Blackburn v. Wong


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Docket Number: 2003-CA-01955-SCT

Supreme Court: Opinion Link
Opinion Date: 11-10-2004
Opinion Author: Dickinson, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Adverse possession - Claim of ownership
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley and Randolph, JJ.
Judge(s) Concurring Separately: Carlson, J., - Joined by Waller and Cobb, P.JJ.
Non Participating Judge(s): Diaz and Graves, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 08-27-2003
Appealed from: Bolivar County Chancery Court
Judge: William Willard
Disposition: Ordered the removal of all improvements and structures on the encroachment and the payment of attorney's fees and costs to Wong.
Case Number: 99-0057

  Party Name: Attorney Name:  
Appellant: Doris M. Blackburn and Stephen W. Blackburn




ANCIL LIDDELL COX, JR. JOHN CHRISTOPHER COX



 

Appellee: Ngan Chu Wong STEVEN TODD JEFFREYS J. KIRKHAM POVALL  

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Topic: Real property - Adverse possession - Claim of ownership

Summary of the Facts: Ngan Chu Wong filed a complaint against Doris Blackburn, Esq. seeking to remove a seventeen foot encroachment on her property and reimbursement for all expenses with regard to the complaint, including attorney’s fees, engineering fees and other expenses. Stephen Blackburn, Esq. petitioned and was permitted to intervene. The Blackburns filed an answer in which they prayed that Wong’s complaint would be dismissed and the court quiet and confirm title to them. The chancellor entered a judgment in favor of Wong and ordered the removal of all improvements and structures on the seventeen foot encroachment and the payment of attorney's fees and costs to Wong. The Blackburns appeal.

Summary of Opinion Analysis: 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. One cannot set out to adversely possess the property of another, but the claim of ownership must exist at the beginning of the ten-year statutory period. In 1971, Blackburn admits that he thought his building had been built on Wong’s property. He then set out in a deliberate attempt to adversely possess the 17-foot strip of lot 5, belonging to Wong. Blackburn knew he did not own the seventeen-foot strip of lot 5. That being the case, he had no claim of ownership at the beginning of the statutory period and, thus, could not gain title to the property through adverse possession.


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