Jordan v. Fountain
| Docket Number: | 2006-CA-01936-COA Linked Case(s): 2006-CA-01936-COA ; 2006-CT-01936-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-08-2008 Opinion Author: MYERS, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Real property - Adverse possession - Attorney’s fees Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 10-09-2006 Appealed from: Forrest County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: MOTION FOR SUMMARY JUDGMENT GRANTED IN FAVOR OF FOUNTAIN, EXCEPT AS TO BUILDING RESTING ON PROPERTY; JORDAN ORDERED TO REMOVE THEMSELVES FROM USE; NO ATTORNEY’S FEES OR MONETARY DAMAGES AWARDED. Case Number: 04-0561-GN-T |
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| Party Name: | Attorney Name: | |||
| Appellant: | NATHAN JORDAN AND SANDRA PETERS |
MATTHEW W. O’QUAIN |
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| Appellee: | ROSCOE E. FOUNTAIN, JR. | MICHAEL ADELMAN |
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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: | Roscoe Fountain (owner of Lot Five) filed a complaint against Nathan Jordan and Sandra Peters (owners of Lot Six) for encroachment on an area containing a building, shed, fence, wooden floor, and concrete parking space located in a commercial area in Forrest County. The chancellor found that Jordan had only met the requirements of adverse possession as to the portion of the land where the building rests in Lot Five; however, the other improvements, namely the shed, wooden fence, concrete parking space, and wooden floor, were declared the property of Fountain. Jordan appeals, and Fountain cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Adverse possession In order to successfully prove adverse possession, the claim 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. Once title is transferred to an owner by adverse possession, one is no longer required to preserve structured enclosures or fences separating property. According to testimony gleaned from the trial record, the predecessor in title, Willis, testified that he possessed all the land in question from 1970 to 1998. Willis further testified that he maintained the land up to the light post and clothesline on Lot Five, and that he believed that the border of his land extended to the light pole and he mowed the yard past the light pole and parked his truck past the same light pole. He also testified that he controlled access to the land and further cut a driveway on a portion of the land to gain access to the trailer located on the lot. Under the first element, there appears to be sufficient claim of ownership by the present owner Jordan and the previous owners, the Willises. Jordan, or his predecessors in title, also appears to meet the second element required under adverse possession. The Willises, the predecessors in title, mowed the yard, maintained a clothes line, prepared food outdoors, and took care of the grounds as any owner would. Jordan continued this by building additional improvements on the land in these areas. Both the Willises and Jordan used the land as would a normal landowner, maintaining the property and caring for it. They never tried to hide or conceal their use of the property. While Jordan has only had possession of the land since 1998, his possession may be tacked on to the possession of his predecessors in title, who possessed the land for the requisite period of time. Both the Willises and Jordan intended to possess as the sole and exclusive owners at all times. They possessed the land unchallenged by any other party, until the present litigation. The chancellor did not fully consider all the evidence establishing adverse possession dating back to 1970, but in his ruling instead focused on the fact that Jordan installed the wooden fence and concrete parking area in 2002. A period of adverse possession may be tacked to that of a predecessor in title if there is privity of contract. Therefore, the case is reversed and remanded. Issue 2: Attorney’s fees There was no abuse of discretion in the chancellor’s decision to deny Fountain’s request for attorney’s fees and costs. |
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