IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01445-COA CHARLES O’NEAL APPELLANT

v. TRACY SYKES BLALOCK AND ROBERT ALLEN SYKES APPELLEES

DATE OF JUDGMENT: 08/21/2015 TRIAL JUDGE: HON. EDW ARD E. PATTEN JR. COURT FROM W HICH APPEALED: COPIAH COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: CLARENCE MCDONALD LELAND ATTORNEYS FOR APPELLEES: RENEE H. BERRY JOHN T. ARMSTRONG JR. NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S CLAIM FOR ADVERSE POSSESSION DISPOSITION: AFFIRMED - 05/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT: ¶1. In Decem

b er 2013, Tracy Sy

kes Blalock and Robert Allen Sy kes brought suit against Charles O’Neal in the Copiah County Chancery

Court to quiet and conf

irm title in land on which O’Neal was e ncroaching. O’Neal responded by claim ing ownership of the disputed l a n d t h r ough adverse possession. F ollowing trial, the chancery court e ntered a f inal j udgm ent holding that O’Ne a l h a d f ailed to prove his claim of adverse possession b y c lear and convincing evidence. O’Neal tim ely appealed. Finding no error, we af f i rm . STATEMENT OF FACTS AND PROCEDURAL HISTORY¶2. On Septem be r 1 9 , 1 9 9 0 , O ’ N e a l purchased approxim a tely 255.8 acres of land in Copiah County

. Prior to the com pletion of O’Neal’s purchase, he had the land survey ed by Harold K ing, a registered land survey or. O’Neal th e n h a d a d eed prepared based upon King’s survey , w hich h e properly recorded, a nd to which the King s u rvey was attached. Though this case was initiated on Decem ber 23, 2013 by Blalock and Sy kes as a com

plaint

to quiet a n d conf

irm title, the parties elected to proceed with O ’ N e a l ’ s c laim f or adverse possession, as it would likely be dispositive to the outcom e o f the case. ¶3. At trial, O’Neal testif ied that while King perf

o rm e d the survey , he aided b y bulldozing

a road along the sout h e r n b o undary of the property

. O’Neal f u rther testif

ied t hat, out of respect f or the adjacent landowners, t he road w as constructed to f avor t he north side of the southern boundary line survey ed by K i ng. I n addition to the dozing of the r oad, O’Neal stated t hat at the tim e of the s urvey , King also blazed a red, painted line, w h i c h was

m aintained f

or “y ears and y ears.” He testif ied that he personally observed King place each
survey pin 1 in every c orner of h is property , including p oint 7, which abuts the w e s tern rightof -way of Highway 27, and is a prim ary area of dispute am ong the parties. O’Neal asserted that h e r elied entirely on King’s placem ent of the pins f or the boundaries o f his property , and believed those pins to be within the calls of his deed. ¶4. Following t h e dozing o f the road, O’Neal stated t hat he conducted a v ariety of acts
upon his land, including planting f ood plots, building a deer stand, hunting, f ishing, ATV operati o n , and inviting o thers to participate in the sam e. O’Neal had several dif f erent

1 M o n u m en ts d em arcatin g p ro p erty b o u n d aries. 2witnesses of f er t e s t i mo ny to this ef

f ect on his b ehalf

. O’Neal also adm itted that while the southern boundary of h is p roperty was to f ollow a due east-west l ine, unstable terrain and a lake caused his road to deviate f rom its initially straight course; O ’Neal reiterated, however, that he f avored the “ inside” of his boundary line at a ll t im es. No f e nce was ever b uilt along the southern border survey ed by King. ¶5. In 2006, O’Neal f

ounded Copiah C reek Cam ping and Recreation LLC. The business consisted of charging a d mi s sion f or those seeking to r ide ATVs along the road created by O’Neal, including the di s puted area, a s well as other portions of his acreage. The
“trem e ndous” volum e of ATV traf f ic resulted in the f

o rm ing of a “m

ud pit” w here the road

was once f

lat. The “ m

ud p i t” is a long ditch located below ground l evel, and the p rim ary area of d ispute am o ng the p a rties, as it sits north of O’Neal’s road, but south of the boundary line claim ed by Blalock. The “m ud pit” also rests east of the “ borrow p it,” which is the area where O’Neal’s road begins its d eviation to the south when f ollowing the road in a west-toeast path. ¶6. Blalock i nherited the property directly south o f O’Neal’s on October 23, 2003. Dale Blalock, T racy ’s husband, testif ied that in 2 011, he and O’Neal traversed the property border,

west t o east, and that O’Neal adm i tted he was e ncroaching upon the Blalocks’ land at several points. An d i n M a y 2 0 1 3, p rior to a tim ber sale, the Blalocks had Hunter Newm an, a registered survey or, perf orm a s u r v e y of their property

. Newm an’s survey showed the Blalo cks claim ed a total of 129.97 acres. Newm an reviewed the King survey , and determ ined that o f t h e s e v e n pins allegedly placed by K ing in 1 990, only pins 1, 2, and 4

3coincided with Newm an’s m easurem ents. 2

¶7. A s s u c h , t he placem ent o f p i n s 6 a n d 7

— s h o w n t o N e w ma n b y O ’ N e a l him self —ref lect e d a s o u t

h e r l y e n c r o a c h m e n t o f a

p p r o xim ately 122.38 f

e et onto the Blalocks’ land. Newm an f

urther te s tif

i ed that f or pins 6 and 7 t o be accurate, b oth his and King’s
survey s w ould have to be entirel y i n a c c u r a te at a m u ltitude of other locations, which
Newm an a sserted was h ighly unlikely

. N ewm an f urther testif

ied that King m ade no m ention of p ins 6 and 7 on his survey , w hich would be a gainst industry custom if King did in f act set those pins in 1990. Thus, when rev i e w i ng the King and Newm a n survey s together, there

were at l east two com m on aspects sup p o r t i ng O’Neal’s testim ony : ( 1) that, in general, O’Neal bulldozed a road north o f King’s southerly survey line; and (2) that his road was not entirely straight. ¶8. In addition to testim ony regarding h is a n d K i n g ’ s survey s, Newm a n stated that he relied upon aerial photographs f rom wint e r 2 0 0 6 a nd sum m er 2012 to help d eterm ine the location o f O’Neal’s road in the area of dispute. The winter 2006 p hotograph was of a higher resolution than the sum m er 2012 photograph, and did not show any s uch road in the area of dispute, as alleged by O ’Neal. I n contrast, h owever, the lower-resol u t i o n s u mmer 2012 photograph did show the “m ud pit” and road. O’Neal testif ied that f o r t he t wenty

- three y ears he had possessed his land, he had no knowledge of the encroachm ent bef o re the i nstant case was f iled in Decem

ber 2013. ¶9. Based u p o n N e wm an’s testim o ny , the chancellor determ ined that neither the legal

2 K in g ’ s p in s 1 a n d 2 relate to th e w estern m o st p o in ts o f O ’N eal’s p a rcel, w h ile p in 4 relates to th e m o st eastern -b y -n o rth east p o in t o f O ’N eal’s p arcel. 4descriptions of the two properties nor the com m on boundary line was in dispute. Rather, the

sole area of relevance p ertaining to O’Neal’s c l aim f or adverse p ossession w as the 122.38- f oot portion of land encroaching on the Blalocks’ side o f the b oundary line—ref e rred to as the “m ud pit” and “ borrow pit.” Finding that O’Neal had f ailed t o pro v e each essential elem ent of adverse possession by clear and c onvincing evidence f or the portion of disputed land, the chancellor dism issed O’Neal’s claim

. O’Neal tim ely perf ected his a

ppeal. Finding no error on the part of the chancellor, we af f irm

. STANDARD OF REVIEW ¶10. “This Court will not disturb the f indings of a chancellor unless those f i n d i n g s were

m anif estly in error, c learly erroneous, or . . . the result of t he a p plication o f an erroneous legal standard.” Knight v. Covington C t y. , 27 S o. 3 d 1163, 1167 (¶14) (Miss. C t. App. 2009).
“W here there is substantial e vidence to support a chancellor’s f indings, [ an appellate c]ourt is without the authority to disturb a chancellor’s conclusions, although it m ight have f ound otherwise as an original m atter.” Keener Props. LLC v
. Wi l s o n , 9 12 So. 2 d 9 54, 956 (¶3) (Miss. 2005). A chancery c ourt’s i nterpretation and application of law, however, is reviewed under a de novo standard. Id.
DISCUSSION ¶11. O’Neal contends on a ppeal that the chancellor erred in his application o f the f acts to the law by f

i nding that O’Neal had f

ailed to s atisf

y his burden of proving adverse p ossession by clear and convincing evidence. Reviewing the record bef ore this Court, we disagree. ¶12. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) s ets f orth the f ollowing:

5(1) Ten (10) y e ars’ actual adverse possession by any person c laim i ng to be the

owner f or t hat tim e of any land, unin t e r r uptedly 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 enced or continued, shall vest i n e v ery actual occupant or possessor of

such land a f

ull and com

plete title[ .] ¶13. Thus, f

or a claim ant to establish title b y a dverse possession, each of the f ollowing six elem ents m

ust be proven by clear and convincing evidence. “For p ossession t o be adverse it m ust be (1) under c laim o f ownership; (2) actual or hostile; ( 3) open, n otorious, and visible; (4) continuous and uninterrupted f or a period of ten y ears; (5) exclusive; a nd (6) peacef ul.” Roberts v. Y

oung’s Creek Inv. Inc. , 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. W

ong , 904 So. 2d 1 34, 136 (¶15) (Miss. 2 004)). The claim ant bears the burden

o f p r o v ing adverse possession by clear and convincing evidence. Scott v. A nderson-Tull y C o
. , 154 So. 3 d 910, 916 ( ¶14) (Miss. Ct. A pp. 2015). “ C lear and convincing ev i d e n c e i s such a high standard of

proof that even the overwhelm ing weight of t he evidence does not rise t o t he sam e level.” M assey v. Lambert , 84 So. 3d 846, 848 (¶7) (Miss. Ct. App. 2012) (citation om itted) (citing In re C.B. , 547 So. 2d 1369, 1375 (Miss. 1990)).
1. Under Claim of Ow nership ¶14. W h en determ ining whether an adverse p o s s e s s o r h a s s t a k e d a p r o p e r claim of ownership, the r elevant inquiry is “whether the possessory acts relied upon by the would be adverse possessor are suf

f icient to f ly his f lag over the lands a nd to put t he record title holder

on notice that the lands are held under an adverse c laim o f ownership.” Hill v. J ohnson , 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citing Apperson v. W hite , 950 S o . 2d 1113,
1117 (¶7) (Miss. Ct. A pp. 2 007)). “Adverse possession o f ‘wild’ or unim p roved l ands m ay

6be established by e vidence of acts that would be w holly i nsuf f icient in the c ase of im

proved

or developed lands.” Apperson , 950 So. 2d at 1117 (¶8). As such, “the chancellor m ust look

to the q uality and n ot the quantity o f t he acts indicative of possession.” Id. “A party claim ing land by

adverse possession . . . enclos[ ing] the piece of property w ith a f

ence is a f actor to b e considered in determ ining if adverse possession occurred.” Buford v
. Logue , 832 So. 2d 594, 602 (¶23) (Miss. Ct. App. 2002). ¶15. At the outset, the chancellor specif ically noted t hat the road allegedly built by O’Neal in 1990 d i d not encroach on the Blalock p roperty u n t i l o n e c r ossed the “ borrow pit” and approached the “ m

u d pit,” heading in a w est-to-east d irection. As s u ch, the c hancellor held that any acts of ownership taking place west of the “borrow pit” would not suf f i ciently place

an owner o n notice o f an encroachm ent, and theref ore, were irrelevant. Thus, the only area where O’Neal’s “ f

lag” m ay have been f

lo w n was t he 122.38-f

oot southerly deviance consisting of

the “borrow pit” and “m

ud pit.” ¶16. Here, t he chancellor f ound that O’Neal h ad f

a iled to clearly and convincingly satisf y this f irst elem ent by highlighting a variety of problem s with O’Neal’s evidence. To begin, the chancellor noted that pin 7 —allegedly placed by King i n 1990—was l ocated i n a set of bushes, n o photographs of t he p in w ere introduced i nto evidence, and there w as no testim ony that the area surrounding the pin was clear l y visible. Moreover, t he chancellor noted that, heading f rom the w esternm ost p oint of the b oun d a r y l i n e i n an easterly direction, the southerly e ncroachm ent d id not begin until af ter approxim ately 1,000 to 1,200 f eet—raising the issue of whether an o wner could reasonably perceive a 1 22.38-f oot southerly deviance

7when t raversing such a distance. The chancellor n oted f urther that e ve n O ’Neal knew his southern border was a due east-west line, but believed the “pins were within the calls of his deed.” ¶17. The chancellor next m ade light of the f act t hat s everal of the witnesses t estif ied that O’Neal’s road could not be seen f rom Highway 2 7; no photographs of the r oad were entered into evidence. Theref

ore, the chancellor concluded that the s outhern property owner could

not have seen the road f

rom H ighway 27, nor pin 7 located i n the bushes. F urtherm ore, m any of the acts or c laim s of o wnership a sserted by O’Neal pertained to his invitees r ather than the public at large. In addition, there was no photographic evidence of the alleged painted line

m arking the b oundary , n or a ny indication that O’Neal m aintained the painted boundary

. Adding to these considerations, the chancellor f ound that O’Neal had not had the disputed

area of land assessed to him or paid taxes o n it, in large part due to O’Neal’s belief that the encroaching area w as within t he calls of his deed. See Nosser v
. Buford , 8 52 S o. 2d 57, 61 (¶17) (Miss. Ct. App. 2 002) (holding pay m ent of taxes i s b u t o ne i ncident to possession, though not dispositive). ¶18. Most crucial to the c hancellor’s f indings on this elem e nt, however, were the 2006 and
2012 aerial photographs u p o n w hich Newm an relied t o locate O’Neal’s road. T estim ony of f ered o n b ehalf of O ’Neal m aintained that the road was both easily visible (though, not f rom Highway 27) and large enough to “drive a c ar down it.” It is undisputed that the

sum m er 2 012 aerial photograph clearly reveals the “m ud pit” in the n ortheast corner of the Blalock property , the area of dispute. The aerial photograph taken during winter of 2006,

8however, illustrates no such road or “m ud pit.” The chancellor f ound this conspicuous, as the 2 006 photograph was of a higher-quality resolution and presented a c l e a r er r epresentation of the land due to less f

o liage. T h o u gh the chancellor did not f ind t hat the photographs

e q u a t e d t o a n entire absence o f the road, he did f ind that t he road was “not a s obvious as represented, or s om ething used to ‘f ly a f lag’ of ow n e r s h i p to one inspecting the property , and in particular the area of the ‘borrow pit’ [ and] ‘m ud pit.’” ¶19. Reviewing this e vidence in light of the def erential standard accorded a chancellor’s f indings, we cannot hold that the chancellor erred, as there was suf f i cient evidence to support the f inding that O’Neal did not satisf y this elem ent by

clear and convincing evidence.
2. Actual or Hostile ¶20. “Possession i s def

ined as ef f ective control over a def

inite area of land, evidenced by things v isible to the ey e or perceptible to the senses.” Roberts , 118 So. 3d at 670 (¶10).
“Poss ession is hostile and adverse when the adverse possessor i ntends t o claim title notwithstanding t hat the claim i s m ade u n d e r a mi staken belief that t he land is within the calls of t he possessor’s deed.” Id. (citing W i cker v. Harvey , 937 So. 2d 983, 993-94 (¶34) (Miss. Ct. App. 2006)). “ [ T]he adverse possessor . . . m ust present som e proof that [ his] occupation o f t he record o wner’s property was hostile, and that the record owner—aware of the adverse possessor’s hostile occupation—took no action to prevent adverse p ossession.” Double J Farmlands Inc. v. Pa r a d i se Baptist Church , 999 So. 2d 826, 829 (¶15) (Miss. 2008). “The adverse possessor m ust a lso possess the p roperty without perm i ssion, because
perm ission def

eats any c laim of adverse possession.” Rob e r t s , 1 1 8 So. 3d at 670 (¶10)

9(citing Apperson , 950 So. 2d at 1118 (¶12)).

¶21. In this case, to c lassif y O’Neal’s p oss e s s i o n a s “ h o s t i l e ” w o u ld require that he

m aintained control o f a def inite area “visible to t he ey e or perceptible to the senses.” See id.
To reiterate—as the chancellor did—the f ocus of our inq uiry pertains to the areas in controversy , the “borrow pit” and the “m ud pit.” Thus, only acts taken with respect to this disputed land, a nd any control a f f ected visible to one’s e y e , are relevant. W ith these principles in m ind, the chancellor f ound that pin 7 w as not open and obvious, as it was located in the bushes, and no photographs were introduced to rebut such a conclusion. And while t h e r e w a s t e s tim ony regarding a deer stand a llegedly built on the area in dispute,
O ’ N e a l’s witnesses stated that the stand was not visible f rom Highway 27, and N e w ma n testif i ed to seeing m ere rem nants of the deer stand when he conducted h is May 2013 survey . Again, however, t he c hancellor’s f indings under this e lem ent were based prim arily upon the
2006 and 2012 aerial photographs, which showed t hat the “m ud pit” h ad not com e into being until a fter 2006. As the o riginal com plaint in this m a tter w as f

iled in Decem

ber 2013, within the prescribed ten-y ear statutory period to cla im adverse possession, w e f ind suf f icient evidence in t h e r e c o r d to support the chancellor’s holding that O’Neal did not s atisf y the elem ent of

hostility by clear and convincing evidence.
3. Open, Notorious, and Visible ¶22. “In a d d i t i o n t o the requirem ents that possession be under a claim of ownership and hostile, possession m

ust also be o pen, n otorious, a nd visible.” Rob e r t s , 1 1 8 S o . 3d at 671 (¶13). T heref

ore, the possessor “m

ust unf u rl his f lag on the land, and keep i t f ly ing, so that

1 0the actual owner m ay see, a nd if he will, that an enem y has invaded his dom ains, and planted

t h e standard of conquest.” Id. (quoting W i cker , 937 So. 2 d at 994 (¶35)). “ A c l a i m o f adverse possession cannot begin u nless t he landowner has actual o r constructive knowledge

t h a t t h ere is an adverse c laim against his property

. ” Dean v. Slade , 6 3 So. 3d 1230, 1237 (¶28) (Miss. Ct. App. 2010). ¶23. The chancellor f

ound that the testim ony p resented in this case did not prove by clear and convincing evidence t hat O’Neal had u nf urled h is f

lag on the l and, and k ept if f ly ing, such that Blalock w ould h a v e actual or c onstructive k nowledge of O’Neal’s presence. Testim ony varied with regard t o whether the r o a d o r d e e r s tand was c l early visible f rom Highway 27, and if so, whether the stand w a s located in the actual area of controversy

. Furtherm o re, there was n o evidence t h a t any hunting or f ishing took place on the disputed land, and again, whether such activity was observable f rom H ighway 27. I n a d dition, the f orm al entry f

rom Highway 27 o nto O’Neal’s property was n ot loc a t e d at pin 7, but rather

at pin 6 (approxim ately 660 f eet n orth of pin 7 ). Lastly , the c hancellor f ound that “prior to Copiah Creek Cam

ping and Recreation

. . . , the c o n troversial area was indistinguishable f rom the l a n d o n e ither side of the b oundary , but f or the road[ .]” W e agree with these f indings, and hold that O’Neal did not prove this elem ent by clear and convincing e vidence.
4. Continuous and Uninterrupted for a Period of Ten Years ¶24. Mississippi Code Annotated section 15-1-13 r equires continuous and uninterrupted possession of a disputed p r operty f or at least ten y ears. See Miss. Code Ann. § 15-1-13. “[ O]ccasional use of s om eone e lse’s property without an enclosure d oes not pass t he test of

1 1adverse p o sse s s i o n . E l l i s on v
. Meek , 820 So. 2d 730, 736 (¶21) (Miss. Ct. App. 2002).

“Sporadic use of another’s property does not constitute o pen and notorious possession.” Id. ¶25. O’Neal contends that he has continuously and u ninterruptedly p ossessed the area of land in dispute since th e a l l e g e d b u i l ding of his road in 1990. W e disagree. The record reveals that the “m

ud pit” did not com e into e x istence until a f t er 2006, f

ollowing the creation of Copiah Creek Cam

ping a nd Recreation, which invited “trem endous” am ounts of ATV acti v i t y . Though ATV u se i n the “m ud pit” area has been visible, continuous, and

u n i n terrupted since 2006, it has not been present f or the requisite ten y ears prescribed by

statute. Moreover, no f

ence or entry

way was erected in this area, and any activity that took place prior to 2006 was o ccasional at best. Thus, this elem ent is not sa tisf i ed by clear and convincing evidence, and we f ind the chancellor had suf f icient e vidence to support this f inding.
5. Ex c lusive ¶26. “Exclusive possession m eans that the possessor ‘ evinces a n i ntention t o possess and hold land to the exclusion o f , and i n opposition to, the claim s of a ll others, and the claim ant’s conduct m

ust af f ord an unequivocal indication t hat he is exercising [ the] dom inion of a sole

o w n e r . ’ ” R o b e rts , 118 S o. 3 d at 671 (¶15) (quoting W icker , 937 So. 2d at 995 (¶40)). “ I t does n ot m ean that n o one else can use the property .” Id. “Exclusivity , within the m eaning of t he statute, m eans that the a dverse possessor’s use of the property was c onsistent with an exclusive claim to the right to use the property .” Id. (citing Moran v. S ims , 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).

1 2¶27. O’Neal presented a plethora of testim ony regarding actions t h a t he and his invitees

took on his property a s a whole; however, O’Neal f ailed to prov e b y c l e a r a n d convincing evidence that h e took exclusive actions on the area encom passing the “borrow p it” and “m ud pit.” As discussed above, t he “ m u d pit” m eets t he exclusivity criteria, b ut only since 2006. Bef ore the “m

ud pit,” no such exclusive actions on t he land in controversy w ere proven by clear and convincing evidence. Theref ore, we a gree with the chancellor’s f indings under this
prong. 6. Peaceful ¶28. “An a dverse possessor’s use of a claim ed property m ust be peacef

u l.” Scott, 154 So. 3d at 915 (¶28); s ee also Miss. Code Ann. § 15-1-13. This Court has held that “ expec t ed disputes associated w ith the u s e or ownership of the property are not indicative of the possession n ot being peacef ul.” Roberts , 118 S o. 3d at 671 (¶16). Here, the record does not ref lect any dispute arising am ong the parties until the instant case was f iled in 2013.
CONCLUSION ¶29. The chancery court f oun d t h a t O ’ N e a l f

ailed to establish, b y clear and convincing evidence, each elem ent of his adverse-possession claim

. R eviewing the record, we f ind that the chancellor h ad suf

f icient e vidence to correctly apply t h e f a cts to the law and reach his conclusion. As such, we f ind the chancellor did not abuse his discretion and af f irm

. ¶30. T H E J U D G M E N T OF THE COPIAH COUNTY C HANCERY C O U R T I S AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSE S S ED TO THE APPELLANT. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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