93 So. 2d 629 | Miss. | 1957
The appellant, D. G. Mason, filed his hill of 'complaint in the Chancery Court of the Second Judicial District of Hinds County against the appellee, Gaddis Farms, Inc., seeking to have the court confirm his title to the 40-acre tract of land described as the SW1^ of the NW% of Section 26, Township 7 North, Range 3 East, and two other small parcels of land in the NV% of said Section 26 adjoining the said 40-acre tract, one parcel, containing 5.2 acres, referred to in the record as "Parcel A”, lying immediately north of the said 40-acre tract and being a fractional part of the NW% of the NW% of said section, and the other parcel, referred to in the record as "Parcel B” containing 3.1 acres, lying immediately east of said 40-acre tract and being a fractional part of the SE1^ of the NW% of said section. The appellant alleged in his hill that he had acquired title
In its answer to the bill of complaint the appellee admitted that the appellant was the owner in fee simple of the 40-acre tract of land described as the SW^ of the NW% of said Section 26, and disclaimed any interest therein. The appellee, however, denied that the appellant was the owner of, or had any right, title or interest in the remaining two parcels of land referred to in the bill of complaint as parcels “ A” and “B”. The appellee incorporated in its answer a cross bill in which it alleged that it was the owner in fee simple of the N% of the NW% and the SE % of the NW% of Section 26, which included the two small parcels of land referred to in the bill of complaint, under and by virtue of a deed of conveyance executed by J. L. Gaddis to the appellee on December 4, 1936. The appellee deraigned a record title to the 120 acres of land and asked that the appellant’s claim to the two small parcels of land be cancelled as a cloud upon the appellee’s title and that a decree be entered confirming the appellee’s title and ownership of the land against the claims of the appellant.
Eighteen witnesses testified during the hearing before the chancellor.
The appellant’s attorneys argue as ground for reversal of the judgment of the lower court: (1) That the chancellor erred in failing to take into consideration and give effect to the testimony of the appellant’s witnesses which showed that the land in dispute had been in the appellant’s possession for a period of more than 40 years, and (2) that the decree of the chancellor is contrary to the overwhelming weight of the evidence.
After a careful reading of the voluminous record, however, we think that it cannot be said that the chancellor was manifestly wrong in his finding that the appellant’s proof was insufficient to show that he had acquired title to the two small parcels of land lying outside of his 40-acre tract by adverse possession for the statutory period of ten years.
The parcel of land described in the appellant’s bill as Parcel “A”, containing 5.2 acres, is 1009 feet in length lying immediately north of and alongside the appellant’s 40-acre tract, and is bounded on the west for a distance of 184.5 feet by the county road, and on the north by an irregular elliptical line running northeastwardly, east
The basis of the appellant’s claim to the strip of land referred to as Parcel “A”, lying immediately north of his 40-acre tract, was the alleged occupancy of the strip by the appellant up to a “turnrow”, -which the appellant claimed had been recognized as the north boundary line of his 40-acre tract by Susanna Mason, the appellant’s grantor, -who continued to own the land lying north and east of the appellant’s 40-acre tract until her death in 1929. The appellant testified that the alleged turnrow tied into a 2-strand barbed-wire fence running in a southeasterly direction from a small wooded grove or clump of bushes near the northeast corner of the appellant’s 40-acre tract, to an elm tree located a short distance south and east of the northeast comer of the 40-acre tract. The appellant offered a mass of testimony tending to show the continued existence of the turnrow for a period of approximately 40 years, and also tending to show that the appellant had maintained for many years a barbed-wire fence running in a southeasterly direction from the wooded grove, at the east end of the turnrow, to the above mentioned elm tree. It was also shown that there were remnants of a zigzag fence along the east side of the appellant’s 40-acre tract, running in a southwesterly and southerly direction from the elm
The record shows, however, that the appellant moved off the 40-acre tract of land in 1941 and leased the land to the appellee, Gaddis Farms, Incorporated, and that the appellee was in possession of the 40-acre tract from 1941 to 1946, as the appellant’s lessee; and the appellee’s secretary, Frank Graves, who was in charge of the appellee’s farming operations during that time, testified that all of the land on both sides of the alleged turnrow was broken up with a tractor in 1941, 'and that the turn-row that was visible at the time of the trial was a turn-row which had been made by the appellee’s tenants while the appellee had control of the land on both sides of the turnrow. Practically all of the witnesses testified that the barbed-wire fences running sontheastwardly through the wooded grove and across the northeast corner of the appellant’s 40-acre tract, to the old elm tree, and the fence running sonthwestwardly from the elm tree to a point near the southeast corner of the appellant’s 40-acre tract were zigzag fences made by tacking strands of wire to trees or bushes and a few posts interspersed between the trees or bushes. None of the fences referred to in the testimony of the witnesses, other than the fence erected along the line of the turnrow in 1950, appeared to have been intended as boundary line fences.
Frank Graves, who had known the appellant’s land since 1917, testified that Mason had made several changes in his fences as he moved his pasture from place to place; that the fences were all temporary fences; that they had
O. J. Woodrow, the surveyor, who had ran the lines of the Mason 40-acre tract for the appellee, in January 1955, and had later- prepared the plats of the two parcels of land in controversy for the appellant, testified that there were indications of a turnrow on the north side along the line where Mason had built his fence in 1950, down to the wooded grove, and in the wooded grove he found wire in black jack and gum trees here and there. From the elm tree southwesterly Woodrow found “wire nailed to trees and also a few old rotten fence posts that are still standing. * * * It was just a random line.” He said, “You have to bear in mind that these fences were just random out there, nailed to trees. ’ ’ Referring to the fence on the north, he said, “This fence was very random. I expect he nailed it from one tree to the next trying to keep the, fence on the contour of the earth going up that hill there.” Referring to the fence running from the grove of trees to the old elm, he said, “I -wouldn’t say there is a foot of it straight through there.”
The appellee introduced record evidence to show that the appellant had never been assessed with any land in the NW% of Section 26 except the SW% of said NW%,
It. was admitted that the appellant had no record title, or color of title to the two parcels of land in controversy. The burden of proof was therefore upon the appellant to show that he had been in possession of the two parcels of land under claim of ownership for the statutory period of ten years, and that his possession had been actual, open, hostile, exclusive, and continuous for the statutory period. The appellant does not claim to have had the 5.2 acres of land under fence at any time until 1950. He does not claim to have erected any improvements upon either of the two parcels of land, or to have cut timber on the land. The proof does show that he cultivated land north of the true boundary line and up to a curved turnrow a part of the time. But the area
In the case of Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 16 So. 2d 24, the Court said: “When a fence, or a hedge-row, or the like, is relied upon to delineate the boundaries of the adverse claim the applicable rule is expressed in the latest text on the subject, 1 Am. Jur. p. 870, wherein it is said that, ‘The question in such cases is whether the inclosure, like other acts of possession, is sufficient to “fly the flag” over the land and put the true owner upon notice that his land is held under an adverse claim of ownership.’ ” In the very recent case of Geoghegan v. Krauss, 228 Miss. 231, 87 So. 2d 461, the Court quoted with approval the above statement from Snowden & McSweeny Co. v. Hanley, supra, and in its opinion said: “It was the province of the chancellor to give value and effect to the conflicting testimony as to the existence, repair and reconstruction of fences, and their location with reference to the lands in controversy.”
The issues which the chancellor had to decide in this case were questions of fact. The record, we think, dis
Affirmed.