David M. Cox v. F-S Prestress, Inc. ( 1997 )

IN THE COURT OF APPEALS OF THE
STATE OF MISSISSIPPI
NO. 97-CA-01547-COA
DAVID M. COX, PAUL D. EAVENSON AND GULF FORESTRY
ASSOCIATES, INC. APPELLANTS
v.
F-S PRESTRESS, INC. APPELLEE
DATE OF JUDGMENT: 11/17/1997
TRIAL JUDGE: HON. JOHNNIE WILLIAMS
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANTS: WILLIAM H. JONES
ATTORNEY FOR APPELLEE: ROBIN L. ROBERTS
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: TITLE TO REAL ESTATE QUIETED IN
APPELLEE
DISPOSITION: AFFIRMED - 7/20/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE McMILLIN, C.J., KING, P.J., AND DIAZ, J.
KING, P.J., FOR THE COURT:
¶1. This case came as an appeal from the judgment of the Forrest County Chancery
Court which found that F-S Prestress, Inc. should recover $27,118.52 from David M.
Cox and Paul D. Eavenson for the cutting of timber from F-S Prestress's land in
violation of Miss. Code Ann. § 95-5-10(1) (Rev. 1994). The parties are adjoining
property owners and both sides claimed ownership of the tract of land from which
the timber was removed.
¶2. On appeal, the appellants raise the following issues:
(1) BOUNDARY LINES DEFINED BY THE BOUIE RIVER
REMAINED CONSTANT AMONG CONTIGUOUS PROPERTY
OWNERS EVEN AFTER THE BOUIE RIVER MADE A CHANGE OF
COURSE BECAUSE THE CHANGE WAS AVULSIVE AND NOT
THE RESULT OF ACCRETION.
(2) COX AND EAVENSON ALSO OWN THE ISLAND PROPERTY
TO THE EAST OF THE OLD CHANNEL BY ADVERSE
POSSESSION AND UNDER COLOR OF TITLE.
(3) THE FAIR MARKET VALUE OF THE TIMBER REMOVED
FROM THE ISLAND PROPERTY WAS $3800 BEING THE
AMOUNT RECEIVED BY THE SELLER.
¶3. We find no basis for the reversal of the chancery court judgment and affirm that
judgment.
FACTS
¶4. This case involves a dispute between two adjoining property owners
concerning approximately seventeen acres of land, located on the Bouie River (also
referred to as the Bowie River) in Forrest County. The dispute exists because of the
changes in the course of the river, which acted as the boundary to the lands of the
parties on the east and west of the river. Originally, there was a meander in the river
creating a peninsula of land lying to the east of the river. It is undisputed that the
river changed its course, leaving the peninsula as an island, which lies west of the
new channel of the Bouie River.
¶5. Wiley Fairchild and James W. Snowden, Jr. purchased land from W. A. Steele
and wife, Corine S. Steele, on April 18, 1957, and then transferred the property to
their company, F-S Prestress, Inc., on May 3, 1957. The property was described, in
part, as
That part of the W ½ of NE 1/4 lying and being West of Bouie River,
and that part of the E ½ of the NW 1/4 lying and being West of Bouie
River, and that part of the NW 1/4 of SE 1/4 lying and being West of
Bouie River, and NE 1/4 of SW 1/4 and a parcel of land on the S ½ of
SW 1/4 of SW 1/4 . . . .
¶6. David M. Cox and Paul Eavenson purchased the adjoining property east of the
Bouie River on January 17, 1989, from First Guaranty Bank for Savings, which had
foreclosed on a deed of trust to Associated Land Developers, Inc. The predecessors
in interest to Associated Land Developers were C. A. Clinton, Jr., and wife, Valcoe
Clinton. The property owned by the Clintons in Section 14 was described as
Commence at the Northeast Corner of the Northeast Quarter of Section
14, Township 5 North, Range 14 West, Forrest County, Mississippi, and
run West 853.7 feet, thence run Southeast along the West line of Illinois
Central Railroad right-of-way 300 feet to and for the point of beginning;
thence run South 55 degrees 40 minutes West a distance of 376 feet,
thence run South 36 degrees East a distance of 494 feet, thence run
South 71 degrees, 30 minutes West to Bouie River, then run Southeast
along the Northeast side of said river to the West line of said railroad
right-of-way, thence run Northwest along said railroad right-of-way to
the point of beginning . . . .
¶7. On December 31, 1992, Cox and Eavenson gave Gulf Forestry Associates, Inc.,
Daniel K. McGee, a warranty timber deed to
All that area considered an island bordered by Bowie River on the north
and east sides and the old river bed of the Bowie River located in the
North half of Southeast quarter, Section 14, T5N, R14W, Forrest
County, Mississippi.
Gulf Forestry paid Cox and Eavenson approximately $2,832.33 for the timber
removed. Another timber company paid them $605.42 and $338.08.
¶8. The chancery court entered judgment for F-S Prestress, granting it quiet title
to the disputed property and entered judgment in the amount of $27,118.52.
DISCUSSION
¶9. The first issue is whether the change in the river was through avulsion, which
would not affect title, or accretion. The chancery court awarded the property to the
landowners west of the river on a theory of accretion.
¶10. The law in Mississippi is well settled that changes in a stream or river that
occur gradually over time which change the boundary of the property is referred to
as accretion. An avulsive or sudden change in the course of a river causes the
property lines to stay the same. Robinson v. Humble Oil & Refining Co., 176 So. 2d
307, 316-17 (Miss. 1965). In Sharp v. Learned, 14 So. 2d 218, 220 (Miss. 1943), the
court explained
Accretion or alluvion is an addition to riparian land made by the water
to which the land is contiguous, so gradually and imperceptibly that,
though the witnesses may see from time to time that progress has been
made, they could not perceive it while the process was going on . . . .
Avulsion is a change in a boundary stream so rapidly or so suddenly
made, or in such a short time, that the change is distinctly perceptible or
measurably visible at the time of its progress.
¶11. Dr. Don Williams, associate professor of geography at the University of
Mississippi, testified that the process of the change in the course of the Bouie River
was the result of a long process of erosion and accretion. A series of aerial
photographs from 1942 and 1952 and a topographical map from 1965 showed that the
change in the river was gradual.
¶12. Mrs. Addie Clinton Holliman, whose husband and son were predecessors in
interest to Cox and Eavenson, testified that water began to flow over the new channel
yearly in the early 1960's and that the process of the new channel forming occurred
over a long period of time.
¶13. This Court "will not disturb the findings of a chancellor when supported
by substantial evidence unless the chancellor abused his discretion, was manifestly
wrong, clearly erroneous or an erroneous legal standard was applied." Broadhead
v. Bonita Lakes Mall, Ltd. Partnership, 702 So. 2d 92, 96 (Miss. 1997). While errors
of law may be reviewed de novo, the standard of review for factual determinations is
the substantial evidence standard. Id.
¶14. We find that the findings of the court were supported by the evidence and reject
the appellant's argument to the contrary.
II.
¶15. The appellants next argue that they are the owners of the property by adverse
possession. The chancery court stated "[b]ecause the Plaintiff has shown that it owns
the property in dispute by a gradual change in the course of the Bouie River, there
is no need to examine the Plaintiff's adverse possession claim." The court also did
not address the appellants/defendants' claim of ownership by adverse possession.
¶16. Miss. Code Ann. § 15-1-13 (Rev. 1995) provides that "[t]en (10) years' actual
adverse possession by any person claiming to be the owner for that time of any land,
uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or
otherwise, in whatever way such occupancy may have commenced or continued, shall
vest in every actual occupant or possessor of such land a full and complete title." The
adverse possessor must show that "possession of the disputed property was (1) open,
notorious and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5)
peaceful; (6) continuous; and (7) uninterrupted." Rawls v. Parker, 602 So. 2d 1164,
1168 (Miss. 1992).
¶17. The appellants do not make a compelling argument that the court should have
addressed their claim of adverse possession. Their argument is based primarily under
claim of ownership through their predecessors in title. In 1946, the Clinton family
took title to the 105 acres east of the Bouie River. In 1951, Mr. Clinton sold timber
on the property described as the island cutoff by the Bouie River. The burden of
proof was upon the appellants to establish by competent evidence the particular area
claimed by them. Page v. O'Neal, 42 So. 2d 391 (Miss. 1949). Appellants do not
point to any specific acts by them or their predecessors in title which would satisfy
the requirements for adverse possession of the disputed property after the change in
the Bouie River's channel.
¶18. The testimony at trial was that the Forrest County Tax Assessor's Office had
assessed the disputed property to F-S Prestress, Inc. and that they had consistently
paid the taxes. While the payment of taxes alone may not be reason to find adverse
possession, the payment of taxes has been found to be a persuasive point to consider
in finding ownership by adverse possession. Native Lumber Co. v. Elmer, 117 Miss.
720, 723, 78 So. 703, 705 (Miss. 1918). "Discussing the question of the payment of
taxes as evidence of adverse possession, the Supreme Court of the United States says:
'Payment of taxes, as described in the above statement of facts, is very important and
strong evidence of claim of title; and the failure of the plaintiff's predecessors to make
any claim to the lot, or to pay the taxes themselves, is some evidence of an
abandonment of any right in or claim to the property.' In Ewing v. Burnet, 36 U.S. 41,
it was held by this court that payment of taxes on land for 24 successive years by the
party in possession was powerful evidence of the claim of right to the whole lot upon
which the taxes were paid." Native Lumber Co., 78 So. 705, (quoting McCaughn v.
Young, 85 Miss. 293, 37 So. 839 (1905)).
¶19. We find that the chancery court did not err in failing to consider the appellants'
claim of adverse possession.
III.
¶20. The appellants argue that the court should have based the damage award solely
on the amount they received for the timber. The testimony was that the appellants
were paid approximately $3776 for the timber. Gulf Forestry paid $2832.33 and
another company, Southgate, paid $605.42 and $338.08.
¶21. Miss. Code Ann. § 95-5-10(1) provides:
If any person shall cut down, deaden, destroy or take away any tree
without the consent of the owner of such tree, such person shall pay to
the owner of such tree a sum equal to double the fair market value of the
tree cut down, deadened, destroyed or taken away, together with the
reasonable cost of reforestation, which cost shall not exceed Two
Hundred Fifty Dollars ($250.00) per acre.
¶22. The court found that the "fair market value of the trees harvested on the
disputed property is the value of the trees as they stand in the woods." The court
based its findings on the testimony of Kip McGee, vice president of Gulf Forestry
Associates, who stated that "fair market value would be what timber sells for while
it's standing in the woods."
¶22. Mr. McGee was asked to calculate the market value of the timber that was sold
off the property. In his calculations he included the amount received from the mill,
the amount paid to the loggers, and the amount paid to the appellants. To the figure
of $9,128.38, he added $2,730.88 as his calculation of the value of the timber
harvested by Southgate. The figure of $11,859.26 arrived at by Mr. McGee was used
by the court in calculating the award of damages. The court awarded $23,718.52 in
damages or double the amount testified to by Mr. McGee.
¶23. The appellants state in their brief: "The lower court [found] that the fair market
value of the trees harvested was the value of the trees as they stood in the woods, or
$11,859.26. This may be the actual value of the trees, or the amount the logger must
sell the timber for to make a profit, but it is not the fair market value paid to the
owner." The appellants do not offer any authority that the price paid to the owner is
the "fair market value" contemplated by the statute.
¶24. In reaching its conclusion as to the fair market value of timber, the chancery
court had to rely on the testimony or evidence presented. The substantial evidence,
as presented through the testimony of Mr. McGee, supports the finding of the court.
Consequently, this Court affirms the decision of the court.
¶25. THE JUDGMENT OF THE CHANCERY COURT OF FORREST
COUNTY IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO THE
APPELLANTS. STATUTORY PENALTIES AND INTEREST ARE
AWARDED.
McMILLIN, C.J., SOUTHWICK, P.J., DIAZ, IRVING, LEE, PAYNE,
AND THOMAS, JJ., CONCUR. BRIDGES AND MOORE. JJ., NOT
PARTICIPATING