Abercrombie v. Carter, et al.
| Docket Number: | 2010-CA-00874-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-25-2011 Opinion Author: Lee, C.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Real property - Exclusion of survey - M.R.E. 802 - Hearsay Judge(s) Concurring: Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 04-27-2010 Appealed from: Covington County Chancery Court Judge: J. Larry Buffington Disposition: ESTABLISHED PROPERTY LINE BETWEEN NEIGHBORING OWNERS’ PROPERTIES Case Number: 03-141 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Katherine Graham Abercrombie and I.H. Abercrombie |
MARY K. BURNHAM |
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| Appellee: | Grayling Carter and wife Tammy Graves Carter, Stanley Parker and Doris Parker and Hugo William (Bill) Walton, Mary Mittlelee Walton McCall, Linda Ann Walton Smith and Sandee Joyce Walton Hendricks, the heirs at law of Vondee Walton, Deceased and Lawrence Trigg and Ester P. Trigg | WILLIAM H. JONES | ||
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 - Exclusion of survey - M.R.E. 802 - Hearsay |
| Summary of the Facts: | I.H. “Hardy” and Katherine Abercrombie filed a complaint to quiet and confirm the title and remove cloud on the title of their property against Grayling Carter and Tammy Carter. The Abercrombies also named Lawrence Trigg and Ester Trigg in the complaint, alleging that the Triggs also had a fence that was encroaching on the Abercrombies’ property. In addition, the Abercrombies asserted that the Triggs had thrown and pushed trash and debris onto their property. The Abercrombies asked the chancellor to order the Triggs to remove the debris. The following defendants were named in the complaint because they were neighboring property owners: Stanley and Doris Parker and the heirs at law of Vondee Walton – Hugo William Walton, Mary Mittlelee Walton McCall, Linda Ann Walton Smith, and Sandee Joyce Walton Hendricks. The Triggs filed a cross-complaint asking the chancellor to quiet title. The Triggs alleged that they were the true owners of the property inside their fence line, and they further asserted that they had acquired the property by adverse possession. The Walton heirs also filed a cross/counter-complaint, alleging to be the owners in fee simple of the property. The chancellor first determined the cross-complaint for adverse possession was without merit. The chancellor accepted the survey of Jerry Miller, who found that a large post and a half-inch rebar marked the northeast corner of the northeast 1/4 of the property. The chancellor also accepted the survey of Forestry Services, Inc., which found that the existing fence properly marked the property line starting at the southwest corner of the property and running east between the properties. The Abercrombies appeal. |
| Summary of Opinion Analysis: | The Abercrombies argue that the chancellor erred in using the Miller survey in reaching his decision. Two surveys were introduced during the hearing – the Forestry Services survey and the Saul Engineering survey. The surveys differed as to the boundary line between the properties by approximately thirty feet. The parties stipulated to the Forestry Services survey. Saul was the only surveyor who testified at hearing. During his testimony, Saul expressed concerns about the Miller survey. The appellees’ attorney moved to have the Miller survey entered into evidence, but the chancellor excluded the survey since Miller was not present to testify. Saul was asked if a third survey should be conducted since the surveys presented at the hearing were conflicting. Saul responded, “I urge you to get one.” In making his judgment, the chancellor considered the Miller survey. The chancellor erred in considering a survey that was not allowed into evidence. The survey was properly excluded at the hearing under M.R.E. 802 as hearsay. The parties were not allowed to examine the Miller survey at the hearing, nor were they allowed to question Miller, the surveyor. Thus, the case is reversed and remanded for a new trial. |
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