M.L. Pulliam v. Alpha Bowen
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01284-COA
M.L. PULLIAM, LONNIE PULLIAM, THOMAS
GENE PULLIAM, M. EARL PULLIAM, SAMMY
K. PULLIAM AND LINDA PULLIAM WILSON
APPELLANTS
v.
ALPHA BOWEN, GENORA BOWEN WILLIAMS
AND RITA MAY BOWEN NEAL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
07/02/2009
HON. H.J. DAVIDSON JR.
CHICKASAW COUNTY CHANCERY
COURT
REX F. SANDERSON
JOHN P. FOX
CIVIL - REAL PROPERTY
QUIETED AND CONFIRMED TITLE TO
REAL PROPERTY AND DISMISSED
TRESPASS AND EJECTMENT CLAIMS
AFFIRMED - 02/15/2011
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
M.L. Pulliam, Lonnie Pulliam, Thomas Gene Pulliam, M. Earl Pulliam, Sammy K.
Pulliam, and Linda Pulliam Wilson (Collectively, the Pulliams) appeal the decision of the
Chickasaw County Chancery Court finding that the Pulliams failed to sustain their claim that
they adversely possessed certain property in Chickasaw County Mississippi. They further
appeal the chancellor’s decision that Alpha Bowen, Genora Bowen Williams, and Rita May
Bowen Neal (Collectively, the Bowens) had adversely possessed the disputed property
spanning from County Road 406 to the Bowens’ southern boundary line. Finally, the
Pulliams appeal the chancery court’s dismissal of their claim for trespass and ejectment.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
The Bowens and Pulliams own adjacent property in Chickasaw County. The
Pulliams’ property lies to the west of the Bowens’ property. The property in dispute is
located in the West Half of Section 2, Township 14 South, Range 4 East. The Bowens
received their property from a deed passed down from Cora Belle Bowen, their mother, to
them with the original source being a forfeited land tax patent from the State of Mississippi
to their great-uncle. Their property, as described in the deed, is the “East [half] of the
Northwest [quarter], and the East [half] of the Northeast [quarter] of the Southwest [quarter],
both in Section 2, Township 14, Range 4 East, being approximately 109 acres.” According
to their deed, the Bowens’ property did not extend all the way to County Road 406.
¶3.
The Pulliams property is described in a deed from Toily Pulliam, their mother. The
property is described as “beginning in the northwest corner of Section 2 . . . and run thence
east 25.60 chains, thence south 66.40 chains to the center of the . . . Public Road, thence
running westerly along the center of said public road 25.60 chains, more or less, to the west
line of said Section 2, thence north along the section line 71.90 chains to the point of
beginning. . . .” 1 The property described in the deed is approximately 174 acres.
1
One chain equals sixty-six (66) feet.
2
¶4.
In June 2006, Alpha and Genora filed a complaint to quiet and confirm title against
M.L. and all others having any interest in the property. In 2007, the Pulliams filed a
complaint against the Bowens seeking ejectment for trespass and to quiet and confirm title
to the disputed property. In June 2008, these two cases were consolidated naming the
Pulliams as plaintiffs and the Bowens as defendants.
¶5.
At the hearing, the Pulliams asserted that they were the owners of certain property
described in their deed, and even though their deed and the Bowens’ deed overlapped, they
were entitled to the property by adverse possession. The Pulliams relied on the testimony
of M.L. to establish their claim for adverse possession. M.L. testified that an old fence line
on the eastern side of the Fitzpatrick property was the actual boundary line of his property
and the Bowens’ property.2 The Pulliams claim everything west of the old fence line. The
fence referenced by M.L. was neither shown on the Bowens’ land survey that was introduced
into evidence, nor seen by the chancellor upon an on-site viewing of the property. M.L.
testified further that the Pulliams paid taxes on this property.
¶6.
The Bowens did acknowledge that a fence existed to separate the properties; however,
Alpha testified that the fence was located on the western side of the Fitzpatrick property. He
did not dispute that the Pulliams own the land west of that fence line, only that they do not
own any of the land east of the line. The fence line Alpha references is found on the survey
that the Bowens submitted into evidence. Alpha also testifies that the Bowens paid taxes on
the property.
2
The Fitzpatrick property is located on County Road 406 in the southwest corner of
the Bowens’ property.
3
¶7.
After hearing testimony from M.L., Alpha, and the surveyor, the chancellor
determined that neither party had fully satisfied the elements of adverse possession to the
disputed property. He found that neither party could demonstrate that he exercised control
over the land nor that there was any actual or hostile possession of the land to satisfy that
element of adverse possession. The chancellor found that there was a mutual mistake in the
deed descriptions and not in the actual location of the boundary lines. He found that a deed
description that arises from a mutual mistake of the parties may be corrected. McCoy v.
McCoy, 611 So. 2d 957, 961 (Miss. 1992). As such, he determined that the Pulliams’ and
Bowens’ deed descriptions overlap causing a mutual mistake and allowing for reformation
of the deed.
¶8.
When making his award of property, the chancellor relied on the Pulliams’ deed that
was older and more specific in using metes and bounds to describe the property. He
determined that it was the intent of the parties’ predecessors to convey property contiguous
with each other and that application of the Pulliams’ deed would satisfy that intent. Once he
established the Pulliams’ property according to their deed description, he began at the
northeast corner of the Pulliams’ property and established the Bowens’ property. He also
awarded the Bowens, through adverse possession, the property north of County Road 406
up to the Bowens’ current southern boundary line. He awarded the Bowens approximately
one hundred acres of property, which was what the predecessors had originally attempted to
convey in the deed. According to the chancellor’s award, the Bowens and Pulliams now
have parallel pieces of property which are no longer shaped as a panhandle like the survey
of the Bowens’ property had originally indicated.
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¶9.
The Pulliams now appeal raising three issues:
I. They proved their adverse possession of certain parts of the land awarded
to the Bowens;
II. The award of judgment of adverse possession in favor of the Bowens was
error;
III. They proved that the Bowens had committed trespass by cutting timber on
their property.
DISCUSSION
¶10.
When reviewing decisions of a chancellor, the standard of review is limited. Nichols
v. Funderburk, 883 So. 2d 554, 556 (¶7) (Miss. 2004). The chancellor’s determinations will
only be reversed when they were manifestly wrong, clearly erroneous, or when the chancellor
applies an incorrect legal standard. Id. Generally, a finding that proof of adverse possession
was insufficient is fact-finding and requires the application of the substantial
evidence/manifest error rule. Walker v. Murphree, 722 So. 2d 1277, 1280 (¶15) (Miss. 1998).
I. Adverse Possession
¶11.
The Pulliams argue that the chancery court erred in awarding the Bowens certain
property by adverse possession while denying them an award of property by adverse
possession.
¶12.
Mississippi Code Annotated section 15-1-13(1) (Rev. 2003) defines adverse
possession as follows:
Ten (10) years’ actual adverse possession by any person claiming to be the
owner for that time of any land, uninterruptedly continued for ten (10) years
by occupancy, descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in every actual
occupant or possessor of such land a full complete title . . . .
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¶13.
There are six required elements in determining whether property has been adversely
possessed. The party claiming adverse possession must establish each element by clear-andconvincing evidence. The claimant must show that his possession was (1) under a claim of
right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice v. Pritchard,
611 So. 2d 869, 871 (Miss. 1992).
¶14.
The Pulliams argue that the chancellor erred in failing to award them certain property
through adverse possession. The Pulliams and the Bowens had deeds with overlapping
descriptions. As a result, the Pulliams argued that they were entitled to the property that was
described under the overlapping deed descriptions because they had adversely possessed the
property. The Bowens asserted the same. The chancellor found that neither party was
entitled to the property through adverse possession because neither could show that they
exercised control to the exclusion of others. The chancellor also found that neither the
Bowens nor the Pulliams proved any actual or hostile possession. The Mississippi Supreme
Court has repeatedly stated that to show actual or hostile possession, the adverse possessor
“must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see.”
Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992). In this case, neither party
constructed fences, raised cattle or crops, or even attempted to improve or develop the
property.
¶15.
The chancellor determined that, in regard to the disputed property, neither party had
an adverse-possession claim that would trump the other’s adverse-possession claim.
¶16.
The chancellor found that since there was a mutual mistake in the deed descriptions,
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he could reform the deed according to the description found in the Pulliams’ deed. “The law
permits reformation of instruments to reflect the true intention of the parties when (a) the
erroneous part of the contract is shown to have occurred by a mutual mistake. . . .” Brown
v. Chapman, 809 So. 2d 772, 774 (¶ 9) (Miss. Ct. App. 2002). The chancellor relied on the
Pulliams’ deed because the description used metes and bounds, which is more specific than
the Bowens’ deed.
¶17.
We find that the chancellor did not err in awarding neither party the property by
adverse possession or in his reformation of the deeds; thus, issue is without merit.
¶18.
Although the chancellor did not award the disputed property to either party, he did
award the Bowens certain other property by adverse possession. The awarded property
extends from north of the county road to the southern boundary line of the property described
in their deed. The chancellor found that the Bowens met all the required elements of adverse
possession as to this piece of property. They built their home on the property and actually
occupied it for over ten years. The Bowens had even conveyed two other parcels located on
that property. These actions were sufficient to give notice to the world that they were
claiming the land as their own.
¶19.
We find that as to this property the chancellor did not err in his award of this property
by adverse possession to the Bowens; accordingly, this issue is without merit.
II. Trespass
¶20.
The Pulliams also argue that they proved that the Bowens had committed trespass by
cutting timber on the Pulliams’ property. Mississippi Code Annotated section 95-5-10 (Rev.
2004) provides: “[T]he owner shall only be required to show that such timber belonged to
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such owner, and that such timber was cut down, deadened, destroyed or taken away by the
defendant, his agents or employees, without the consent of such owner.” The chancellor
dismissed the trespass and ejectment claim because the Pulliams failed to prove that the
Bowens had cut timber off their property. Based on the evidence found in the record, it was
undisputed that the Bowens had cut timber, but the Pulliams failed to prove the location of
where the timber was cut and that the timber had belonged to them as required by statute.
¶21.
Finding this issue without merit, we affirm the chancellor’s dismissal of the Pulliams’
claim for trespass and ejectment.
¶22. THE JUDGMENT OF THE CHANCERY COURT OF CHICKASAW
COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
CARLTON AND MAXWELL, JJ., CONCUR.
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