Scrivener v. Johnson
| Docket Number: | 2002-CA-01959-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2003 Opinion Author: LEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Adverse possession - Attorney’s fees Judge(s) Concurring: McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. Procedural History: Jury Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-02-2002 Appealed from: OKTIBBEHA COUNTY CHANCERY COURT Judge: James S. Gore Disposition: PLAINTIFF'S REQUEST FOR RELIEF DENIED AND COMPLAINT DISMISSED. DEFENDANT'S REQUEST FOR ATTORNEY'S FEES DENIED. PLAINTIFF TO PAY COSTS. Case Number: 00-0330 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES (JIM) WALTER SCRIVENER |
TAYLOR TUCKER |
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| Appellee: | LULA FAY K. JOHNSON AND JIMMY CARL JOHNSON | RONALD STEPHEN WRIGHT |
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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 - Attorney’s fees |
| Summary of the Facts: | James Scrivener filed a complaint to quiet and confirm title in approximately .5 acres of land, which he contended he had acquired by adverse possession. He sought damages against Fay Johnson, L.P. and Jimmy Carl Johnson for timber trespass and destruction of a fence. The judge found that the proof was insufficient to establish adverse possession of the parcel in question and denied Scrivener's request for damages. Scrivener appeals. |
| Summary of Opinion Analysis: | Issue 1: Adverse possession Scrivener argues that the property has been used by him since 1980 and his predecessors in title since at least 1935 and therefore he has acquired title to the land by adverse possession. 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. Andy Johnson, one of the general partners of Fay Johnson, L.P., testified that he was present when a survey was done and the survey line was marked by hatchet marks. He testified that an old barbed wire fence has never been the property line and that when Scrivener built a new fence to replace the old barbed wire fence, Johnson took it down because it was on his property. Based on the record, Scrivener has failed to meet any element of adverse possession by clear and convincing evidence. Issue 2: Attorney’s fees Scrivener cites section 95-5-10 as authority for his argument that any person who takes a tree without the consent of the owner is liable in an amount double the fair market value of the tree. Since Scrivener was not the owner of the property in question by adverse possession, this issue is moot. |
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