Dedeaux v. Bayou Delisle Lumber Co. , 112 Miss. 325 ( 1916 )

HoldeN, J.,

delivered the opinion of the court.

The appellants, O. J. Dedeaux et al., filed their bill in the chancery court of Harrison county, seeking to confirm their title, and to cancel appellees’ claim, to certain land described as section 38, township 7, and section 7, township 8, all in range 13, west, St. Stephens meridian, Harrison county, Miss.; and from a decree denying the relief and dismissing the bill, this appeal is taken here.

The undisputed facts, briefly stated, according to this record, are that more than a century ago the land known as section 38, here involved, was granted by the Spanish government to Chevalier Dedeaux, through whom the appellants now claim. The Chevalier Dedeaux moved upon the land, established his residence there, reared his family, and died and was buried there. The old landmarks, the place of his home where he died, as well as his grave, are yet distinguishable, and stand as silent monuments to the memory of this deceased pioneer. Afterwards, his title to the land was confirmed by the United States government, and the appellants here have an unbroken chain of title to it from this ancestor. This proof of a clear title in the appellants having been made before the chancellor, the defendants in the court below conceded the validity of the title in Chevalier Dedeaux, but claimed that they have title to the land by adverse possession; and upon this issue the case was tried out by the lower court.

As proof of title by adverse possession, tiie appellees introduced two tax deeds made by the tax collector of Harrison county, dated January 1, 18-77, and March 3, 1879, which deeds convey to W. S. Keel, through whom appellees claim, “the west one-half fractional sec. 25,” and the “west one-half fractional sec. 36,” which described land appears to lie immediately east of section 38, the land involved in this lawsuit. The appellees show further that they exercised ownership over section 38 by cutting timber off of it occasionally at different times’between 1880 and 1887, and that appellees burned coal kilns on the land occasionally at separate intervals during a long period. It is also disclosed from the testimony that, at different times, a shanty or two were built, either on section 38 or on fractional sections 25 and 36, by appellees. The land was suitable for cultivation, but was not cultivated.

It clearly appears to us from this record that the appellees failed to establish any color of title to section 38, the land here in controversy. Nowhere in this record does it appear that the appellees had ever claimed any paper title to section 38, but their title, as evidenced by the tax collector’s deeds and the tax receipts, was the title to the west one-half of fractional section 25, and west one-half of fractional section 36, but there is no claim of paper title to section 38. And while the tax deeds appear to include three hundred and twenty acres of land in sections 25 and 36, yet there is nothing in this record to show that this three hundred and twenty acres was intended to be located anywhere outside of sections 25 and 36. Therefore the proof fails to show that the appellees entered the land (section 38) under color of title. The appellees, having no color of title to section 38, could only acquire title by adverse possession-to such part of the land as was actually held in possession and inclosed, or otherwise actually and continuously occupied, for the statutory period of ten years.

The evidence in this case shows.that the appellees occasionally went upon section 38, and cut certain timber thereon, and at other intervals burnt some coal kilns on the land, but it seems from all of the testimony that this occupation of the land, if it cán be said to he an occupation, was not continuous and hostile, nor was it for a period of ten years; and we think that the most that can be said of the claim of adverse possession is that it was continuous only for a period of about seven years, thus falling far short of' the statutory requirement of “ten years’actual adverse possession, . . . claiming to be the owner for that time. ’ ’

In view of these conclusions, we do not think that the defendants in the court below met the burden of proof required in establishing their title to the land by adverse possession, and we hold that the title to section 38 here involved remains in the appellants as heirs of the Chevalier Dedeaux.

The decree of the lower court is reversed, and decree entered here for appellants.

Reversed.