Summary
In Snowden McSweeney Company v. Hanley, et al., 195 Miss. 682, 16 So.2d 24, this 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., pg. 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.'"
Summary of this case from Geoghegan v. KraussOpinion
No. 35468.
December 20, 1943.
1. ADVERSE POSSESSION.
An inclosure is not essential to adverse possession of land (Code 1930, sec. 2287).
2. ADVERSE POSSESSION.
When a fence or hedgerow is relied on to delineate boundaries of adverse claim to land, question is whether inclosure, like other acts of possession, is sufficient to fly the flag over land and put true owner thereof on notice that land is held under adverse claim of ownership (Code 1930, sec. 2287).
3. ADVERSE POSSESSION.
Evidence that boundary fence, down to which grantee in deed, omitting part of land purchased by him from description, took possession, was sufficient for continuous period of ten years since execution of deed to fly grantee's flag over omitted land, and put true owner thereof on notice that land was being held by grantee under adverse claim of ownership, established grantee's title to such land by adverse possession, even if fence was never sufficient to turn stock during any such continuous period (Code 1930, sec. 2287).
APPEAL from chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Henry Barbour, of Yazoo City, for appellant.
J.R. Williams had no color of title to the land in dispute and he and Union Producing Company failed to meet the burden of proving the adverse possession set up in themselves to that part of the East ten acres of the twenty acres off South end of N.E. 1/4 of Section 35, Township 10, Range 3 West, North and East of an old fence line shown by maps in the record, against Ben and Carrie Hanley, the record owners, and against the appellant, Snowden McSweeney Company, their lessee.
Mitchell v. Bond, 84 Miss. 72, 36 So. 148; Evans et al. v. Shows et al., 180 Miss. 518, 177 So. 786; Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; McCaughn v. Young, 85 Miss. 277, 37 So. 839; McMahon v. Yazoo Delta Lumber Co., 92 Miss. 459, 43 So. 957; Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Neal v. Newburger, 154 Miss. 691, 123 So. 861; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Ford v. Wilson, 35 Miss. 490; Shepherd v. Cox, 191 Miss. 715, 1 So.2d 495, 136 A.L.R. 1346. Brunini Brunini, of Vicksburg, Fielding L. Wright, of Rolling Fork, Ray Spivey Cain, of Canton, J.G. Holmes, of Yazoo City, and Vinson, Elkin, Weems Francis and Thomas Fletcher, all of Houston, Tex., for appellees.
The possession of J.R. Williams of the 10 acres involved from February 27, 1911, to the filing of this suit on July 23, 1941, clearly established in him an adverse possession title under the ten-year statute.
The existence of an effective adverse possession is a question of law established by an occupancy or possession in opposition to the true title and real owner under a claim of right for the statutory period.
Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Moore v. Neill, 117 Miss. 862, 78 So. 774; Greer v. Pickett, 127 Miss. 739, 90 So. 449; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Alexander v. Polk, 39 Miss. 737; Fant v. Williams, 118 Miss. 428, 79 So. 343; Leggett v. Norman, 192 Miss. 494, 6 So.2d 578; Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Metcalfe v. McCutchen, 60 Miss. 145; Evans v. Harrison, 130 Miss. 157, 93 So. 737; Magee v. Magee, 37 Miss. 138; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Jones v. Gaddis, 67 Miss. 761, 7 So. 489; Davis v. Bowmar, 55 Miss. 671.
Possession is adverse if taken and held under an honest, but mistaken, belief that the land so possessed is within the calls of the claimant's deed.
Metcalfe v. McCutchen, supra; Crowder v. Neal, supra; Evans v. Harrison, supra; Jones v. Gaddis, supra; Greer v. Pickett, supra; Schuler v. McGee, supra; Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509.
The fact that J.R. Williams, the adverse claimant, did not pay taxes on the 10 acres while Ben Hanley, the record owner, did pay taxes, does not militate against or destroy the adverse character of Williams' possession.
Daniels v. Jordan, supra; Evans v. Harrison, supra; Moore v. Neill, supra.
Miss Ruth Campbell, of Yazoo City, for appellee.
J.R. Williams and Union Producing Company failed to establish title by adverse possession.
Lovejoy v. McKibben, 113 Miss. 369, 74 So. 281; Magee v. Magee, 37 Miss. 138; Ates v. Ates, 189 Miss. 226, 196 So. 243; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Shepherd v. Cox, 191 Miss. 715, 1 So.2d 495, 4 So.2d 217; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Evans v. Shows, 180 Miss. 518, 177 So. 786; Barner v. Lehr, 190 Miss. 77, 199 So. 273; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Alexander v. Polk, 39 Miss. 737; Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Crosby Lumber Manufacturing Co. v. Elsas, 183 Miss. 107, 183 So. 499; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Buchanan v. Nixon, 80 A.L.R. 151, note 155; 2 C.J. 87, Sec. 77 and notes.
The dominant issue in this case is whether one J.R. Williams had, before the institution of this suit, acquired title by adverse possession to the south ten acres of the SE 1/4 of NE 1/4, Sec. 35, Tp. 10, R. 3 W., in Yazoo County.
This ten acres has been a part of what was known as the Jeffries land and was so when J.C. Peyton purchased the Jeffries property in 1881. Peyton had his residence on the ten acres mentioned, and some time about 1885 he constructed a barbed wire fence running along and upon the entire south line of the said SE 1/4 of NE 1/4. This fence was then and, according to the great weight of the evidence, has ever since been regarded as the line fence at that point between the Jeffries property and the land to the south.
Williams purchased the Jeffries place in 1911, the deed designating it as such, but the deed was so drawn that the ten acres above mentioned were not included in the description. Williams supposed, however, that his deed called for the land down to the fence line, and he took possession accordingly, the testimony being sufficient to show that at that time the fence was there at and on said south line and in a substantially good condition.
Williams having then taken possession of the said ten acres, the testimony preponderates that from 1911 down to the institution of this suit, some thirty years, he had cultivated a part or parts of the ten acres either by tenants or by hired hands for or during each year with the possible exception of two years, and that at no time had his right to said use and occupancy been questioned, although the owners of the adjoining land to the south, who lived in the immediate neighborhood, knew throughout all that long length of time that Williams was cultivating and using the ten acres as stated. And, according to the weight of the testimony, it was generally reputed and understood in the community that Williams was the owner of the said ten acres and down to the fence line. Some of the cultivated patches approached within a few feet of the fence.
The main issue which the parties have contested and towards which, more than any other, the evidence and argument have been directed, is whether the wire fence had been maintained since 1911 for any continuous period of as much as ten years in such a condition of repair as to effectively turn or hold cattle, this being a test which some of the parties litigant apparently have regarded as being of controlling importance in the proper decision in the case.
Our statute, Section 2287, Code 1930, does not require an inclosure as an essential to adverse possession, and that our reported decisions do not so require is definitely disclosed by Sproule v. Alabama, etc., R. Co., 78 Miss. 88, 29 So. 163. A hedge-row was held to be sufficient in Jones v. Gaddis, 67 Miss. 761, 7 So. 489. 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."
The witnesses have differed widely about the fence here in question. Some of them have said that throughout a period amounting to as much as twenty-five years since 1911 the fence has been continuously kept up by repairs from time to time so that throughout it was a substantial farm inclosure, while others have asserted that the fence was down for considerable gaps and never at any time would exclude cattle. If it be conceded that the fence was never at any continuous period of ten years since 1911 sufficient to turn stock, the preponderance of the evidence, when taken in connection with all the other facts heretofore stated, sustains the conclusion nevertheless that the fence was amply sufficient during a continuous period of as much as ten years since 1911 to fly the flag over the land and put the true owner on notice that the land within the fence was being held under an adverse claim of ownership, and this when taken in connection with all the other facts was all that was necessary to be shown.
If the maintenance of an inclosing fence were the only act or indicium of possession and the claim of adverse possession depended solely upon the inclosure, it may well be that the fence must be of such a character and so maintained for the statutory period as to exclude cattle, but as already stated that is not the case here, and the particular point is mentioned not as decision but by way of reservation.
Many other questions have been raised and argued, all of which we have considered, but we find none which would require a reversal of the decree.
Affirmed.