IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 95-CA-00837 COA

DALTON WALLACE AND WIFE, BOBBY CARNEY

WALLACE, DEZZIE WALLACE,

GLENDA RUTLAND, AND GENNELL NELSON

APPELLANTS

v.

LADON WALLACE AND WIFE, DUTHA WALLACE APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 03/10/95

TRIAL JUDGE: HON. LARRY BUFFINGTON

COURT FROM WHICH APPEALED: LAWRENCE COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: ROBERT W. LAWRENCE

ATTORNEY FOR APPELLEE: MALCOLM T. ROGERS

NATURE OF THE CASE: CIVIL - REAL PROPERTY

TRIAL COURT DISPOSITION: CHANCELLOR CONFIRMED THE COURT

ORDERED SURVEY AND ENTERED FINAL

JUDGMENT AFFIRMING PROPERTY LINE

DIVISION.

DISPOSITION: AFFIRMED - 10/21/97

MOTION FOR REHEARING FILED: November 5, 1997

CERTIORARI FILED: 12/29/97

MANDATE ISSUED: 4/15/98

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ.

BRIDGES, C.J., FOR THE COURT:

This case involves a very long, drawn out, boundary line dispute between brothers. The chancellor

adopted the survey of the court-appointed surveyor instead of the owner's survey. On appeal, Dalton

Wallace presents the following:

I. THE SURVEYOR DID NOT FOLLOW THE ORDER OF THE TRIAL CHANCELLOR

WHEREIN THE SURVEYOR DID NOT USE GOVERNMENT LAND OFFICE DATA.

II. THE SURVEYOR USED UNVERIFIED MONUMENTS THAT WERE IN DISPUTE AS
A BENCHMARK DESPITE THE TRIAL CHANCELLOR'S ORDER NOT TO USE

MONUMENTS ON THE GROUND.

III. THE TRIAL CHANCELLOR RULED THE COURT SURVEYOR MADE

SUBSTANTIAL ERRORS BUT THE SITTING CHANCELLOR ENTERED THE SURVEY

WITHOUT HEARING, READING, OR CONSIDERING THE APPELLANT'S EVIDENCE

THAT THE SURVEY CONTAINED MATERIAL SERIOUS ERRORS VIOLATING DUE

PROCESS RIGHTS OF THE APPELLANT.

We will address Dalton's issues in toto below. Finding no error, we affirm.

FACTS

This saga began in 1987 when Ladon Wallace filed a complaint to cancel clouds on his title. The

complaint was filed during the term of Chancellor Jack Walker. Judge Walker heard testimony in the

case but never rendered a final opinion therein, leaving that to his successor, Chancellor Harris

Sullivan, who took office in 1991. Judge Sullivan also heard testimony of numerous witnesses, made

findings of fact, but rendered no final opinion, specifically reserving that task for the incoming

Chancellor, Judge Larry Buffington, who assumed the office in 1995. Chancellor Buffington also

heard testimony, entered evidence of prior hearings along with the findings of Chancellor Sullivan

and made his final ruling in the case on June 26, 1995, adopting the court-appointed survey.

Through the eight years of hearings with the three chancellors, there were also a number of surveys

made by at least three different surveyors. These surveys, as they existed by date, were all considered

by the respective chancellor, and the record reveals the results of both Chancellor Sullivan's and

Chancellor Buffington's consideration of same. Chancellor Buffington concluded the case and based

his findings and final opinion on the survey of Dungan Engineering, P. A. dated March 9, 1994. We

assume that this survey was altered or amended by its maker between said date of March 9, 1994 and

the date of the final judgment of June 26, 1995, but the record does not bear that out, except by

supposition after the last findings of Chancellor Buffington on March 10, 1995.

This action involves 200 acres of land originally owned by Troy Wallace and wife, Dezzie Wallace,

parents of the appellant Ladon Wallace and the appellee Dalton Wallace. In 1973 Troy Wallace and

wife voluntarily partited the 200 acres of land by dividing it into three tracts, and executing three

deeds, one to each of his sons--Ladon, Darry and Dalton. The three tracts of land were not equal in

size, Ladon's being 84 3/4 acres, Darry's being 14 3/4 acres and Dalton's being 99 1⁄2 acres. In

December of 1996, Darry conveyed to Ladon his 14 3/4 acres. Since Darry's tract was merged into

Ladon's, we now have two large tracts of land with one boundary line in contention and the

description of the one acre tract occupied by Dezzie to be established.

At the time Troy agreed to give his sons the land in question, all agreed that Ladon would make the

mathematical calculations to determine the descriptions to each tract of land and that he would

engage a lawyer to draft the deeds conveying each tract of land to the respective grantee. This was

done with Ladon preparing a plat of the 200 acres showing each tract of land as divided and said plat

was attached to each of the three deeds prepared by the attorney. When Ladon made his calculations

and prepared the descriptions, he made provision for the reservation of a one acre tract of land out of

the Ladon and Darry tracts to be occupied and used by their parents, Troy and Dezzie for their
lifetimes.

The problem with Ladon's descriptions is that his calculations were based upon the assumption that

the section wherein the land in question lies was a perfect one mile square section, measuring 80

chains by 80 chains, with 640 acres of land embraced within. This was not the case and as time

progressed after the recording of the deeds and attempts to erect fences on land lines, disputes arose

between Ladon and Dalton as to where the true land lines were.

Ladon's descriptions for each tract of land as reflected in the deeds executed by Troy Wallace and

wife, lacked bearings, and in some instances lacked calls, particularly as to the one acre tract, which

would accurately identify the necessary corners to the divided property. Also, those calls given in the

descriptions were based upon each forty acre tract of land involved measuring 1,320 feet both east

and west and north and south.

Upon discovering that there was more land on the ground than described in the deeds, Chancellor

Sullivan appointed a surveyor to run the lines and establish certain points between the parties'

properties. Additional surveys were caused to be made by the original defendants. These surveys

showed encroachments of fences at various locations, inaccuracies in calls and measurements, and

established land lines by monuments and section lines.

It is not unusual that each of the surveys entered as exhibits differ remarkably. It is worth noting,

however, that the two surveyors who testified and whose surveys were admitted into the record

testified that they could not find the heart pine post which was alleged by all parties to have been at

or near the northwest corner of the Southwest Quarter of the Northwest Quarter of Section 36, but

each of them used the quarter section corner as their starting point.

Chancellor Sullivan on January 10, 1991, found that the parties intended to divide and occupy the

land according to the plat attached to each deed. Further, Chancellor Sullivan established a boundary

line between the Plaintiff Ladon and the Defendant Dalton, and generally described the one acre of

land to be occupied by Dezzie, widow of Troy. He instructed a court appointed surveyor, Jack Day,

to go onto the land, prepare a survey in accordance therewith, and mark the lines and corners. For

some reason Jack Day was unable to perform this work, but Dungan Engineering, P. A., was

approved by all parties and accepted by the Court in 1993 to perform such services and a judgment

was entered to comport with his ruling.

The Dungan survey was completed and filed with the court in 1994. Subsequently, Dalton objected

to the survey and a hearing was held on December 8, 1994 by Chancellor Sullivan. Chancellor

Sullivan heard testimony from the court-appointed surveyor as well as the surveyor hired by Dalton

to perform a subsequent survey. In refusing to enter a final judgment, the chancellor stated the

following:

[T]his Court finds that there is a substantial basis to the objection. Let me say this. I'm not

deciding the court-appointed surveyor is not right. For all I know, he is exactly right, although

there is some substantial evidence to the effect that it is not right. It may be that the courtappointed survey is the best that can be done under the circumstances of this case.

. . . . So let me make this clear that I am not ruling against the court-appointed surveyor. I am
not holding that it is inaccurate. I am simply holding . . . that there is some substantial basis for

the objection. . . .

Now, I think that the Judge that comes in on January 1st or 2nd, I think that it is going to be up

to him to determine whether or not the court-appointed survey is correct or whether or not the

other survey is correct or exactly what is correct.

With that, Chancellor Sullivan washed his hands of the case and left the decision of which survey was

correct to the incoming chancellor. Therefore, Chancellor Buffington held a hearing on March 10,

1995, and after hearing the testimony of the court-appointed surveyor, allowed the findings of

Chancellor Sullivan on December 4, 1994 to be made a part of his ruling. Chancellor Buffington

accepted the plat of Dungan Engineering, P. A. dated March 9, 1994, as the court appointed survey

and made his final judgment therefrom, making references from said survey when he finally described

a boundary line dividing the lands of Ladon and Dalton, and further describing the one acre tract

belonging to Dezzie. Said one acre tract of land had been previously described in the form of a

square, a parallelogram, a quadrilateral and possibly a trapezoid. The final judgment of Chancellor

Buffington, according to the survey of Dungan, configures said one acre into the shape of a

pentagon. It appears that the survey of Dungan correctly described the land in question and complied

with the testimony of the parties, as well as, the findings and order of Chancellor Sullivan. The

Dungan survey reflected both monumental markers and government land office data in the making

thereof.

DISCUSSION

Only Ladon and wife, and Dalton and wife, are involved in this appeal. The main issue before this

court is whether the last sitting Chancellor, Judge Buffington erred in using the survey of the court

appointed surveyor in his final ruling establishing the boundary line between the parties, as well as

describing the one acre tract in question. We believe he did not, and thus affirm the chancellor. Our

standard of review of a chancellor's ruling is limited. The determination of the legal boundary

between parties is a question of fact for the chancellor, and his decision will not be reversed unless

manifestly in error. Farris v. Thomas et ux, 481 So. 2d 318, 319 (Miss. 1985).

Chancellor Sullivan heard testimony from both surveyors. The court-appointed surveyor testified that

he made his survey based on Chancellor Sullivan's judgment. In so doing, the court-appointed

surveyor used both Government Land Office (GLO) records and particular monuments on the

ground in formulating his survey. Dalton's surveyor on the other hand, did not follow Chancellor

Sullivan's judgment and relied exclusively on GLO records to the exclusion of anything on the

ground. After hearing the conflicting testimony of the surveyors, Chancellor Sullivan refused to rule

and passed that responsibility to Chancellor Buffington. Chancellor Buffington followed the mandate

from Chancellor Sullivan and chose one of the surveys.

Both surveyors utilized accepted surveying practices although there are resulting differences in the

outcomes. Nonetheless, there was substantial credible evidence in the record to support Chancellor

Buffington's choice of the court-appointed survey. Like the case of Rawls v. Parker, 602 So. 2d

1164, 1169 (Miss. 1992), "[t]he surveys were made by two registered land surveyors using generally

accepted surveying principles, and it was within the chancellor's purview to recognize one survey and

reject the other." In Mabry v. Winding, 229 Miss. 88, 93, 90 So. 2d 175, 177 (1956), the court was
also faced with conflicting surveys and conflicting testimony. However, the supreme court concluded

that such testimony presented factual issues best resolved by the chancellor. Id. "Factual questions

relating to the making of the survey are for the resolution of the chancellor." Craft v. Thompson, 405

So. 2d 128, 130 (Miss. 1981).

Dalton claims that his due process rights were violated because his surveyor was not allowed to

testify. To the contrary, Dalton's surveyor gave extensive testimony about the making of his survey.

He was heard by Chancellor Sullivan, who thereafter left it up to Chancellor Buffington to choose a

survey. Chancellor Sullivan did not state that the court-appointed survey was wrong. In fact, he

admitted that it may well be right. But he chose not to enter judgment. Chancellor Buffington refused

to relitigate the case, after it being in the court for eight years. He listened to the court-appointed

surveyor who testified not only to his own surveying methods, but also those utilized by Dalton's

surveyor. Exercising his judicial discretion, Chancellor Buffington found that the court-appointed

survey was correct and established the boundary line accordingly. Dalton proffered the trial transcript

of his surveyor. After reviewing the complete records, including all of the various surveys, we

conclude that Chancellor Buffington had substantial evidence upon which to base his decision.

THE JUDGMENT OF THE LAWRENCE COUNTY CHANCERY COURT ADOPTING THE

DUNGAN SURVEY TO ESTABLISH BOUNDARY LINES AND THE ONE-ACRE TRACT

IS AFFIRMED. COSTS OF THIS APPEAL TAXED TO THE APPELLANTS.

McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,

PAYNE, AND SOUTHWICK, JJ., CONCUR.