Norris v. Cox, et al.


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Docket Number: 2001-CA-00087-COA
Linked Case(s): 2001-CA-00087-COA

Court of Appeals: Opinion Link
Opinion Date: 11-04-2003
Opinion Author: Myers, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Adverse possession - Acts of emancipated child - Agency relationship - Disclaimer of ownership - Necessity of survey - Open and notorious
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving and Griffis, JJ.
Non Participating Judge(s): Chandler, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 12-07-2000
Appealed from: Lee County Chancery Court
Judge: Jaqueline Mask
Disposition: JUDGMENT FOR APPELLEES, FINDING ADVERSE POSSESSION
Case Number: 98-0458

Note: The motion for rehearing filed by the appellant is denied.

  Party Name: Attorney Name:  
Appellant: Samuel T. Norris




MICHAEL DAVID TAPSCOT



 

Appellee: Marvin B. Cox, Mary A. Cox, Jeffrey Jackson, David Cox, Kathy Mashburn, Larry Woodard, Lisha Woodard, X, Y and Z Defendants, Harold Jackson and Elizabeth Cox VICKI WESSON  

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Topic: Real property - Adverse possession - Acts of emancipated child - Agency relationship - Disclaimer of ownership - Necessity of survey - Open and notorious

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. After Samuel Norris bought two parcels of land, he noticed a mobile home sitting in the southeast corner of one parcel as well as a wood-frame shop, a mobile home, and a camper on the south central portion of the parcel. David and Elizabeth Cox occupy the mobile home. The court originally concluded Marvin and Mary Cox had adversely possessed two portions of Samuel Norris’s property and awarded the Coxes fee simple title to these portions, but later entered a supplemental judgment reducing the land awarded to the Coxes. Both sides appeal.

Summary of Opinion Analysis: Issue 1: Adverse possession The chancellor found that the Cox children were not acting as Marvin Cox’s agents. The question is whether acts of an emancipated child or relative may count for exclusive, continuous and uninterrupted possession. Possession under a claim of adverse possession 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. A person may adversely possess through the acts of his agent. An agent acts on the principal’s behalf and is subject to the principal’s control. By definition, an emancipated child is no longer under its parent’s control. In addition, the Cox children were not acting for their mother and father by simply living on the disputed property. Therefore, the court ruled correctly with regard to the agency issue. The evidence shows that the only part of the disputed property which Marvin Cox had secured for his own use was the shop building, and all elements for adverse possession of the property on which the shop sits have been met. Issue 2: Ownership Norris argues that the Coxes could not adversely possess the property because, on at least two occasions, they disclaimed ownership to the disputed property. This testimony that Cox may not have affirmatively claimed all the property at all times constituted evidence to be considered in determining the validity of the adverse possession claim along with all other testimony offered by the parties. Issue 3: Survey Norris argues that the Coxes have not met their burden of proof since they did not have a survey to describe the land which they claimed. A survey is not needed to delineate a claim of adverse possession where established monuments and boundaries can be used to describe the parcel. The Coxes introduced evidence of an old fence line, and the chancellor walked the disputed property and saw it for herself. Impliedly, she found the only definite area the Coxes could claim was that on which the shop sat. Therefore, it was well within her discretion to find the Coxes had acquired title to the land on which the shop sat. Issue 4: Open and notorious Whether the character of possession was “open, notorious, and visible” is one of fact. The chancellor is in the best position to weigh the credibility of witnesses. Here, contradictory evidence was presented, and it was up to the chancellor to decide who to believe.


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