Apperson v. White
| Docket Number: | 2005-CA-01516-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-06-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Adverse possession Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 06-27-2005 Appealed from: Kemper County Chancery Court Judge: Edward C. Prisock Disposition: JUDGMENT FINDING DEFENDANTS TO HAVE ACQUIRED TITLE TO REAL PROPERTY BY ADVERSE POSSESSION. Case Number: 2002-0109 |
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| Party Name: | Attorney Name: | |||
| Appellant: | CATHY P. APPERSON AND MICHAEL D. PIERCE |
STEVEN D. SETTLEMIRES |
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| Appellee: | JOHN L. WHITE AND SUZANNE B. WHITE | MARVIN E. WIGGINS, JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Adverse possession |
| Summary of the Facts: | Cathy Apperson and Michael Pierce appeal the chancery court’s judgment which awarded John and Suzanne White title to a disputed 8.2 acre tract of land by virtue of adverse possession. |
| Summary of Opinion Analysis: | Apperson and Pierce argue that the Whites failed to meet their burden of proof on the elements of adverse possession and that the chancellor erred in awarding the Whites title to the disputed property. For possession to be adverse it must be under claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted for a period of ten years; exclusive; and peaceful. They point to evidence that Apperson paid the property taxes on the disputed parcel, Apperson’s son occasionally hunted on the disputed parcel, and that Apperson’s and Pierce’s father had periodically raised cattle and thinned timber on the disputed parcel. The payment of property taxes is but one factor for the chancellor to consider, and is not conclusive of ownership. In addition, sporadic or occasional pasturing of cows and cutting of timber is insufficient to support a claim of adverse possession. While the testimony presented on behalf of Apperson and Pierce may show an occasional use of the property by Apperson and Pierce, or their predecessors in interest, it does not address the Whites’ use of the property. There was ample testimony presented that the Whites’ predecessor in interest had constructed a barbed-wire fence over sixty years ago, and that the fence had been maintained as the property line ever since. The evidence that the Whites constructed the barbed-wire fence encompassing the disputed property some sixty years ago is compelling evidence of adverse possession. Additional evidence of possessory acts over the disputed parcel brought forth on behalf of the Whites included the testimony of elder members of the White family, now in their seventies, that as youths they had terraced the parcel for the planting of corn. The Whites also presented various timber deeds proving that they had continuously harvested timber on the disputed parcel for over forty years. There was no testimony presented on behalf of Apperson and Pierce that the Whites were ever given permission to use the disputed parcel. Neither the Whites, nor their predecessors in interest, tried to hide their use of the disputed parcel. No evidence is presented establishing a non-peaceful existence between Apperson and Pierce and the Whites or their predecessors in interest. Thus, the chancellor’s findings of fact are supported by the record and his conclusions of law are sound. Apperson and Pierce also argue that the chancellor failed to consider the testimony and evidence presented on their behalf when he found the Whites to have acquired the disputed property by adverse possession. However, the record does not support this contention. |
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