IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00651-COA MICHAEL POWELL APPELLANT

v. CLINTON F. MEYER AND JEANETTE ENGOLIA APPELLEES

DATE OF JUDGMENT: 01/22/2015 TRIAL JUDGE: HON. M. RONALD DOLEAC COURT FROM W HICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: G. GERALD CRUTHIRD ATTORNEY FOR APPELLEES: GAIL D. NICHOLSON NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: GRANTED APPELLEES’ PETITION TO QUIET TITLE IN .22 ACRES OF LAND DISPOSITION: AFFIRMED - 10/25/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. LEE, C.J., FOR THE COURT: ¶1. In t his appeal, we m u st determ ine whether the P earl R iv e r C o u n t y Chancery Court properly g ranted Clinton Mey er and Jeanette E ngolia’s (collectively Mey er) 1 petition to quiet title i n .22 acres of land. The chancellor f ound that Mey er had proved o wnership of the land by adverse possession. Finding substantial evidence to s upport the chancellor’s decision, we af f irm

. PROCEDURAL HISTORY

1 M ey er an d E n g o lia are h u sb an d an d w if e.¶2. The parties in this c ase are adjoining landowners. In 201 3 , M e y e r f iled a petition against Michael P owell to quiet and conf irm t i t l e in .22 a c res o f land. The .22 acres is located along the n orthwest property line o f M ey er’s property , a djacent to a s e ction of Powell’s property

. P owell subsequently f iled a counterclaim to q

uiet and conf

irm title to his property , which included th e . 2 2 acres in d ispute. Af ter a trial, the chancellor f ound that Mey e r p r o v e d o wnership of t he

. 22 acres by a d verse p ossession. The chancellor granted Mey e r’s petition to quiet title in the .22 acres and denied Powell’s counterclaim

. ¶3. Powell now a

ppeals, a sserting Mey e r f

ailed t o prove adverse p ossession by clear and convincing evidence. FACTS ¶4. In 1997, Powell acqui r e d a t w e n t y - f i v e - a c r e tract o f land in P earl River County , Mississippi. Powell u s e d the land f or m ining s and and gravel. In 2000, Mey er a cquired a 2.19-acre tr a c t of land located next to Powell’s property

. Mey er’s land is surrounded on
t h r e e s i des b y Powell’s property

. The f ourth side of Mey er’s property f r onts Henry Sm ith Road. The .22 acres of land at issue is located a l ong M ey er’s northwest property line in the
East Half of Section 4, Township 6 South, Range 18 W est. Mey er uses the property as a bedand-breakf

ast and a wedding venue. ¶5. Both parcels of property were originally owned by Henry S m ith. A ccording to Bob Sm ith , H e n r y ’ s grandson, the parcel o wned by Mey er was t he old hom e stead where his grandf ather lived, and it h ad a lway s been encircled by a f ence. Sm i th indicated t he f ence had been built prior to his grandf a t h e r ’ s d e a t h in 1944. Henry Sm ith had d ivided his property

2into nine parts, and one of these nine parts w as the hom estead that Mey er purchased. Sm ith

visited the property af

ter Mey e r purchased it and testif i ed that the old f

ence w as still intact. And the area around the f e nce line was surrounded by undergrowth. ¶6. The record includes f ive separate survey s of the property dated 1997 (two survey s), 2000, 2012, and 2013. The f irst 1997 survey , dated M ay 22, is of Powell’s property

. Neither buildings nor a f

ence is indicated on this survey , b ut the b earings f or the northwest boundary line are the sam e as the other 1 997 survey , dated Septem ber 8. This second 1 997 survey shows a “shed” located on t he hom estead near the northwest boundary line. The 2 000 survey

was attached to Mey er’s warranty deed and shows a barn located on the hom e stead in the

sam e sp o t a s t h e s h e d. The record is clear that the barn and shed were the sam e building. This building w as inside Mey er’s bound a r y line. The 2000 sale contract states that a condition of Mey er buy ing t he property was “conf irm ation of property line on o l d f ence line.” ¶7. The 2 012 su r v e y o f P o w e l l ’ s p r o p e r ty shows the f ence line along the northwest boundary but indicated that this f

ence line was not the boundary line. T he survey does not show the buildings on Mey er’s p roperty , but it does indicate a “ b uilding encroachm ent” f ive f eet on Powell’s property

. ¶8. The 2013 survey indicated that t h e n o r t h w e s t b o u n d a r y l i n e between the two properties was inside Mey er’s p roperty line, and it r an direc t l y t h r o u g h a building. This building was a p avilion built by Mey er and located where the shed/barn had stood. Mey er ref erred to the shed/barn as a log cabin, and it was on the property w hen M ey er purchased

3it in 2000. 2 Mey er testif i ed that he originally

used the log cabin to store building supplies. Mey e r e ventually m oved the log cabin to another area on his property and began building the pavilion where the log cabin had stood. The 2013 survey also indicated the “rem nants of old f ence” along the boundary line claim ed by Mey er. ¶9. Mey er contends that at the tim e he purchased the property i n 2000, an old barbed-wire f ence w as located along the portion of his property that abutte d Powell’s property

. Mey er stated this f

ence f ollowed his property line. M ey er rebuilt m uch of t he f

ence af t er it suf f ered dam age f rom Hur r i c a n e Katrina. Mey er testif ied t hat he built the new f ence over the old f ence line. ¶10. Mey er testif

ied that he bought sand and gravel f rom Powell when h e built the pavilion,

a n d Powell used his own equipm ent to transport the sand and gravel onto the dispute d
pro p e r t y . A nd at no point did Powell claim Mey er was building on Powell’s property

. Mey e r claim s Powell threatened to tear down the pavilio n a f t e r l e arning of the location of the property

line f rom the 2013 survey

. ¶11. Shortly af

ter purchasing his property , Mey er of f e r e d t o b u y Powell’s l and. Powell ref used. In 2011, Mey er of

f e red to buy a sm all section o f land outside the disputed boundary line in order to p rotect the view of his property

. Powell ref used. Mey e r erected a g ate on the disputed property approxim ately e leven y ears prior to the litigation. Mey er testif ied that he spoke with Powell and a nother nearby landowner, Roy c e S m ith, a bout the gate’s l ocation and

m aintenance out of courtesy

.

2 T h e p ro p e rty

listin g m e n tio n ed th at th e p ro p erty co n tain ed an “o ld lo g cab in .” 4¶12. Paula Powell, Michael’s wif e, testif ied that she routinely visited Powell’s property to help with his sand and gravel business. Paula claim ed there was no f ence on the disputed property , but adm itted she was unsure of the exact prop e r t y l ine due t o t he undergrowth. Paula stated that P owell b egan clearing this area in 2 012 in order to build another entrance
to h is p roperty

. Paula t es t i f i e d that a new f

ence appeared shortly af

ter Powell cleared the

area. ¶13. Powell testif

ied that Mey er did ask to p u r c h a s e his property in 2001. And Mey er asked f or perm ission to cut down a large o ak tree located on the property in dispute. Powell stated Mey er did ask to buy the property outside the dispu t e d b oundary line. Powell also claim ed M ey er told him i n 2006 that Me y e r mi g h t h a ve built a colum n of his f ence on Powell’s property

. ¶14. P o w e ll testif

i ed that he did not object when Mey e r began b uildi n g t h e p a v i l i o n because h e w a n t e d to be a good neighbor. A n d Powell said Mey er built a f ence on the disputed boundary l ine af ter Hurricane Katrina. Powell pulled the f ence up, but Mey er put it back. But Powell stated t h e r e w a s no activity on the disputed property until 2012, and there was no existing f

ence in the area. Powell adm itted that the 1997 survey did not show
any buildings on his property

. ¶15. On rebuttal, Mey er said the new f ence Powell s a w was b uilt o ver the old f ence that had b een dam aged b y H u r r i c a n e Katrina. A nd Powell pulled up this f ence when Powell began clearing t he u ndergrowth in 2012. Mey er testif i ed that he asked Powell’s perm ission
to cut t h e o a k t r ee down in case the tree f ell onto Powell’s property , b ut was clear that the

5oak tree was on his property

. W hen building t he pavilion, M ey er stated that he relied upon

the 2000 survey

to m a ke sure the pavilion would be on his property

.

STANDARD OF REVIEW ¶16. This Court em

ploy s a l im i ted s tandard of r eview when reviewing the decisions of a chancellor. Pulliam v. Bowen , 54 So. 3d 331, 334 (¶10) (Miss. C t

. A p p . 2 011) (citation

om itted). “The chancellor’s d eterm inations w ill only be reversed when t hey were m anif estly
wrong, clearly erroneous, or when the c hancellor a pplie[ d] an i ncorrect legal standard.” Id

. G e n e r ally , a f

inding that proof was suf f icient to sustain an adverse-possession claim is a f inding of f act and requires the application of the substantial-evidence/m anif est-error rule. Id . (citing W

alker v. Murphree , 722 So. 2d 1277, 1280 (¶15) (Miss. 1998)).

DISCUSSION ¶17. A l t h o u g h P o w e ll lists several issues on appeal, they all re l a t e t o w h e t h e r t h e chancellor abused his discretion in f inding Mey er proved adverse possession. ¶18. Mississippi Code Annotated s e c t i o n 1 5

- 1

- 1 3 ( 1 ) ( R e v . 2 0 1 2 ) d e f i n e s a d v erse possession as f

ollows:
Ten (10) y e ars’ actual adverse possession by any p erso n c laim ing to be the owner f or t hat tim e of a n y land, uninterruptedly continued f o r ten (10) y ears by occupancy , descent, convey ance, or o therwise, in whatever way such occupancy m ay h ave com m ence d o r continued, shall vest in every actual occupant or possessor of

such land a f

ull com plete title . . . .
W e a pply a six-part test f

or determ ining whether adverse po s s ession has o ccurred: “f or p o ssession to be a dverse it m ust be (1) under claim o f ownership; (2) actual or hostile; (3 )
open, n otorious, and visible; (4) c ontinuous and uninterrupted f or a period of ten y ears; (5)

6exclusive; and (6) peacef ul.” W alker , 722 So. 2d at 1281 ( ¶16). T he burden was o n Mey er to prove each elem ent by clear and convincing evidence. Ellison v. Meek , 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002). ¶19. O n a p p e a l , P o w e l l a r g u e s t h a t M ey er did not prove three of these elem ents , specif ically two, three, and f

our. In regard to the a ctual or hostile elem ent, “[ t]he actual or hostile occupation of land necessary to constitute a dverse p oss e s sion requires a corporeal occupation, accom

p anied by a m a nif est intention t o hold a nd continue to hold the property

a g a i n s t the claim of all other persons, and adverse to the rights of the true owner.” H i l l v
. Johnson , 2 7 S o . 3 d 426, 431 ( ¶23) (Miss. Ct. App. 2009). Possession is hostile when the adverse possessor intends to claim title n o t withstanding t hat t he claim is m ade under a

m istaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland , 214 Miss. 348, 3 5 7, 58 So. 2d 8 26, 829 (1952). P owell claim s he w as unaware t h e f ence existed; t hus, M e y e r c o uld not rely on i ts e xistence to establish h is claim of ownership. “[ T]he m ere existence of a f enc e , ” without m ore, “does not establish t hat the f ence is the accepted bounda r y b e t ween the properties.” Ellison , 820 So. 2d at 735 (¶16). However, there was additional evidence proving that, beginning in 2000, Mey e r w as the only person who utilized the disputed property —nam ely , because h e m istakenly believed he o wned the property

. Af

ter buy i ng t he property , Mey er bega n t o u s e the log cabin to store equipm ent bef ore m oving it and building a pavilion where the l og c a bin o nce s tood. Powell conceded that h e knew Mey er was “alway s building” on this piece o f property , even selling sand and

m aterials to assist Mey er in constructing the pavilion and a gazebo on the property

.

7¶20. In regard to the open, notorious, and visible elem ent, “ [ t ]he m e r e possession of land

is not suf f i cient t o satisf

y the requirem ent that the adverse possessor’s use be open, notorious, and visible.” W

ebb v. Drewrey , 4 So. 3d 1 078, 1 083 (¶19) (Miss. Ct. App. 2009) (citation

om itted). An a dverse-po ssession claim will n ot begin “unless the landowner has actual or constructive knowledge that ther e i s a n a d v erse claim against his property .” Id

. As previously stated, Powell conceded that he knew Mey e r was b uilding on this property

. And he sold and delivered sand t o Mey er f or use in building t he pavilion and gazebo. Mey er testif i ed that Powell only learned t h e p r o p erty in q uestion was his af

ter the 2012 survey . Although Powell claim s Mey er asked to buy the land, Mey er’s t estim ony i ndicated he was try ing to buy the land outside the f ence l ine. T here is no indication that Mey er a ttem pted to conceal his use of

the property

. ¶21. Powell also claim s M ey er’s use of the land w as not continuous and uninterrupted f or
ten y ears as required by section 1 5-1-13(1). T o reiterate, even if a party is m istaken as to the calls o f h is d eed, “ if he has occupied the land f or the s tatutory period under the c laim that it was his own and was em

braced within the calls of his deed, he is entitled to recover on the ground of adverse possession[ .]” Alexander , 214 M iss. at 357, 58 So. 2d at 829. Mey er’s possession of the land began in 2000. And Mey er’s use of the property was continuous and uninterrupted until 2012 when the survey i ndicated the p roperty in question belonged to Powell. ¶22. W e f

ind substantial e vide n c e i n t h e r e c o rd to support the c hancellor’s f inding that

8Mey e r proved adverse possession by clear a nd c o nvincing evidence. Theref ore, we af f irm

. 3 ¶23. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRM E D . A LL COSTS OF THIS A PPEAL A RE ASSESSED TO THE APPELLANT. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

3 P o w ell b rief

ly arg u es th at th e ch an cello r erred b y d en y in g h is c o u n terc l a i m. B e cau se w e af

f irm t h e ch a n cello r’s d ecisio n reg ard in g M ey er’s ad v e rse-p o ssessio n claim , w e also af

f irm th e ch an cello r’s d en ial o f P o w e l l’s co u n t erclaim

. 9