Naomi Tutor v. Bobby Pannell
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01488-COA
NAOMI TUTOR
v.
BOBBY PANNELL, EDWARD L. MEDDERS AND WIFE, MARTHA J.
MEDDERS
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEES
01/20/2000
HON. JACQUELINE ESTES MASK
PONTOTOC COUNTY CHANCERY COURT
MICHAEL N. WATTS
J. MARK SHELTON
WALTER ALAN DAVIS
BRADFORD L. HENRY
PHILLIP L. TUTOR
CIVIL - REAL PROPERTY
ADVERSE POSSESSION CLAIMS DENIED. PROPERTY
LINE BOUNDARY ESTABLISHED
REVERSED AND REMANDED-2/26/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/19/2002
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1. Naomi Tutor appeals from a judgment rendered by the Chancery Court of Pontotoc County which
purported to settle a boundary line dispute in favor of appellees, Bobby Pannell, Edward Medders and
Edward's wife, Martha. Tutor asserts six issues for review which are: (1) whether the chancellor made any
final determination with regard to the property lines in this case, (2) whether the chancellor's decision in this
matter is self-contradictory, (3) whether the chancellor improperly considered evidence not presented at the
trial of this matter, (4) whether the chancellor manifestly erred by finding that the "Pannell" deed controlled
over the "Tutor" deed, (5) whether the chancellor's finding regarding the north property line of the
"Medders" property is supported by substantial evidence, and (6) whether the chancellor was in manifest
error in determining that the appellant, Ms. Tutor, did not acquire any property in this matter by adverse
possession. We find merit in issues one, two, four and five; therefore, we reverse and remand.
FACTS
¶2. This case involves a boundary line dispute between adjacent property owners in northern Pontotoc
County, Mississippi. Bobby Pannell, Edward Medders and Edward's wife, Martha, filed a complaint
seeking to quiet title to their respective tracts of property against Naomi Tutor. Tutor counterclaimed on the
same ground, along with other claims not at issue. The dispute centers primarily around the western
boundary line of the Medderses' property in relationship to Tutor's property and the northern and western
boundary line of Pannell's property in relationship to Tutor's property. Tutor owns approximately 60.87
acres that adjoin Pannell's tract to the north and west. The Medderses own a 1.24 acre tract to the south of
Pannell's land which adjoins Tutor's property on the Medderses' west property line. A fence runs along the
north boundary line of the Pannell tract, and the conflict revolves around the fence. In addition, a field road
runs south of the fence.
¶3. During the hearing before the chancellor, several lay and two expert witnesses gave testimony. The lay
witnesses were Jack Savely, tax assessor for Pontotoc County, Mike Sappington, Tutor, Tutor's son, Rex,
Pannell, and Edward Medders. The two expert witnesses, James Akins and Rex Smith, are both surveyors
who surveyed the disputed areas. Both of these surveys were admitted into evidence. The Akins survey
was offered by Pannell and the Medderses, and the Smith survey was offered by Tutor. According to the
Akins survey, the fence diagonally crossed the actual boundary line. On the other hand, according to
Smith's survey, the boundary line was south of the fence.
¶4. Sappington, the grandson of the predecessors in title to Bobby Pannell, testified that the Pannell and
Tutor properties were sold from his grandmother's estate. More importantly, his parents once resided on
the Pannell property when Tutor's husband was alive. Sappington testified that his family claimed property
to the width of the field road.
¶5. Medders testified that he had observed Tutor's lessee using the field road for ingress, egress and has
witnessed the lessee performing work on the road. Medders also testified that he was purchasing Pannell's
property and that he was told by a realtor that the property line extended to the fence. Yet, Medders stated
that he did not know if the realtor had the property surveyed.
¶6. Pannell and Savely testified that Pannell's and the Medderses' tracts included the fence. Savely also
testified that the tax apportionment for Pannell's and the Medderses' tracts extended to the fence.
¶7. Tutor testified that she did not know where the lines were, that she had never told anyone to get off her
land, that she had used the field road for twenty-one years and that she had never mowed or bush-hogged
the property. Furthermore, Tutor testified that the fence had been built in 1987. Rex Tutor testified that his
father built the fence. He also testified that his family's property included the field road. Rex explained that,
when the fence was built, his father had to leave the space for the field road in order to access the Tutor
property.
¶8. After Pannell and the Medderses rested their case, the chancellor stated in the presence of both
attorneys, "The Court will hold this in abeyance until I have a deraignment of title and . . . . I would ask both
lawyers to present any finding of fact and conclusions of law that they would like for me to consider in
making my decision." Both attorneys agreed. At some later point, the attorney for Pannell/Medders
presented the chancellor with a deraignment of title.
¶9. Following the submission of the deraignment of title, the chancellor issued a memorandum opinion and
judgment wherein she found that neither Tutor nor Pannell had adversely possessed the property which
encompasses the field road because neither could satisfy the six elements necessary to claim adverse
possession. Absent adverse possession, the court concluded that the northern boundary of the Pannell tract
was established by the Akins survey because it was the most credible. Additionally, the chancellor found the
factual dispute regarding the western boundary line of Pannell's and the Medderses' properties to be
insignificant. The reason for this was Tutor's failure to offer any evidence which would indicate that the fence
which runs north and south along the western boundary of the Pannell's and Medderses' tracts is not the
boundary line. Consequently, the chancellor found that the western boundary line of Pannell's and the
Medderses' tracts was the fence line as it existed the day of the trial. Thus, title as to both the northern
boundary and western boundary was quieted in favor of Pannell and the Medderses. Tutor's other claims
were dismissed.
¶10. Tutor filed a motion to reconsider. The chancellor denied the motion but modified her previous findings
as follows:
[T]he Court does not find the survey of James Akins, Rex Smith or Dean McCrae(1) to conclusively
establish the boundary lines at issue. Any language in the original Memorandum Opinion and Judgment
to the contrary is hereby set aside. Rather than solving the issue, however, this only makes it harder to
the extent that there now exists an overlap of the boundaries between the two tracts of property.
Therefore, this Court must determine which party actually owns the property contained in the overlap.
The chancellor then determined that the Pannell and Medders tracts were deeded from a common source
prior in time to the conveyance of the Tutor tract, and therefore, the earlier deeds took precedence in
determining the property lines in issue.
ANALYSIS OF ISSUES PRESENTED
1. Determination of the Property Lines and Evidence in Support Thereof
¶11. Issues one, two, four and five are interrelated. Therefore, for purposes of discussion and resolution,
we have collapsed these three issues into this reformulated heading. As a result of our decision to reverse
and remand, issue three is moot; therefore, we will not address it beyond our brief discussion in footnote
two. However, before we embark upon our discussion, we resort to our standard of review which is a
limited one. In the Matter of R.B., A Minor, by and Through Her Next Friend, V.D. v. State of
Mississippi, 790 So. 2d 830 (¶10) (Miss. 2001). The findings of a chancellor are upheld unless those
findings are clearly erroneous. Id. at (¶11). If substantial evidence exists to support the chancellor's findings
of fact, broad discretion is afforded her determination. Id. A finding of fact is "clearly erroneous" when
"although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been made." Id.
¶12. Tutor contends that the chancellor never made a determination as to the actual boundaries, as
established by an actual survey, of the properties in this dispute. Tutor further contends that the chancellor
merely made a legal determination that, to the extent that Pannell's, the Medderses' and Tutor's deeds
conflicted, the Pannell's and Medderses' deeds control over Tutor's deed. On the other hand, Pannell and
the Medderses argue that the court clearly established the northern boundary by accepting the credibility of
the Akins survey; therefore, they argue that the chancellor made a final determination regarding the property
lines in this case. They also argue that the Akins survey accurately describes the Pannell tract which includes
the alleged overlap; therefore, the chancellor held that the Pannell and Medderses tracts were entitled to the
overlap which is described in the Akins survey. In addition, they argue that both the "Memorandum Opinion
and Judgment" and the "Order Denying Motion to Reconsider" should be read together in order to find
consistency.
¶13. In the order denying Tutor's motion to reconsider, the chancellor states, "As set forth in the original
Memorandum Opinion and Judgment but clarified herein, the Court cannot but conclude the rightful owners
of the property contained within the overlap are the Plaintiff." The disputed property claimed by Pannell and
the Medderses was surveyed by Akins using the deeds of their respective properties. The property lines for
Pannell's and the Medderses' property, as established by the Akins survey, were in accord with the
property lines claimed by Pannell and the Medderses. Therefore, the chancellor determined that the rightful
owners of the property claimed by the Pannell/Medders were Pannell and the Medderses. However, as will
be discussed later, this determination, unanchored by a survey, could not settle the issue as to the physical
existence of the boundary lines.
¶14. As already observed, the chancellor concluded that the rightful owners of the property contained
within the overlap were Pannell and the Medderses because their title preceded Tutor's title. She based this
conclusion on her analysis of the deraignments of title(2) which, in her opinion, clearly established that both
tracts were once contained within a single tract and that the Pannell/Medders tracts were conveyed prior in
time to appellant's tract.
¶15. For two reasons, this Court is perplexed by the chancellor's deductions. First, after careful
examination of the deraignments of title, this Court is unable to determine if the tracts in question derived
from a common tract. If the tracts in question did not derive from a common tract of land, any one deed
fails to control any other deed. Secondly, even if the chancellor's discernment of the deraignments of title is
superior to ours, without an acceptable survey establishing boundary lines on the ground, this Court is
unable to agree that the northern boundary line has been established. The deeds, without a supporting
survey, fail to establish a northern boundary line. As previously noted, the chancellor found that neither of
the surveys conclusively established the boundary lines at issue. We reverse and remand in order for the
lower court to establish conclusively the northern boundary line.
¶16. As to the western boundary lines, the chancellor found, as we have already pointed out, the factual
dispute to be insignificant regarding these because, according to the chancellor, Tutor failed to offer any
evidence which would indicate that the fence which runs north and south along the western boundary of
Pannell's and the Medderses' tracts is not the boundary line. In other words, the chancellor perceived the
western lines of the properties to be clear and not subject to significant factual dispute. Yet, the chancellor
failed to make a final legal description of the western property lines because she rejected all surveys which
would have established the lines. We reverse and remand for the chancellor to make a determination as to
the legal description of the western property lines.
2. Establishment of Ownership by Adverse Possession
¶17. Tutor contends that the chancellor erred in concluding that she failed to carry her burden of proof as to
her adverse possession claim. Tutor argues that the only evidence of other use is the gratuitous mowing of
grass by Pannell who always believed the property belonged to Tutor. In addition, Tutor points out that the
property inside her fence was only used by her and her tenants. Thus, she contends that all property within
her fence should have been determined hers by adverse possession.
¶18. On the other hand, Pannell and the Medderses admit that Tutor and her tenants used the field road.
However, they assert that Tutor failed to use the field road exclusively.
¶19. The chancellor found that Tutor had not adversely possessed the property lying between the fence and
the field road. The chancellor found that the element of exclusivity was not shown because other persons
utilized the "field road" area. Again, the problem with the chancellor's finding is that, in the absence of an
acceptable survey specifying the boundaries of the disputed areas, it is impossible to determine what areas
are claimed to have been adversely possessed.
¶20. We note that, according to the Akins survey, which the chancellor found to be more credible, the
fence runs across the northern boundary of Pannell's tract in a southwesterly to northeasterly direction and
crisscrosses the northern boundary of the Pannell tract at approximate midpoint. This placement of the
fence results in approximately eighteen feet of the Pannell tract on the southwestern end of the tract being
located north (or inside) of the fence. We agree with Tutor that there is absolutely no evidence that belies
her claim of adverse possession to the area within the fence. Therefore, we also reverse and remand on this
issue for further consideration by the chancellor.
¶21. In summary, we reverse and remand this case to the trial court with directions to make a determination
regarding an acceptable survey and to adjudicate the related issues, including adverse possession, after that
has been done.
¶22. THE JUDGMENT OF THE CHANCERY COURT OF PONTOTOC COUNTY IS
REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEES.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, AND MYERS, JJ.,
CONCUR. THOMAS, CHANDLER AND BRANTLEY, JJ., NOT PARTICIPATING.
1. The McCrae survey was ordered by the court, and although the chancellor referred to the Dean
McCrae survey, our examination of the record reveals that the survey was never admitted into
evidence.
2. Tudor contends that the chancellor erroneously relied on the deraignments of title because they
were submitted after the trial, not during the trial. We find no merit in this contention. As previously
noted, at the end of Pannell's and the Medderses' case, the chancellor clearly advised both parties
that she would hold her decision in abeyance until she had received a deraignment of title. There was
no objection from any of the parties.
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