Niebanck v. Block
| Docket Number: | 2009-CA-00530-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-01-2010 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Adverse possession Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 11-07-2008 Appealed from: DeSoto County Chancery Court Judge: Vicki Cobb Disposition: CLAIM FOR ADVERSE POSSESSION OF PROPERTY DENIED Case Number: 06-04-0703(VC) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Bruce Niebanck and Claudia Niebanck |
JAMES W. AMOS |
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| Appellee: | Robert D. Block, Myfis C. Wims and Angela D. Wims | LAWRENCE LEE LITTLE, TARA BETH SCRUGGS | ||
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 |
| Summary of the Facts: | At one time, William H. Austin, Jr., owned a large contiguous section of property. The litigants in this case all obtained property that originated from Austin’s ownership. In 1991, the Niebancks acquired 25 acres of property that had once belonged to Austin and his family. In July 2005, the Wimses acquired approximately 22.4 acres that had originated from Austin’s ownership. At the same time, Dale acquired 10.01 acres of property that had originated from Austin’s ownership. This dispute focuses on the property line that the Niebancks share with both Dale and the Wimses. After the Niebancks filed suit, the chancellor dismissed the Niebancks’ complaint. The Niebancks appeal. |
| Summary of Opinion Analysis: | The Niebancks argue that the chancellor erred when she found that they had failed to demonstrate a prima facie case of adverse possession. One asserting a claim of adverse possession must prove that the possession is under claim of right; actual; open, notorious and visible; exclusive; continuous and uninterrupted for ten years; and peaceful. The Niebancks argued that the presence of an old barbed wire fence north of their actual boundary line caused them to believe that they owned the disputed property. However, the Niebancks did not build the fence. At the time of trial, the fence was nearly pulled down due to vines and other plants growing on the fence. The mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the properties. Furthermore, the manner in which the fence line is situated clearly conflicts with the description within the Niebancks’ deed. The chancellor did not abuse her discretion when she found that the Niebancks had failed to demonstrate by clear and convincing evidence their open, notorious, and visible possession of the disputed property. Also, the chancellor did not err when she held that the Niebancks failed to submit clear and convincing evidence that they did not have permission to use the property from the predecessor in title to both Dale’s and the Wimses’ properties. Thus, there is substantial evidence to support the chancellor’s decision. |
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