, only that he was buying Mr. Cannon s place. (TT 76) He was not aware that Ms. Cannon s house had been less and excepted from the warranty deeds. (TT 77) He had cows on the property for a short period of time shortly after he purchased the property in 1986 and then again for three weeks in (TT 81-84) Mr. Presley contacted a surveyor to run his property lines in (TT 88) The 7

12 surveyor told him that there was a problem with the boundary lines and that his east line intersected Ms Cannons house or came close to it. (TT 88, ) After being told that there was a problem with the boundary lines, Mr. Presley did not go forward with having the surveyor run the property lines. (TT 105) The Survey introduced into evidence by the Plaintiffs, indicates that the Plaintiffs property line does not extend all the way to Love Road. (TT Ex. 7) Mr. Presley could not state during what years Mr. Partridge had cattle on the property or for how may years Mr. Partridge had cattle on the property. (TT 94) Presley testified that there were years when the hay was not cut and that he clipped the hay instead. Presley stated that he clipped hay on the property a few times over the years, but did not testify as to what years he clipped other than one time in (TT ) Joey Partridge upon whom the Plaintiffs rely for much of their use of the disputed property was not called to testify. VI. SUMMARY OF THE ARGUMENT The Chancellor in this case dismissed the Plaintiffs petition at the close of the Plaintiffs case in chief upon Defendants motion to dismiss under Miss. R. Civ. Pro. R. 41(b). The reasoning given by the Court at trial and in the Court s judgment was that since the Defendants only owned the land for two years prior to the filing of the petition, the Plaintiffs could not prove adverse possession for ten years. However, based on the recent holding in Rester v. Greenleaf Res., Inc., 160 So.3d 743 (Miss. Ct. App. 2015) the Court applied the wrong legal standard in dismissing Plaintiffs case. Although the trial Court used the wrong legal reasoning in reaching the conclusion that the Plaintiffs case was due to be dismissed, the Chancellor still reached the correct conclusion. At trial the Plaintiff failed to prove by clear and 8

13 convincing evidence the necessary elements of adverse possession, and a de novo review of the record supports the dismissal of the Plaintiffs case. Specifically, the Plaintiffs petition fails because they are unable to prove that their possession of the disputed property was 1) under claim of ownership, 2) open, notorious and visible, and 3) hostile and continuous for ten years. Plaintiffs hired a surveyor to survey their property lines shortly after purchasing the property in Prior to completing the survey the surveyor informed Plaintiff Presley that there was a problem with the property boundary lines, and Presley decided not to have the survey completed. Had the survey been completed in 1986 Presley would have known that he and Moorhead did not own all the Cannon property up to Love Road. Regardless, under Mississippi law he is chargeable with the knowledge of what the survey would have determined. Since the Plaintiffs are chargeable with the knowledge that in 1986 they did not own the disputed tract, all of their possessory acts committed since then were performed without a claim of ownership. In addition, at best the Plaintiffs use of the property consisted of the occasional and sporadic grazing of cows and cutting of hay, and Mississippi Courts have repeatedly held that sporadic and occasional use of another s property does not constitute open and notorious possession. Moreover, although a portion of the disputed property was under fence, there is insufficient evidence to prove the location of the fence, and as such the evidence is insufficient to support Presley and Moorhead s claim that they were claiming all the property under fence. Because they failed to establish by clear and convincing evidence each element of their claim, their petition was due to be dismissed and the Chancellor s dismissal of their petition is due to be affirmed. VII. ARGUMENT At the close of a plaintiff s case, the Chancellor may dismiss a plaintiff s claim if the 9

14 evidence, viewed fairly, did not obligate the judge to find for the plaintiff. In re Will of Bowling, 155 So. 3d 907, 908 (Miss. Ct. App. 2014)(emphasis added). When considering a Rule 41(b) motion to dismiss, the judge must deny the motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case. Id. at 911 (internal citations omitted). When reviewing a dismissal under... Rule... 41(b), we will not overturn the decision of [the chancery court] if [its] findings are supported by substantial evidence unless [the chancery court] abused [its] discretion, was manifestly wrong, or applied an erroneous legal standard. SKL Investments, Inc. v. Hardin, 2013-CA COA ( 12) (Miss. Ct. App. 2014) (citing Jones v. Jones, 101 So. 3d 731, 732 ( 4) (Miss. Ct. App. 2012)). However [w]here a [chancellor] misperceives the correct legal standard to be applied, the error becomes one of law, and [this Court will] not give deference to the [chancellor s] findings.... Ward v. Harrell, 2015-CA COA ( 12) (Miss. Ct. App. 2016) (quoting Brooks v. Brooks, 652 So. 2d 1113, 1117 (Miss. 1995). Instead, [we review] questions of law de novo. Id. And, after review, if warranted, [we] will reverse the [chancellor] because of an erroneous interpretation or application of the law. Id. (emphasis added). A. IN AN ADVERSE POSSESSION CASE SHOULD A CHANCELLOR CONSIDER POSSESSORY ACTS OF THE PLAINTIFF OCCURRING PRIOR TO THE TIME THE PROPERTY WAS ACQUIRED BY THE DEFENDANT Here the Chancellor sustained the Defendants motion to dismiss under Miss. Civ Pro. R. 41(b). The reasoning given by the Chancellor at trial and in the judgment was that since the Defendants only owned the land for two years prior to the filing of the petition, the Plaintiffs could not prove adverse possession for ten years. Plaintiffs now rely on Rester v. Greenleaf Res., Inc., 160 So. 3d 743 (Miss. Ct. App. 2015) in arguing that the Court should look to 10

15 possessory acts committed by a plaintiff prior to the time the disputed property was purchased by a defendant in determining if the plaintiff has adversely possessed the property for ten years. The facts and reasoning the Greenleaf trial court relied on in dismissing the plaintiff s case, are indeed very similar to the facts and reasoning given by the trial court in this case. Based on the Courts holding in Greenleaf, a trial court should consider possessory acts of the plaintiff prior to the time the property was purchased by the defendant. 2 However, notwithstanding the fact that the Chancellor used the wrong legal reasoning in reaching the conclusion that the Plaintiffs petition was due to be dismissed, the Chancellor still reached the correct conclusion. The Plaintiffs failed to prove by clear and convincing evidence the necessary elements of adverse possession, and a de novo review of the record supports the dismissal of the Plaintiffs case. B. DID THE TRIAL COURT PROPERLY DISMISS PLAINTIFFS PETITION FOR FAILURE TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE EACH ELEMENT OF A CLAIM FOR ADVERSE POSSESSION Plaintiffs, Presley and Moorhead, failed to meet their burden of proof by clear and convincing evidence that by their specific actions they maintained the exclusive, complete, actual notorious, hostile, adverse, continuous, undisputed and peaceful possession, ownership and control of the disputed property for 10 years entitling them to title of the disputed property through a theory of adverse possession, pursuant to Miss. Code Ann (1). Adverse possession is defined under (1), which provides the following: Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy 2 Defendants would note that Greenleaf was not submitted to the Court at trial or in Plaintiffs motion for new trial. 11

16 may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title. Over the years, Mississippi Appellate Courts have crafted a set of factors for trial courts to use in applying (1). Those Courts have repeatedly held that the party claiming adverse possession must prove ten years adverse possession by clear and convincing evidence that his/her possession was (1) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Dean v. Slade, 63 So. 3d 1230 (Miss. Ct. App. 2010) (citing Stringer v. Robinson, 760 So. 2d 6, 9 ( 13) (Miss. Ct. App. 1999)). The ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership. Id. Clear and convincing evidence has been defined by Mississippi Courts as follows: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact[-]finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Id. Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level. Id. Essentially, the question is whether the evidence of adverse possession was so clear that no hypothetical, reasonable fact finder hearing the proof could conclude otherwise. Haygood v. First Nat. Bank of New Albany, 517 So. 2d 553 (Miss. 1987). Here the Plaintiffs claim for adverse possession fails because the Plaintiffs failed to prove certain of the elements of a claim of adverse possession, including 1) that it was under a claim of ownership, 2) that the possession was open, notorious and visible, 3) that it was hostile and continuous and uninterrupted for a period of ten years. 12

17 1. CLAIM OF OWNERSHIP Under the claim of ownership element of an adverse possession action, the chancellor must determine whether the purported adverse possessor s actions were sufficient to fly a flag over the property and put the actual owners on notice that the property was being held under an adverse claim of ownership. Roberts v. Young's Creek Inv., Inc., 118 So. 3d 665, 679 (Miss. Ct. App. 2013) (citing Apperson v. White, 950 So. 2d 1113, 1117 ( 7) (Miss. Ct. App. 2007) (internal quotations omitted). The Mississippi Supreme Court has stated: Id. at 670. When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. Furthermore, Mississippi appellate courts have also clearly held that one cannot set out to adversely possess the property of another. Blackburn v. Wong, 904 So. 2d 134, 137 (Miss. 2004). The claim of ownership element must exist at the beginning of the ten-year statutory period. Id. The Wong Court in analyzing the claim of ownership element stated: This is another one of those cases based upon the misconception that possession of property is sufficient to sustain a claim of ownership by adverse possession. The claim of ownership must have existed at the beginning of the statutory period of possession and not possession with the intent to claim as soon as the statutory period passed. Id. (citing Coleman v. French, 233 So. 2d 796, (Miss. 1970); Taranto v. Peoples Bank of Biloxi, 136 So. 2d 213 (Miss. 1962); Newman v. Smith, 84 So. 2d 512 (Miss. 1956); Ball v. Martin, 63 So. 2d 833 (Miss. 1953); and 2 C.J.S. Adverse Possession 7, 56 (1936). In Wong, the plaintiff was informed by the surveyor that his law office building had been partially built on Wong s property, and at that point, Blackburn, the Plaintiff, knew he did not 13

18 own the disputed property. That being the case, he had no claim of ownership at the beginning of the statutory period and, thus, could not gain title to the property through adverse possession. Wong, 904 So. 2d 134, 137. Confusing testimony was given in this case as to what property Presley and Moorhead were claiming. Although Presley and Moorhead repeatedly testified that they thought they were purchasing the whole Cannon place, being all of the property Mr. Cannon had under fence, (TT 32) the warranty deed conveying the property from the Cannon heirs to Presley and Moorhead clearly less and excepted several parcels of the Cannon property. (TT Ex. 1,2) The same parcels of property now being claimed by the Plaintiffs. Id. Both Plaintiffs admitted that they did not do any due diligence to determine what they were buying, where their property lines were located, or where the less and excepts included in the calls of their deed were located. (TT 32-33, 76) Furthermore, Plaintiff Moorhead admitted that Ms. Cannons house was not included in what they purchased,(tt 32) however, Plaintiff Presley testified that he thought Ms. Cannon s house was included. (TT 77) It is this type of confusing testimony that causes Plaintiffs claim to fail under a clear and convincing standard of proof. Moreover, under Mississippi law a prospective purchaser of real estate in Mississippi is charged with constructive notice of every statement of fact contained in the various conveyances constituting the chain of title. Wicker v. Harvey, 937 So.2d 983, 992 (Miss. Ct. App. 2006) (citing Bedford v. Kravis, 622 So.2d 291, 295 (Miss. 1993). As such, Presley and Moorhead were on notice when the property was conveyed to them in 1986 that they did not own the less and excepted property. (TT Ex. 1) Moreover, like the Plaintiff in Wong, Presley admitted under oath to hiring a surveyor in 1986 shortly after purchasing the property to run the property lines. (TT 88, ) The surveyor apparently informed Presley that there was a problem with his 14

19 lines and that the east line probably went through or close to Ms. Cannon s home. Id. For some reason, Presley decided against getting to the bottom of the issue and ignored the clear warning of the surveyor that there was a problem and instead did nothing. Id. As such, and similar to Wong, Presley knew or should have known there was a problem with the property boundary lines and as such cannot now make a claim of ownership to the disputed property. It has long been the law in Mississippi that when, in respect to a matter in which he has a material interest, a person has knowledge of such facts as to excite the attention of a reasonably prudent man and to put him upon guard and thus to incite him to inquiry, he is chargeable with notice, equivalent in law to knowledge, of all those further relevant facts which such inquiry, if pursued with reasonable diligence, would have disclosed. Wicker, 937 So. 2d at 992 (citing Crawford v. Brown, 61 So. 2d 344, 350 (Miss. 1952)). Accordingly the Wicker Court determined, that although Wicker hired a surveyor, Wicker's inquiry as to the true boundary line was not reasonably diligent and he is charged with the knowledge that a reasonably diligent investigation would have disclosed to him. Id. Thus, under the reasoning in Wicker, even though the surveyor retained by Presley in 1986 never completed the survey, Plaintiffs are still chargeable with constructive knowledge of what the survey would have shown if it had been completed. Stated differently, when Presley was informed by the surveyor in 1986 that there was a problem with this property boundary lines, he had sufficient knowledge to put him on guard and incite him to further inquiry as to the location of those property boundary lines, thus he is chargeable with the knowledge of what a reasonable investigation or survey would have revealed. This is fatal to the Plaintiffs case, because, Presley and Moorhead are claiming that they always thought they owned all the way up to Love Road and that their claim of ownership and the possessory acts they committed were 15

20 under the honest belief that they purchased all of the Cannon property under fence all the way up to Love Road, when in reality and as clearly shown on the survey obtained by the Plaintiffs and admitted into evidence, (TT Ex. 7) the Plaintiffs property line stops several hundred feet west of Love Road. As such, the Plaintiffs cannot now claim that they have a claim of ownership to the disputed property, because as the Wong Court held one cannot set out to adversely possess the property of another. Since the Plaintiffs are chargeable with the knowledge that in 1986 they did not own the disputed tract, all of their possessory acts committed since then were performed without a claim of ownership, and as such, their petition for adverse possession was due to be dismissed by the Chancellor upon Defendants Rule 41(b) motion. 2. OPEN NOTORIOUS AND VISIBLE The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor's use be open, notorious, and visible. Wicker, 937 So. 2d at 994 ( 35) (citing Craft v. Thompson, 405 So. 2d 128, 130 (Miss. 1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So. 2d 1057, 1059 ( 6) (Miss. Ct. App. 2003) (citing People's Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304, 1305 (Miss. 1976)). [A]n adverse possessor must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest. Wicker, 937 So. 2d at 994 ( 35) (citing Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992)). In Woodall v. Ross, 317 So. 2d 892 (Miss. 1975) the Court quoted Berry v. Houston, 195 So. 2d 515 (Miss. 1967) for the proposition that a plaintiff s adverse possession claim contemplates a special kind of possession. It is the intendment of the law that title to real property belonging to another may never be acquired by mere possession, however long 16

21 continued, which is surreptitious or secret, or which is not such as will give unmistakable notice of the nature of the occupant's claim. Id. at 895. The Woodall Court also noted that equally significant in an adverse possession case are the plaintiff s non-actions, or what the plaintiff could have done on the property and did not do. Id. The actions of the plaintiff must be viewed in the light of the best use of the property as possessory acts may vary with the characteristics of the land. Roberts, 118 So. 3d at 670. The Plaintiff would have the Court believe that the property is question is wild lands which requires a lower quality of actions with regard to a claim for adverse possession. However, no such finding can be made in this case. Although the disputed property is an uncultivated pasture, it is not wild lands in the sense that it is remote, uninhabitable, or unsuitable for occupation. (TT Ex.6, 7 and15) In fact the property lies within a residential area in Winston County, is adjacent to numerous residential dwellings, and is suitable for occupation and other uses. Id. Accordingly allowing a lessened level of proof regarding the level of possessory acts committed by the Plaintiffs necessary to maintain their claim would be inappropriate. Here the possessory actions of the Plaintiffs were limited to the grazing of cows and cutting and clipping hay. (TT 17-18, 29, 53, 81-84) The Plaintiffs witnesses testified that the cattle grazing occurred sporadically since the property was purchased in Id. Plaintiff Presley testified that he believed he had cattle for a couple of years after he purchased the property and then again in 2008 for a few months. (TT 81-84) During the intervening period Presley did not have cattle on the property. Id. There was also testimony that Joey Partridge had cattle on the property during part of the intervening time period, but none of the Plaintiffs testified as to when this occurred, how long he had the cattle on the property, when it began, or 17

22 where on the property the cattle grazing occurred. (TT 94) Several additional witnesses were called to testify that they had clipped or cut hay on the property. Both Plaintiffs testified that their clipping hay was limited to a few occasions. Plaintiff Presley testified that he had clipped hay a few times, but could only recall specifically clipping in (TT ) Plaintiff Moorhead did not testify as to when he clipped hay on the property. (TT 29) The remaining witness, Doyce Johns and Marvin Hughes testified that they cut hay on the disputed property at the request of the Plaintiffs. Marvin Hughes testified that he cut hay on the disputed property on one occasion in 2007, 2008 or (TT 53) The second time he attempted to cut hay on the disputed tract he was stopped by Defendant, Ronald Stokes. (TT 58) Mr. Hughes testified that he did not cut hay again on the disputed tract after being stopped by Stokes. (TT 59) Doyce Johns testified he cut hay on the property twice over the course of a couple of months approximately 15 years ago. (TT 68,69) Mr. Johns could not state during what year he cut the hay. Id. Equally significant under the open, notorious and visible, element of an adverse possession claim are the non-actions of the plaintiff, or the possessory acts normally associated with ownership that the plaintiff did not commit. Woodall, 317 So. 2d 892, 895. Here the Plaintiffs produced no evidence that they ever marked their boundary lines with paint or flagging or with no trespassing signs. Although the Plaintiffs moved a house onto the adjacent property they owned, they did not place a house or erect any structures on the disputed property. (TT 16) No evidence was submitted that the Plaintiffs ever paid land taxes for the disputed property. In fact the only evidence submitted regarding the taxes indicates that the disputed tract is assessed to Ronald Stokes and Billy Heard, and that the adjoining tract is assessed to Larry Moorhead, et al. (TT Ex ) 18

23 At best the Plaintiffs use of the property was occasional and sporadic, and Mississippi Courts have repeatedly held that sporadic and occasional use of another s property does not constitute open and notorious possession. Cook v. Mason, 134 So. 139 (Miss. 1931). The present case is also similar to Stewart v. Graber, 760 So. 2d 868 (Miss. Ct. App. 2000). Similar to the acts testified to by Presley and Moorhead, the Stewarts claimed that they used the contested area to enclose livestock. Id. at 869. However, the chancellor found that the Stewarts did not carry the burden of proof that there was ever such an enclosure. Even if livestock were permitted to graze on this area, occasional pasturing of stock on another's property without an enclosure is not adverse possession. Id. (citing Cook, 160 Miss. at 814) The Stewarts even cultivated a garden on part of the contested strip of land, but they did not prove that the garden existed continuously or even adequately prove which part of the strip of land it occupied. Id. There was also testimony that the Stewarts cut hay off the property. The chancellor found that none of this testimony proved a continuous and exclusive use of the land by the Stewarts and the Court of Appeals affirmed this finding. Id. The same is true in the case at hand. Although a fence exists along the boundary of a portion of the disputed property, as in Stewart, the record here reveals that the exact location of the fence is ambiguous and insufficient to prove to adverse possession. Stewart, 760 So. 2d 868, 869 ( 8-9) There is no evidence that the fence ever enclosed or completely divided one property from another. More importantly, Presley and Moorhead did not build the fence. Niebanck v. Block, 35 So. 3d 1260 (Miss. Ct. App. 2010) ( [T]he mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the properties. ) This case was continued previously to allow the Plaintiffs the opportunity to have their property surveyed. The survey admitted into evidence on behalf of the Plaintiffs (TT. Ex. 7) 19

24 only shows Plaintiffs record title, and clearly shows that their property line does not extend to Love Road. Moreover, the survey depicts the location of an old fence that does not fully enclose the property. A similar fence is shown on the plat (TT Ex. 6), which was admitted into evidence by the Defendants. There was also testimony given by a number of witnesses about fencing, but nothing sufficient to prove the location of a fence or that the disputed property was completely fenced off from the Defendants. Because there is insufficient evidence to prove the location of the fence, there is no evidence to support Presley and Moorhead s claim that they were claiming all the property under fence. Moody v. Cates, 58 So. 3d 1245, 1248 (Miss. Ct. App 2011). This element is not satisfied, and as such, Plaintiffs petition for adverse possession was due to be dismissed by the Chancellor upon Defendants Rule 41(b) motion. 3. HOSTILE AND CONTINUOUS FOR TEN YEARS Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor's deed." Roberts, 118 So. 3d at 665 (citing Wicker, 937 So. 2d ( 34)). Furthermore, the Plaintiffs here must prove adverse possession of the disputed property for a period of ten years, pursuant to Miss. Code Ann (1). For reasons stated above, the Plaintiffs cannot show either of these elements. Although the Plaintiffs now claim they were under the honest mistaken belief they owned the Cannon Place which included all of the Cannon property under fence. Under the Court s holding in Wong, the Plaintiffs are chargeable with the knowledge that in 1986 they did not own the disputed tract, a such, all of their possessory acts committed since then were performed without a claim of ownership, and as such, their claim for adverse possession is due to fail. Moreover, for the same reasons, under Roberts, they cannot prove their actions were hostile, since they cannot now say they had a mistaken belief than the land they were claiming 20

25 was within the call of their deed. They are chargeable with the knowledge that it was not in the call of their deed. Furthermore, since all of their possessory actions since 1986 were neither hostile nor under a claim of ownership, Plaintiffs cannot prove adverse possession for ten years. For these reasons Plaintiffs petition for adverse possession was due to be dismissed by the Chancellor upon Defendants Rule 41(b) motion. VIII. CONCLUSION The Chancellor in this case dismissed the Plaintiffs petition at the close of the Plaintiffs case in chief upon Defendants motion to dismiss under Miss. R. Civ. Pro. R. 41(b). The reasoning given by the Chancellor was that since the Defendants only owned the land for two years prior to the filing of the complaint, the Plaintiffs could not prove adverse possession for ten years. However, based on the recent holding in Greenleaf, the Chancellor applied the wrong legal standard in dismissing Plaintiffs petition case. Although the Chancellor used the wrong legal reasoning in reaching the conclusion that the Plaintiffs case was due to be dismissed, he still reached the correct conclusion. The Plaintiff failed to prove by clear and convincing evidence the necessary elements of adverse possession, and a de novo review of the record supports the dismissal of the Plaintiffs petition. Specifically, the Plaintiffs petition fails because they are unable to prove that their possession of the disputed property was 1) under claim of ownership, 2) open, notorious and visible, and 3) hostile and continuous for ten years. Because they failed to establish by clear and convincing evidence each element of their claim, the petition was due to be dismissed and the Chancellor s dismissal of the petition case is due to be affirmed. 21 Respectfully submitted, /s/ John D. Mayo

26 JOHN D. MAYO, MSB # ATTORNEY FOR APPELLEES OF COUNSEL JOHN D. MAYO, MSB # FAIR & MAYO, PLLC P. O. BOX 509 LOUISVILLE, MS TELEPHONE NO

27 IX. CERTIFICATE OF SERVICE I hereby certify that I have served the a copy of the above and foregoing document upon all MEC participants of record in this cause, by filing same with the appellate MEC system, all non MEC participants in this case have been served this date by United States mail postage prepaid, to their office addressed, as shown below, this the 22nd day of March, Honorable Steven D. Settlemires 410 East Beacon St. Philadelphia, MS Honorable Robert L. Lancaster Special Chancellor P.O. Box 884 Columbus, MS /s/ John D. Mayo JOHN D. MAYO 23