Cleveland, et al. v. Killen, et al.
| Docket Number: | 2006-CA-01021-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Real property - Adverse possession Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - REAL PROPERTY |
|
| Trial Court: |
Date of Trial Judgment: 05-20-2006 Appealed from: NESHOBA COUNTY CHANCERY COURT Judge: John Love, Jr. Disposition: CHANCELLOR FOUND THAT THE USE OF THE PROPERTY WAS PERMISSIVE, NOT ADVERSE Case Number: 2005-288 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | TOMMIE CLEVELAND AND JERRY GILLIS
KILLEN |
ROBERT M. LOGAN |
||
| Appellee: | OSCAR KENNETH KILLEN, ESTELLE D. KILLEN AND JEFFREY KENNETH KILLEN | P. SHAWN HARRIS |
|
|
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. |
|
| Topic: | Real property - Adverse possession |
| Summary of the Facts: | The chancery court found that the use of Kenneth Killen’s property by his brother, Jerry Killen, was permissive and not adverse. The court, therefore, denied the adverse possession claim of Jerry and his ex-wife, Tommie Cleveland. Jerry and Tommie appeal. |
| Summary of Opinion Analysis: | Tommie argues that the chancellor erred by finding that her and Jerry’s use of the land was permissive. She argues that although Kenneth originally agreed to let Jerry build a fence to corral cattle, Jerry has raised other animals on the land, planted crops there, built a pond, and maintained it as his own. As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him. It is a fact question for a chancellor to determine whether a use is prescriptive or permissive. According to all parties, the two brothers and their families lived side by side for approximately thirty-five years with no disputes between them concerning the 2.6 acres. They freely gave each other permission to use each other’s property. Based on the record, the chancellor did not abuse his discretion in finding that permission to use the 2.6 acres was given by Kenneth, thereby rendering Jerry and Tommie’s use of the land permissive. Tommie also argues that the use of the land became adverse when Jerry built the pond on it. Use of property by permission does not evolve into a hostile or adverse use until the permission ends. Not only was there no revocation of the permission by Kenneth, but also there was not any positive assertion of a hostile right against him until the events preceding trial. The chancellor’s finding that Kenneth initially gave permission for Jerry to use the property and that nothing in the record revealed that the permission was terminated or withdrawn is not error. Tommie argues that her and Jerry’s use of the property throughout the thirty-five years was inconsistent with the reason for which Kenneth allowed them to use the property. The chancellor, however, found that when Kenneth gave Jerry permission to fence in part of his land, he also gave Jerry permission to use that part of his land. This is not in error as it seems quite reasonable that a person would use land that he encloses in a fence. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
