Opinion
No 35113.
March 15, 1943.
1. ADVERSE POSSESSION.
In action to recover statutory penalty and damages for cutting pine trees, instruction that plaintiff could not recover unless he owned the land or had held it by actual, adverse, open, and notorious possession for ten years before timber was removed, and had not abandoned the property with intent to abandon during such period, was not subject to criticism that it failed to properly define title by adverse possession.
2. BOUNDARIES.
In action to recover statutory penalty and damages for cutting trees on plaintiff's land, instruction that, if jury believed that fence had been erected for ten years or more as agreed boundary, the fence represented true boundary, was not subject to criticism that it was calculated to leave impression that the very fact of a line having been run constituted an agreement that any fence erected at the time should constitute the boundary.
3. ADVERSE POSSESSION.
The underlying principle on which is founded the rule requiring that possession must be open and notorious before it can be considered "adverse" to real owner is that such character of possession is presumptive notice to the true owner of such possession and adverse claim, but the rule does not apply where party against whom adverse claim is asserted has actual knowledge of such adverse possession.
4. ADVERSE POSSESSION.
A possession which is adverse and actually known to the true owner is equivalent to a possession which is "open and notorious and adverse."
5. ADVERSE POSSESSION.
If the owner have actual knowledge that the possession is adverse to his title, the occupancy need not be open, visible, and notorious, since notoriety is important only where the adverse character of the possession is to be brought home to the owner by a presumption.
APPEAL from the circuit court of Oktibbeha county, HON. JOHN C. STENNIS, Judge.
John D. Greene, Jr., and Will E. Ward, both of Starkville for appellant.
The case was submitted to the jury under instructions Nos. 1, 3, and 5 on the theory that there was evidence that appellant erected the fence in 1927 or 1928 as an agreed boundary line fence and that it was so recognized by the parties for more than ten years.
Acquisition of land in derogation of the legal title may be effected by mutually agreed boundary lines followed by acquiescence of both parties for the statutory period, or may be by adverse possession. The first two of these instructions are confined to agreed boundaries. The third instruction also includes the element of adverse possession.
The legal principles governing such acquisition by prescription are too elementary and well defined to require elaborate citation of authorities.
A private survey is not binding on adjacent landowners in the absence of an agreement between them to abide thereby, and then only when acquiesced therein for a period of time sufficient to raise a presumption of its correctness.
11 C.J.S. 657, Sec. 86.
The evidence in this case does not support the instructions given the jury.
The instructions given the jury, however, particularly Nos. 1 and 2, were calculated to leave on the minds of the jury the impression that the very fact of a line having been run constituted an agreement that any fence erected at the time should constitute the boundary between the properties.
Instruction No. 3 is bad for an additional reason, in that it injects, independent of the question of party line fences, the doctrine of adverse possession into the case without properly defining such doctrine. Its omissions are especially misleading under the facts of this case. All that this instruction requires is "open, notorious, peaceful, and adverse possession." Both parties may very easily have gone on a tract of land such as that involved in this lawsuit, from time to time during a ten-year period. Such entries by both parties may have been open, and they may have been frequent enough to be known to someone in the vicinity — in other words, notorious. Yet neither party may have known of the adverse claim of the other until the time came when one of them wanted to cut the timber in 1940. The evidence tends to bear this theory out, particularly the testimony of appellant and that of appellee.
An instruction on adverse possession, if applicable at all, should include the elements (1) actuality, (2) openness and notoriety, (3) exclusiveness, (4) duration and continuity, and (5) hostility.
2 C.J.S. 867, 868.
The jury was told, in effect, that if they believed from the evidence that over a period of ten years the appellee was in open, notorious, peaceful and adverse possession of the tract in dispute, from time to time, the verdict should be in his favor, even though appellant may have likewise exercised rights of ownership and possession during the same period.
This is not a case where both sides are claiming title under conflicting deeds, as in E.L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846, but is one where appellee is seeking to defend himself against the owner of the record title through an alleged party line agreement, adverse possession, or a combination of the two, in the face of written notice from the record owner. In such a case it was vital to appellant's rights that instructions on these questions should have been confined to issues supported by the evidence, and should have fully and clearly embodied every essential element thereof applicable under such evidence.
Appellee undertakes to avoid the effect of the adverse possession instruction by saying that adverse possession was not an issue in the case. One obvious answer to this position is that if no element of adverse possession existed in the case appellee should not have asked for an instruction on adverse possession, and the granting of such an instruction, particularly a defective one, was an error clearly calculated to lead the jury into an excursion outside the record. But the whole case was tried around a conflicting issue as to who possessed the disputed land over a period of more than ten years, i.e., from the year 1928 to the filing of this suit. Land cannot be conveyed except by written instrument. Parole agreements acted upon by the parties merely raise presumptions as to correctness of boundary lines. Prescription alone can ripen such agreements into title. In the case at bar, where the 1928 survey is clearly shown to have been an ex parte survey utterly devoid of all elements of a mutually agreed boundary settlement, and where the proof of possession since such survey is vague, indefinite and conflicting, we repeat our insistence that the case should be tried under instructions fully and correctly defining all essential legal elements constituting the basis of title by prescription.
Daniel Bates, of Starkville, for appellee.
We submit that nowhere in the record is there an effort to set up "adverse possession," but our contention now is and has been all along, and this amply supported by the overwhelming weight of the evidence, that this fence is on a recognized line, dating from 1884, or 1894 at the most, down to the filing of this suit.
An agreed boundary is not only accepted by the court but the same is approved.
Ballard on Real Property: Vol. 2, Sec. 50; Vol. 3, Sec. 53; Vol. 4, Sec. 50; Vol. 5, Sec. 51; Vol. 6, Sec. 95; Vol. 7, Sec. 51; Vol. 8, Sec. 52.
Where adjacent owners, by surveys or otherwise, locate the boundary line between their lands in which they acquiesce by taking possession, building fences, or the erection of other improvements, such location becomes binding upon them.
Ballard on Real Property: Vol. 3, Sec. 54; Vol. 6, Sec. 96; Vol. 9, Sec. 49.
Fences of long standing, erected upon what was recognized as a true line, are better evidence than surveys made after the original monuments have disappeared.
1 Ballard on Real Property, Sec. 476.
Parole evidence is sufficient to establish a boundary dispute.
Natchez v. Vandervelde, 31 Miss. 706; Archer v. Helm, 69 Miss. 730, 11 So. 3; Archer v. Helm, 70 Miss. 874, 12 So. 702; Carpenter v. Monks, 81 Mich. 103.
Our contention is that an agreed boundary is as binding as accurate governmental or other surveys, none of which we had in this case, and that an agreed boundary doesn't necessarily have to extend over a period of ten years to make it binding, but inasmuch as this boundary, as contended by appellee, had been definitely established for thirteen years we are free to use the words, "ten years." Most certainly the instructions complained of would not justify a reversal of this case in view of the overwhelming weight of evidence in favor of appellee's contention.
Appellant Kornegay brought this suit against appellee Montgomery in the circuit court of Oktibbeha County to recover the statutory penalty and actual damages for cutting 21 pine trees on his land. The trial resulted in a verdict and judgment for Montgomery, from which judgment Kornegay appeals.
Montgomery owns 80 acres of land and of the 80 acres adjoining it on the east Kornegay owns the north 63 acres. In 1940 Montgomery cut 21 pine trees off of a strip of land between the 80 acres and the 63 acres 23 feet wide and extending the whole length of the 63 acres. The question was who owned this 23 foot strip. The evidence for Kornegay tended to show that in 1927 or 1928 he had the line run between the two pieces of land by a civil engineer, which survey showed that the strip of land in question belonged to his 63 acre tract and that since that time and up to the bringing of this suit in 1941 he had claimed it and exercised acts of ownership over it by cutting fire wood therefrom and fighting fires to protect the timber. He admitted in his testimony that when that survey was made he built a fence between the two tracts of land but set it back about 23 feet from his west line in order to make a roadway for his tenants. The evidence showed without conflict that for more than 10 years before this suit was brought Kornegay's fence was located that distance east of the line claimed by Montgomery to be the true line. In 1940 Kornegay had a civil engineer to run the line again. This survey showed the line to be approximately 23 feet west of the fence. This survey resulted in the suit.
On behalf of Montgomery the evidence tended to show that after the survey in 1928 he never heard of Kornegay making any claim to the strip of land and on the contrary that both of them recognized and acted on the fence as the line. He testified that he cut timber from it and exercised other acts of ownership covering a period of more than 10 years before the suit was brought. The verdict of the jury, of course, resolved the issue of fact in favor of Montgomery.
Kornegay bases his right to a reversal upon the giving of three instructions for Montgomery, one of which is in this language: "The court instructs the jury for the defendant that you cannot find for the plaintiff anything more than the actual value of the trees alleged to have been cut, at the time they were cut, unless you believe from a preponderance of the evidence that the defendant, W.N. Montgomery, wilfully trespassed upon the land of plaintiff, Tom Kornegay, and you cannot find for the plaintiff, for even the value of the timber unless you further believe from a preponderance of the evidence that the land from which said timber was removed was within the land owned, by him, or that he held the same by actual, adverse, open, and notorious possession for a period of ten years before said timber was removed, and that at no time did he abandon the property, with the intent to abandon, during said period of 10 years."
The other two instructions complained of are in substantially the same language; we, therefore, set out only one of them: "The Court instructs the jury that an agreed line is just as good and binding, as an established line even by Government monuments or surveys; and if you believe from all the evidence in this case that the fence has been erected for ten years or more as the agreed boundary between the properties of the parties to this suit, then such fence represents the true boundary, and no survey no matter how accurate, can disturb such established line, or legally change the same, so far as this suit is concerned."
The criticism of the first instruction is that it fails to properly define title by adverse possession in that it should have included "(1) actuality, (2) openness and notoriety, (3) exclusiveness, (4) duration and continuity, and (5) hostility." The criticism of the other two is they "were calculated to leave on the minds of the jury the impression that the very fact of a line having been run constituted an agreement that any fence erected at the time should constitute the boundary between the two properties." There is no merit in either criticism. We are of opinion that the language used by the court in McCaugh v. Young, 85 Miss. 277, 37 So. 839, 842, shows there is no merit in the criticism of the instructions: "The underlying principle on which is founded the rule requiring that possession must be open and notorious before it can be considered adverse to the real owner is that such character of possession is presumptive notice to the true owner of such possession and adverse claim. But the rule does not apply in cases where the party against whom the adverse claim is asserted has actual knowledge of such adverse possession. A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious and adverse. Dausch v. Crane, 109 Mo. [323], 336, 19 S.W. 61; Clark v. Gilbert, 39 Conn. 94; Alexander v. Polk, 39 Miss. 737; Ford v. Wilson [ 35 Miss. 490, 72 Am. Dec. 137], supra. The doctrine is concisely stated in this form: `If the owner have actual knowledge that the possession is adverse to his title, the occupancy need not be open, visible, and notorious. Notoriety is important only where the adverse character of the possession is to be brought home to the owner by a presumption.' See 1 Cyc., p. 999, par. c, and cases cited."
Affirmed.