Delta Housing Development Corporation v. Mabel Johnson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-02127-COA
DELTA HOUSING DEVELOPMENT
CORPORATION
APPELLANT
v.
MABEL JOHNSON
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/21/2008
HON. JON M. BARNWELL
BOLIVAR COUNTY CHANCERY COURT
ALSEE MCDANIEL
DEREK D. HOPSON
MELISSA SELMAN MARTIN
DREW MCLEMORE MARTIN
DAVID NEIL MCCARTY
CIVIL - REAL PROPERTY
JUDGMENT OF EJECTMENT AGAINST
DELTA HOUSING DEVELOPMENT
CORPORATION
AFFIRMED: 04/06/2010
BEFORE MYERS, P.J., BARNES AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
This case comes before the Court from a judgment entered by the Chancery Court of
Bolivar County granting Mabel Johnson’s (Mabel)1 action for ejectment and directing Delta
Housing Development Corporation (Delta) to remove all infrastructure that it placed on
Mabel’s property. Specifically, the order mandates the removal of a fire hydrant, manhole,
1
The appellee’s name is spelled as Mable and Mabel in the record; however,
according to the appellee, the correct spelling is Mabel.
and a sewage-lift station, as well as water and sewer lines, and the encroaching portions of
a street. Feeling aggrieved, Delta appeals to this Court and argues the following: (1) the
adoption of the plat of the Rox-C-Sneed subdivision by the City of Mound Bayou in 1947
is presumptively valid; (2) the action filed by Mabel is barred by res judicata; and (3)
Mabel’s action for a mandatory injunction is barred by laches and/or equitable estoppel.
Finding no error, we were affirm the chancery court’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2.
In 1944, Mabel’s father, Holt Johnson, purchased an eighty-acre tract of land in
Mound Bayou, Mississippi.2 In 1947, the City of Mound Bayou adopted a plat for the RoxC-Sneed subdivision, which was recorded in the land records in the office of the Bolivar
County Chancery Clerk; this property lies adjacent to Mabel’s east-property line. The RoxC-Sneed subdivision plat, as the chancery court would later determine, contained an error in
the description of the west-property line, which created a “pie shape” overlap onto Mabel’s
property, up to eighteen-feet wide.
¶3.
In 1988, the “unplatted portion of Block 2" in the Rox-C-Sneed subdivision was sold
for taxes by the Bolivar County Tax Collector and purchased by Herman Johnson.3
Following the redemption period, the chancery clerk executed a tax deed to Herman. In
2
Mabel later inherited the property from Holt; to avoid any confusion, it will
hereinafter be referred to as Mabel’s property.
3
Herman is not related to Mabel.
2
1993, Herman executed a quit claim deed to his wife, Alfreta Johnson.4 In 1994, Herman and
Alfreta filed a petition in the chancery court to confirm title and remove clouds on the
property. A judgment confirming title was entered on February 2, 1995. Alfreta shortly
thereafter conveyed 6.02 acres of the property by warranty deed to Delta.5 After receiving
the warranty deed to the property, Clanton Beamon, Executive Director of Delta, submitted
a preliminary plat to the Mayor and Board of Alderman of Mound Bayou for approval of a
subdivision to be called the Sam Thompson Green Acres Subdivision. The plat eventually
was adopted by the City of Mound Bayou in 2006.
¶4.
Prior to the judgment confirming title in 1995, Delta had contracted with Hooker
Engineering Services to conduct a survey of the property. According to the record, Beamon
stated in his testimony that before Hooker conducted the survey, he had assumed that
Mabel’s property line was demarcated by a drainage ditch. Beamon said that upon inspection
of the property following the survey, he was surprised to discover a survey-stake angled out
into Mabel’s field.
¶5.
According to Mabel, she learned through Beamon sometime in early 1996 that Delta
intended to develop the property adjacent to hers. Mabel told Beamon that she had no
4
Alfreta and Mabel, also of no relation, grew up together. Alfreta lived in a house
located behind Mabel’s property. According to Mabel, she and Alfreta walked to school
together every day, which required them to walk across Mabel’s property, a portion of which
included the disputed area.
5
According to the record, Herman was a board member of Delta at the time; Herman
also served as alderman on the Mound Bayou City Council from 1970 to 2000.
3
problem with the project as long as the construction did not interfere with her property.
¶6.
In July 1996, Mabel received a letter from Delta’s legal counsel informing her that,
based on the survey conducted by Hooker, Delta’s west property line extends to and across
land claimed to be owned by her. The letter requested that Mabel provide Delta with any
surveys or legal documents she might have reflecting otherwise.
¶7.
Mabel sought legal counsel. She spoke to a number of attorneys, but for various
reasons, she was unable to attain their assistance. Eventually, she hired Jeffrey Levingston.
Levingston assisted Mabel for a short period in the fall of 1996 before he withdrew from the
matter, due to an apparent conflict.
¶8.
In October 1996, Delta’s contractor, Jimmy Douglas, staked the areas where the utility
structures in question were to be placed. Levingston sent correspondence to Delta advising
the company that it was encroaching onto Mabel’s property. Levingston informed Delta that
a drainage ditch delineates Mabel’s east-property line. Levingston disclosed that he was not
sure what a survey would show in terms of record title, but he was confident Mabel at least
had title by virtue of adverse possession; thus, he would not hesitate filing suit in order to
preserve Mabel’s rights. Levingston strongly suggested to Delta that any construction
activities should be carried out east of Mabel’s boundary line. Construction continued, and
at some point in October 1996, Mabel had Beamon arrested for trespassing. On the advice
of Levingston, Mabel dropped the charges.
¶9.
Sometime in the first half of 1997, after Levingston withdrew from the case, Mabel
hired her present attorney, Derek Hopson. In June of that year, she contracted with Allen &
4
Hoshell, Ltd. to conduct a survey to establish her property’s boundary lines. Meanwhile,
Delta continued construction. Douglas filled in the ditch that supposedly marked Mabel’s
east-property line. He installed the sewage-lift station in December 1996; he finished the
water and sewer lines in June 1997; and two-months later, he completed the roadbed.
According to Mabel, a pecan tree located on the strip of land in question, and which was
planted there by her late son many years ago, was removed during the process.
¶10.
On August 19, 1997, Mabel filed a petition in the chancery court against Delta,
Herman, and Alfreta, which requested a temporary injunction be issued restraining Delta
from carrying on development and construction operations on her real property.6 The
chancery court issued a temporary restraining order (TRO) that same day. According to the
record, a proposed order was drafted by Hopson and approved by Delta’s legal counsel,
which would have extended the TRO. However, the order was never signed by the
chancellor.
On September 9, 1997, Mabel filed an amended petition for permanent
injunction, restoration of land, order confirming title, and monetary damages.
¶11.
That same day, on September 9, Delta filed its answer to the TRO petition filed by
Mabel on August 19. Delta claimed that the exact boundaries of the property described in
Mabel’s petition were in dispute, and it pleaded the affirmative defenses of res judicata and
laches. According to Delta, because the chancery court had entered a final decree in 1995,
adjudicating its predecessor’s title to the unplatted portion of the Rox-C-Sneed subivision,
6
Both Herman and Alfreta, eventually, were dismissed from the case.
5
Mabel’s action was barred under the doctrine of res judicata. Delta also claimed that Mabel
was aware of the development project as early as 1994, and because she took no legal action
to assert and/or secure her rights, her action was barred under the doctrine of laches. Delta
filed a counterclaim against Mabel, alleging, inter alia, that as a result of the TRO, it suffered
losses in excess of $50,000. Delta sought compensatory damages in the amount of $100,000.
According to the record, Delta continued construction after the TRO expired.
¶12.
On January 16, 1998, the chancery court issued an order appointing David Evans, an
experienced and qualified land surveyor, as special master for the purpose of deciphering and
interpreting the parties’ respective and conflicting surveys. Evans was instructed to inspect
the land in question. Evans found that the Allen & Hoshall survey correctly established
Mabel’s east-property line. According to Evans, the Rox-C-Sneed subdivision plat, which
was filed in the office of land records for Bolivar County subsequent to the recordation of
Holt’s deed, contained an incorrect course run for its west-property line. When Hooker
conducted its survey, it drew from this erroneous description, which resulted in a zero-toeighteen-foot overlap onto Mabel’s property.7
7
Mabel’s east-property line runs from the northeast corner of the property directly
south to an old “railroad iron” which, according to the Allen & Hoshall survey, marks the
southeast corner of her property. The west-boundary line of the Rox-C-Sneed subdivision
is described as starting from the northwest corner of the northeast quarter of the southeast
quarter of Section-T.-23N.-R.5 West. This corner lies in common with the northeast corner
of Mabel’s east-property line. Instead of running due south, the Rox-C-Sneed subdivision’s
west-boundary line uses a southwest, one-degree, bearing. In his deposition, Evans indicated
that drawing from the course run described by the Rox-C-Sneed subdivision plat results in
a line ending eighteen feet west of the “railroad iron” found by Allen & Hoshall.
6
¶13.
On February 25, 1998, the chancery court issued an order accepting the special
master’s findings. Delta did not contest these findings.
¶14.
The matter was set for trial to begin on April 17, 1998. Mabel thereafter amended her
complaint to include ownership by adverse possession of another strip of land some thirty
to thirty-five-feet wide which runs parallel to her east boundary line as established by the
Allen & Hoshall survey. The additional strip of land was inclusive of property on which two
houses had recently been constructed and for which the United States held mortgages and
deeds of trust. As the United States was a defendant, the case was removed to the United
States District Court for the Northern District of Mississippi. In 2005, the district court
granted summary judgment in favor of the defendants which was affirmed by the Fifth
Circuit Court of Appeals.8 The United States was subsequently dismissed as a party, and the
case was remanded to chancery court for trial of the remaining claims.
¶15.
Upon trial of this cause, the chancery court entered a judgment granting Mabel’s claim
for ejectment and order confirming title. The chancery court directed Delta to remove all the
above-mentioned infrastructure from her property.
STANDARD OF REVIEW
¶16.
We defer to a chancery court’s findings, unless its decision “is manifestly wrong and
8
The district court found that Mabel’s claim of title to the thirty-five-foot strip of land
by adverse possession vanished when the land sold for taxes in 1988; thus, the defendants
were entitled to judgment as a matter of law. As noted in the district court’s memorandum
order, the defendants did not dispute that Mabel held record title to the eighteen-foot strip
of land and admitted that there was an encroachment thereof.
7
not supported by substantial credible evidence, or unless an erroneous legal standard was
applied.” Saliba v. Saliba, 753 So. 2d 1095, 1098 (¶11) (Miss. 2000). On questions of law,
our standard of review is de novo. Harrison County v. City of Gulfport, 557 So. 2d 780, 784
(Miss. 1990).
DISCUSSION
I. Adoption of the Rox-C-Sneed Subdivision Plat
¶17.
Delta argues that because the Rox-C-Sneed subdivision plat was adopted by the City
of Mound Bayou in 1947 and duly recorded in the land records of Bolivar County, a
presumption of validity exists in its favor. Relying on Taquino v. City of Ocean Springs, 253
So. 2d 854, 855 (Miss. 1971) and Luter v. Oakhurst Assoc., Ltd., 529 So. 2d 889, 894 (Miss.
1988) for authority, Delta contends that the adoption of the subdivision plat by the City of
Mound Bayou is presumptively valid, and that any party seeking to attack its validity has the
burden to show that the action was arbitrary, carpricious, discriminatory, or beyond the legal
authority of the Mayor and Board of Aldermen of Mound Bayou. Delta submits that Mabel
failed to adduce evidence in this matter to rebut this presumption. Therefore, the Rox-CSneed subdivision’s plat should be declared valid, as well as all conveyances made thereafter.
Also, Delta claims that the City of Mound Bayou is a necessary party to this action pursuant
Rule 19 of the Mississippi Rules of Civil Procedure.
¶18.
Both Taquino and Luter are distinguishable from the matter before this Court.
Taquino dealt with an action by the Mayor and Board of Aldermen of Ocean Springs, as to
whether land owners should be required to dedicate a portion of their property to allow the
8
widening of an existing public street adjacent to a proposed subdivision. Taquino, 253 So.
2d at 855. The supreme court found that, according to the official minutes of the city
governing board for January 27, 1970, it was determined that the City of Ocean Springs did
not require a fifty-foot right of way by the subdivision due to economical reasons and
feasibility. Id. As was also reflected by the minutes, the City of Ocean Springs then
approved the application of the plat for the subdivision. Id. None of the appellants appeared
at the meeting; however, they objected to the action taken by the Mayor and Board of
Aldermen on appeal to the circuit court, which thereafter affirmed the action taken by the
City of Ocean Springs. Id. at 854. In affirming the circuit court’s judgment, the supreme
court stated as follows: “The action of the City Governing Board is presumed to be valid.
The appellants, in attacking that action, must show that it was arbitrary, capricious,
discriminatory, or beyond the legal authority of the City Board.” Id. at 855 (citations
omitted).
The court held that the appellants did not meet their burden, and it found the
action taken by the City of Ocean Springs in preliminarily approving the subdivision plat
“was supported by substantial evidence, and was not arbitrary, capricious or discriminatory.”
Id.
¶19.
Luter involved a zoning issue. The City of Tylertown failed to have a zoning
ordinance read aloud at a public meeting, and it did not have a roll call before its enactment.
Luter, 529 So. 2d at 894. The supreme court reiterated that “[t]he official action of the
governing authorities of a municipal corporation in this state are presumed valid, albeit
rebuttably so.” Id. at 894 (citations omitted). The Luter court explained:
9
What this means–and the point is critical in this case–is that those who would
challenge the formal regularity of the prior act of a municipal corporation bear
the burden of demonstrating affirmatively wherein the failures occurred. See
City of Biloxi v. Cawley, 278 So. 2d 389, 390 (Miss. 1973); City of Greenwood
v. Jones, 91 Miss. 728, 46 So. 161, 163 (1908). No doubt as a practical matter
proof of a negative may be difficult, particularly where a number of years have
elapsed. Yet we regard the presumption vital in that otherwise untold scores
of official actions may be invalidated, not because the board or agency failed
of compliance, but because the draftsman of the minutes failed to use the
requisite magic words. See Paine v. Underwood, 203 So. 2d 593, 597 (Miss.
1967).
Id. The supreme court concluded that the minutes of the Mayor and the Board of Aldermen’s
meeting adequately reflected their intent, and the court held that this was “enough to raise
a presumption of regularity shifting to the opponents the burden of affirmative demonstration
wherein the [City’s] action failed [to comply] with essential formalities.” Id. at 895.
¶20.
In the instant case, we are without the minutes reflecting the City of Mound Bayou’s
adoption of the Rox-C-Sneed subdivision plat in 1947, as both parties agree the minutes
could not be located.
Thus, we have no way of knowing whether the City’s action
conformed to the procedural formalities required by law. See id. at 894 (“As a man’s will
is invalid and ineffective if he fails to conform to the formalities of the statute, so a municipal
ordinance is invalid if it has not been enacted according to procedural prerequisites.”).
However, it is unnecessary for us to express whether such omission constitutes what the
Luter court meant by “proof of a negative.” See id. Whatever presumptive validity might
have existed with the description of the adopted plat’s west-boundary line, Mabel
successfully overcame it by proving that the description was in error.
¶21.
“[A] determination of the legal boundary between properties is a question of fact for
10
the chancellor.” Kleyle v. Mitchell, 736 So. 2d 456, 459 (¶8) (Miss. Ct. App. 1999) (citing
Farris v. Thomas, 481 So. 2d 318, 318 (Miss. 1985)). Delta filed no objection, as set forth
under Mississippi Rules of Civil Procedure 53(g)(2), to the findings of the special master
appointed by the chancery court to locate the true boundary line between the two properties.
Therefore, Delta waived any objections it may have had with the factual conclusions
submitted by the special master and accepted by the chancery court in this matter. Cuevas
v. Kellum, 12 So. 3d 1154, 1159 (¶21) (Miss. Ct. App. 2009). The chancery court determined
that the Rox-C-Sneed subdivision plat contained an improper course description, which
Hooker relied upon in conducting its survey. The Allen & Hoshall survey, on the other hand,
conclusively established Mabel’s east-property line. The court ultimately concluded that
Mabel and her predecessors-in-title were the rightful owners of the strip of land in dispute.
¶22.
This decision by the chancery court effectively means that the City of Mound Bayou,
in 1947, adopted a subdivision plat which contained an erroneous legal description,
encompassing Mabel’s east-property line. Because one may not subdivide and convey or
dedicate land one does not own, we can confidently say that the City of Mound Bayou acted
without legal authority in that instance, at least to the extent its action affected the preexisting
rights enjoyed by Mabel and her predecessors-in-title. See, e.g., Eugene McQuillin, 11A The
Law of Municipal Corporations § 33.12-70 (3rd ed.).
¶23.
As to Delta’s contention that the City of Mound Bayou was a necessary party, we fail
to see what interest, actual or mistaken, the City had with this strip of land. When this action
began, either Delta or Mabel owned it. Based on our review of the record, the conveyance
11
to Delta involved the unplatted portion of the Rox-C-Sneed subdivision, with no dedication
provision for the City contained therein. See, e.g., Albright v. Baker, 213 Miss. 234, 238, 56
So. 2d 703, 704 (1952). We do not find that the City’s absence in this matter prevented the
chancery court from granting complete relief between Delta and Mabel. See M.R.C.P. 19.
¶24.
This issue is without merit.
II. Res Judicata
¶25.
Delta avers that pursuant Mississippi Code Annotated section 27-45-23 (Rev. 2006),
a conveyance to a purchaser at tax sales by the chancery clerk, after the period of redemption
under law, vests in the purchaser a perfect title with the immediate right of possession. Thus,
the final judgment entered by the chancery court in 1995 vested perfect title in Herman and
in subsequent conveyances. Therefore, Mabel’s action should be barred by res judicata. We
disagree.
¶26.
First, not only was Mabel not made a party to that action, she clearly did not receive
proper notice of it as required by Mississippi Code Annotated section 27-43-3 (Supp. 2009).
See, e.g., Curtis v. Carter, 906 So. 2d 758, 759 (¶¶6-7) (Miss. 2005) (affirming chancellor’s
decision to set aside tax sale insofar as it pertained to those persons with ownership interest
in the property who were without proper notice). Further, section 27-45-23 also states, “[n]o
such conveyance shall be invalidated by any court except by proof that the land was not
liable to sale for the taxes . . . .” Mabel submitted ample evidence that her property has never
been the subject of delinquent taxes; accordingly, this strip of land was not liable to sale for
non-payment of taxes.
12
¶27.
Mabel was not barred from asserting her ownership rights in this matter. This
assignment of error is without merit.
III. Equitable Estoppel and/or Laches
¶28.
Delta claims that a balancing of the equities in this matter clearly weighs in its favor,
and submits that the chancery court erred when it rejected its defenses of laches and/or
equitable estoppel. Delta contends that before Mabel filed her action for injunction in
August 1997, she had actual notice of the development project both by virtue of the initial
survey that was conducted in April 1994 and via Beamon, who personally met with Mabel
in March 1996 and discussed the project with her. Delta further asserts that the property at
issue is valued at $800 and that a mandatory injunction requiring the removal of the
infrastructure now in place would cost the company approximately $60,000 to carry out. In
other words, the issuance of the injunction would cause Delta to suffer loss far greater than
the loss Mabel would suffer if the injunction were not issued.
¶29.
In Shattles v. Field, Brackett & Pitts, Inc., 261 So. 2d 795, 797-98 (Miss. 1972), the
supreme court reiterated the rule regarding property rights and the issuing of injunctions
pertaining to such rights:
The general rule is that a landowner is entitled to an injunction directing the
removal of a trespassing structure on his land erected thereon by the owner of
adjoining land. The facts that the aggrieved owner suffers little or no damage
from the trespass, that the wrongdoer acted in good faith and would be put to
disproportionate expense by removal of the trespassing structures, and that
neighborly conduct as well as business judgment would require acceptance of
compensation in money for the land appropriated, are ordinarily [not] reasons
for denying an injunction. Rights in real property cannot ordinarily be taken
from the owner at a valuation, except under the power of eminent domain.
13
Only when there is some estoppel or laches on the part of the plaintiff, or a
refusal on his part to consent to acts necessary to the removal or abatement
which he demands, will an injunction ordinarily be refused.
¶30.
Laches and equitable estoppel are similar legal principles. Laches arises from a
complaining party’s failure to assert a right or claim “for an unreasonable and unexplained
length of time, under circumstances prejudicial to [the] adverse party.” Cannada v. Marlar,
185 So. 2d 649, 651 (Miss. 1966) (citation omitted). Equitable estoppel comes into play in
situations where a party has changed his or her position in reliance upon the conduct or
representation of another and as a result suffers detriment or prejudice caused by the change
of position. PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 206 (Miss. 1984) (citation omitted).
What constitutes laches or equitable estoppel has been held to depend on the facts and
circumstances of each particular case. See Cannada, 185 So. 2d at 651 (discussing laches)
and Bright v. Michel, 242 Miss. 738, 749, 137 So. 2d 155, 159 (1962) (same, with respect
to equitable estoppel). Therefore, a trial court’s decision to accept or reject either doctrine
will not be disturbed on appeal when the decision’s factual findings are supported by
substantial evidence. Cannada, 185 So. 2d at 651.
¶31.
On the question of whether Mabel should have been barred from her cause of action
under the doctrine laches, we note that this particular defense has been viewed by our
supreme court with disfavor in similar matters. In Clanton v. Hathorn, 600 So. 2d 963, 966
(Miss. 1992), before addressing the appellant’s laches claim on the merits, the court opined
as follows:
The problem of laggardly landowners who ignore claims or encroachments
14
over long periods of time has been addressed by the [L]egislature. Miss. Code
Ann. § 15-1-13 (1972) is our familiar ten-year adverse possession statute.
That act would seem to occupy the field. This would certainly seem the
premise of our cases that laches is not a defense to an action if the plaintiff
proceeds within the period of the applicable statute of limitations. Hans v.
Hans, 482 So. 2d 1117, 1121 (Miss. 1986); Continental Oil Co. v. Walker, 238
Miss. 21, 34 117 So. 2d 333, 337-38 (1960); Griffith, Mississippi Chancery
Practice, 344-45 (2d Ed. 1950). It is difficult to imagine a case where we
would credit a laches defense on an adverse claim to real property on grounds
other than those set forth in the statute and cases reading [the] same. Of
course, it is not necessary that we address so sweeping a point, it being
sufficient that today’s is not such a case.
Cf. Pittman v. Currie, 414 So. 2d 423, 428 (Miss. 1982) (reiterating that Miss. Code Ann. §
15-1-17, which prescribes a two-year limitation to file suit to cancel tax titles following the
period of redemption, does not apply when the tax sale is void and the owner has remained
in possession).
¶32.
That said, assuming arguendo that Delta’s theory has credence, we find no error with
the chancellor’s decision to reject this claim on the merits. After considering the evidence
submitted by both sides and hearing their respective arguments, the chancellor found that
Mabel did not act with unreasonable delay in bringing her action. According to the
chancellor, regardless of which point in time Mabel first learned of the development project,
she had no idea at that time that the structures in question would be placed on her property.
When Mabel discovered that Delta was claiming ownership to the strip of land she believed
rightfully belonged to her, she acted as expeditiously as could be expected of a person in her
situation to obtain the information necessary to protect her interests.
¶33.
As to the inequitable loss Delta claims it will suffer by the mandatory injunction, such
15
a result is a factor for the chancellor to take into consideration. However, it is not the
controlling consideration on the question of laches or equitable estoppel. Cf. Bright, 242
Miss. at 749, 137 So. 2d at 159 (addressing estoppel).
¶34.
We note that Delta did not affirmatively raise the defense of equitable estoppel in its
pleadings; however, it was discussed at the hearing. Thus, we find Rule 15(b) of the
Mississippi Rules of Civil Procedure controlling. On this question, we find no merit to
Delta’s contention that Mabel should be estopped to complain of the encroachment. Nothing
in the record remotely suggests that Delta changed its position in reliance upon Mabel’s
conduct. Indeed, before construction began, Mabel told Delta not to interfere with her
property. Once it became apparent to Mabel that Delta had plans to place the structures on
her property, she expressly warned the company that there would be legal consequences if
they proceeded. Delta disregarded her cautionary advice and continued with construction;
Mabel followed through on her word, and she had Beamon arrested for trespassing.
¶35.
Based on our review of the record, Delta received numerous indicators that should
have given the company cause for concern in this matter. Apart from Mabel’s admonitions,
Delta was put on notice by others who were familiar with the two properties that it was
mistaken as to the true property line. The record even indicates that Hooker informed Delta
that there might be a question with the Rox-C-Sneed subdivision plat. Yet, rather than
exercise precaution, Delta proceeded forward. This issue is without merit.
¶36. THE JUDGMENT OF THE BOLIVAR COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
16
KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND
MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
17
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