Salathiel Presley and Larry Moorehead v. Ronald W. Stokes and Billy W. Heard; ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-01236-COA
SALATHIEL PRESLEY AND LARRY APPELLANTS
MOOREHEAD
v.
RONALD W. STOKES AND BILLY W. HEARD APPELLEES
DATE OF JUDGMENT: 08/08/2018
TRIAL JUDGE: HON. ROBERT L. LANCASTER
COURT FROM WHICH APPEALED: WINSTON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: STEVEN DETROY SETTLEMIRES
ATTORNEYS FOR APPELLEES: JOHN DICKSON MAYO
ZACHARY ANDREW MADISON
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 02/11/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Salathiel Presley and Larry Moorehead filed a petition for adverse possession of land
owned by Ronald Stokes and Billy Heard. Stokes and Heard filed a counterclaim to confirm
their title to the disputed property against Presley and Moorehead’s claim. After a trial on
the merits, the chancellor found that Presley and Moorehead failed to establish the elements
of their adverse possession claim and entered an order denying their petition and granting
Stokes and Heard’s counterclaim. Presley and Moorehead appealed from the denial, and we
reversed and remanded for a new trial. Following a trial on remand, the chancellor rendered
a judgment denying Presley and Moorehead’s requested relief and granting Stokes and
Heard’s requested relief in their counterclaim. Presley and Moorehead appeal from that
judgment. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Salathiel Presley and Larry Moorehead entered into an option to purchase
approximately sixty acres of real estate (the Cannon Place) from the heirs of J.C. Cannon,
Betty Chancellor, Mary Holmes, and Linda Luke (Cannon heirs). Exercising the option, a
warranty deed conveying the property, Parcel 7, to Presley and Moorehead was executed on
August 22, 1985, and recorded on October 1, 1985. In the deed conveyed to Presley and
Moorehead, four parcels, collectively named Parcel 5 and totaling approximately thirteen
acres of the Cannon Place, had been conveyed to Byron C. Cannon and his wife, B.M.
Cannon, and were excepted from the conveyance. The excepted parcels were later conveyed
from B.M. Cannon to Ronald Stokes and Billy Heard by a warranty deed on November 30,
2006.
¶3. On January 3, 2009, Presley and Moorehead (Appellants) filed a petition for adverse
possession, fraudulent conveyance, injunction, damages, and declaratory relief against Stokes
and Heard (Appellees). The suit also named Marcus Yates, Susan Yates, and Renasant Bank
as defendants; besides the Appellees, all other parties were dismissed with prejudice on
September 24, 2010. The Appellees filed a counterclaim, requesting confirmation of their
title to the disputed Parcel 5 against any adverse possession claim of title by the Appellants.
A trial on the adverse possession claim commenced on September 15, 2014. At the
conclusion of the Appellants’ case-in-chief, the Appellees moved the court for a dismissal
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pursuant to Mississippi Rule of Civil Procedure 41(b), which the chancellor granted. An
order reflecting the dismissal was entered on September 30, 2014. Dissatisfied with the
chancellor’s ruling, the Appellants filed a motion for a new trial on October 6, 2014.
Following a May 6, 2015 hearing, an order denying the Appellants’ motion was entered on
May 13, 2015. The Appellants appealed from the denial, and this Court reversed and
remanded the case for further proceedings.1 On remand, the Rule 41(b) motion was denied,
and the case proceeded to trial for a second time.
¶4. On July 19, 2018, a second trial was held. Evidence presented at trial included the
testimony of nine witnesses: Pam Reel, Marvin Hughes, and Joey Partridge testified for the
Appellants; Niles McNeil and Darlene Bane testified for the Appellees; and each of the
parties testified on his own behalf. Neither the Appellants nor the Appellees disputed that
the deeds and tax records document ownership rights of the respective parties: the documents
indicated that the parcel at issue, Parcel 5, is titled to Stokes and Heard and runs adjacent to
Parcel 7, which is titled to Presley and Moorehead. Taxes on the properties have always been
paid by the respective title holders.
¶5. After reviewing the evidence and taking the matter under advisement, the chancellor
entered a detailed opinion and judgment denying the Appellants relief and granting the
request of the Appellees on July 30, 2018. The chancellor determined that the Appellants
had presented “vague and uncertain” evidence of their claim and failed to establish “a ten-
1
In Presley v. Stokes, 205 So. 3d 619, 623 (¶17) (Miss. Ct. App. 2016), this Court
held that the chancellor applied an erroneous legal standard regarding tacking; the
chancellor’s analysis failed to include the time period prior to the Appellees’ purchase of
Parcel 5.
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year period between 1985 and 2009 during which any part of Parcel 5 was in their continuous
and uninterrupted actual possession under a claim of right of ownership.” An amended
judgment clarifying the property description was entered on August 8, 2018. Aggrieved,
Presley and Moorehead filed the instant appeal.
STANDARD OF REVIEW
¶6. “A finding that the proof was sufficient to sustain a claim of adverse possession is a
fact-finding that requires our application of the substantial-evidence/manifest-error test.”
Orcutt v. Chambliss, 243 So. 3d 757, 762 (¶16) (Miss. Ct. App. 2018) (citing Walker v.
Murphree, 722 So. 2d 1277, 1280 (¶15) (Miss. Ct. App. 1998)). “If substantial evidence
supports the chancellor's fact-findings, this Court must affirm, even though we ‘might have
found otherwise as an original matter.’” Id. (quoting Nichols v. Funderburk, 883 So. 2d 554,
556 (¶7) (Miss. 2004)). We review questions of law de novo. Cook v. Robinson, 924 So. 2d
592, 594 (¶9) (Miss. Ct. App. 2006).
DISCUSSION
¶7. Appellants argue the chancellor’s finding that they had not acquired Parcel 5 by virtue
of adverse possession was manifestly wrong or clearly erroneous.
¶8. Mississippi Code Annotated section 15-1-13 (Supp. 1998) defines adverse possession
in relevant part:
Ten (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 . . . .
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To establish a claim of adverse possession, a claimant must prove that the possession was
“(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4)
continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.”
Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004).
I. Claim of Ownership
¶9. The Appellants assert that based on their understanding of the 1986 land transaction,
all of Mr. Cannon’s fenced-in property, including Parcel 5, was part of their purchase. They
claim that prior to purchasing the Cannon Place, they did not walk the boundaries of the land
or have a survey conducted and had no way of knowing that Parcel 5 was not a part of the
conveyed property. However, the record does not support this argument.
¶10. In Wong, the Mississippi Supreme Court provided guidance in its consideration of a
similar claim of adverse possession made against Wong by Stephen Blackburn. Id. at 137
(¶¶19-22). The court found that a “‘claim of ownership’ must exist at the beginning of the
ten-year statutory period . . . .” Id. at (¶19) (emphasis omitted) (quoting Coleman v. French,
233 So. 2d 796, 796-97 (Miss. 1970)). Because Blackburn was informed that his law-office
building was situated on a portion of Wong’s lot shortly after completing construction, he
had no claim of ownership at the beginning of the statutory period, thus his adverse
possession claim failed. Id. at (¶21). The Appellees point out:
When, in respect to a matter in which he has a material interest, a person has
knowledge of such facts as to excite the attention of a reasonably prudent man
and to put him upon guard and thus to incite him to inquiry, he is chargeable
with notice, equivalent in law to knowledge, of all those further relevant facts
which such inquiry, if pursued with reasonable diligence, would have
disclosed.
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Wicker v. Harvey, 937 So. 2d 983, 993 (¶30) (Miss. Ct. App. 2006) (quoting Crawford v.
Brown, 215 Miss. 489, 503, 61 So. 2d 344, 350 (1952)).
¶11. Like the claimant in Wong, the Appellants here were aware of issues with the property
lines and should have known that Parcel 5, along with several other parcels of land, was
excepted from their land purchase. Admittedly, neither Appellant reviewed the deed after
purchasing the Cannon Place, which conveyed the property with the following language:
less and except . . . 10 acres, more or less, in the SW1/4 of NE1/4, Section 18,
Township 15 North, Range 13 East, as recorded in the conveyance from J.C.
Cannon and wife, Pearl G. Cannon, to Byron C. Cannon and wife, Berlon M.
Cannon[.]
A plain reading of the document would have put them on notice that the disputed Parcel 5
tract was not conveyed by their deed.
¶12. Further notice was provided when the Appellants sought the opinion of a surveyor in
1986 shortly after purchasing the Cannon Place. In his testimony, Presley admits that he
opted not to go forward with the survey of the property after being informed that the east side
of his land intersected with B.M. Cannon’s home.
Attorney: Okay. Did you have a survey done before you purchased the
property?
Presley: No, sir.
Attorney: Okay.
Presley: But there’s a – at the time I was with the Social Security Office
in Starkville. And forgot his name now, but – Springer, I
believe, was a surveyor in Starkville. And I went over to his
office, discussed it with him and, you know – but we had
already agreed to buy it. And he told me – of course, he did a
lot of surveying in this area. He said that “If I was you, I
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wouldn’t have – would not have the lines run.” And he told me
why: That if he had the lines run, the lines went much further to
the east and it was going to go through [B.M. Cannon’s] house.
And we chose not to have them run because that would be
uprooting and causing confusion there.
*****
Attorney: Okay and I think your testimony was that he – he did something
and called you back and said that – said, “You don’t want to get
the lines run because your line runs through Ms. Cannon’s
house?”
Presley: That’s basically – that’s basically – he said – he did a lot of
surveying down here and he said that “More than likely it’s
going to run through her [B.M. Cannon’s] house.”
Attorney: Okay. And that was –
Presley: And he said –
Attorney: – in 1985?
Presley: Right. And he said, “You’d – that – you’d be opening a can of
worms; wouldn’t help anybody.”
Presley’s testimony essentially thwarts the Appellants’ claim of mistaken belief of
ownership, and as a result, their claim of adverse possession fails.
¶13. Mississippi law states that “one cannot set out to adversely possess the property of
another[.]” Wong, 904 So. 2d at 137 (¶19). Based on the language of the deed and the
surveyor’s informal opinion, the Appellants knew that they did not own Parcel 5. No claim
of ownership existed during any period after the Appellants knew that the adjacent parcel
belonged to B.M. Cannon. The Appellants failed to establish a claim of ownership for
purposes of adverse possession, thus the entire claim fails. See id. at 136 (¶15).
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II. Continuous and Uninterrupted
¶14. Notwithstanding the Appellants’ failure to establish even the first element of their
adverse possession claim, we will address the issue of whether the Appellants’ possession
of Parcel 5 was “continuous and uninterrupted for a period of ten years.” Id.; see also Miss.
Code Ann. § 15-1-13.
¶15. After reviewing the record, we find that the Appellants lacked sufficient evidence that
they maintained continuous and uninterrupted control of Parcel 5 over a ten-year period. The
Appellants contend that they met their burden under this element of adverse possession by
placing cattle on the property intermittently and cutting or allowing others to cut hay on the
property. Testimony presented at trial indicated that the Appellants placed their cattle on
both Parcel 5 and Parcel 7; however, they were unable to recall with any specificity how long
the cattle occupied the property—only that they were there and roamed both parcels “at
different times.” Testimony regarding when the hay was cut and by whom was likewise
vague and devoid of any firm dates:
Moorehead: How long were those cows there?
Attorney: Or just the cows owned by you or Mr. Presley.
Moorehead: How long after we put them there the first time?
Attorney: Yes sir.
Moorehead: Well, they were probably there five or six years, and then we’d
move some and then we’d bring some back at different times.
I can’t remember exactly.
*****
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Attorney: Okay. You said the cattle were on and off. When is the last time
there were cattle on this disputed part of the property owned by
you and Mr. Presley?
Moorehead: I can’t remember exactly. Right after Joey bought his land and
moved. I don’t remember what year that was.
Attorney: Okay. Tell me who Joey is.
Moorehead: He’s my niece’s husband, Joey Partridge.
Attorney: Okay. Did you keep cattle on the property for more or less than
ten years?
Moorehead: From the start?
Attorney: Yes sir, from the start.
Moorehead: More.
Attorney: Okay. Do you know about how many more?
Moorehead: All total, I would say 10 or 12 years. And that’s a guess.
*****
Attorney: Okay. All right. And between – can you tell the [c]ourt any
particular person who cut the hay out there or clipped any
particular year?
Moorehead: You mean as far as us or someone else?
Attorney: Anybody.
Moorehead: I don’t – I can’t remember what year. I don’t think anybody
could.
Two witnesses testified for the Appellants and confirmed that they cut or clipped hay on
Parcel 5 with Presley or Moorehead’s permission. Marvin Hughes stated that he clipped the
hay on the disputed parcel on at least one occasion and could not recall which year, only that
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it was between 2007 and 2009. Hughes was ousted by Stokes during his second attempt to
tend to the property on Parcel 5 and did not return. Joey Partridge, Moorehead’s nephew also
testified:
Attorney: Okay. So you cut some hay in – do you remember which years
it was that you cut hay?
Partridge: It was toward — as I recall, I clipped two years, and I cut hay a
couple more after that.
Even undisputed, none of the evidence presented adequately supports the Appellants’ claim.
As the court noted, testimony indicated that the clipping or cutting of the hay only occurred
once or twice a year, which is certainly not enough to constitute a continuous presence. No
timeline was established for when the Appellants’ cattle occupied Parcel 5. Accordingly,
substantial evidence supports the chancellor’s finding that the Appellants failed to establish
a continuous, uninterrupted ten-year period of clipping and maintaining cattle on Parcel 5.
¶16. For the reasons stated above, we find no error and affirm the chancellor’s judgment.
¶17. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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