eCases

, 207 (Miss. 1944) (“ . . . the appellees must be charged
with knowing that their deed gave them no right to encroach on the appellant’s land[.]”), and
that, by examining the deed, the Elchoses would have known which property to build on and
that they were building on the wrong property.
¶28. The final judgment reads, “Mr. and Mrs. Haas have fully met their burden of proof
and their Complaint for Mandatory Injunction should be fully sustained[.]” In cases such as
this, the general rule of law is well-established:
The general rule is that a landowner is entitled to an injunction directing the
removal of a trespassing structure on his land erected thereon by the owner of
adjoining land. The facts that the aggrieved owner suffers little or no damage
from the trespass, that the wrongdoer acted in good faith and would be put to
disproportionate expense by removal of the trespassing structures, and that
neighborly conduct as well as business judgment would require acceptance of
compensation in money for the land appropriated, are ordinarily no reasons for
denying an injunction. Rights in real property cannot ordinarily be taken from
the owner at a valuation, except under the power of eminent domain. Only
when there is some estoppel or laches on the part of the plaintiff, or a refusal
on his part to consent to acts necessary to the removal or abatement which he
demands, will an injunction ordinarily be refused.
5
Brimm is inapplicable to our analysis because, as stated by Justice Kitchens’s
separate opinion, Brimm involved (1) an admitted mistake (2) “in conveyancing,” neither
of which occurred in the case sub judice. (Kitchens Op. ¶ 57) (citing Brimm v. McGee,

119 Miss. 52

, 57-58,

80 So. 379

, 381 (1919)). Rather than a mistake “in conveyancing,” this case
involves a unilateral mistake post-conveyancing. Thus, Brimm is not authority for our
resolution of this case.
14
Shattles v. Field, Brackett & Pitts, Inc.,

261 So. 2d 795

, 797-98 (Miss. 1972). See also
Residential Advantage Dev., LLC v. Executor, Adm’rs, Devisees, Beneficiaries, & Assigns
of Heirs-at-law of Dwight Tyrone Ross,

136 So. 3d 476

, 480 (Miss. Ct. App. 2014). The
evidence supports the decision of the chancellor not to reform the deed.
2.     Whether the Haases’ claim of title is barred by estoppel and/or
laches.
¶29.   The record lacks evidentiary support for the application of estoppel or laches,
affirmative defenses to the Haases’ claim of trespass. The Elchoses failed to meet their
burden to support these defenses. See Christian Methodist Episcopal Church v. S&S
Constr. Co.,

615 So. 2d 568

, 571 (Miss. 1993). The Elchoses not only failed to sustain their
mutual-mistake claim, but they further failed to offer sufficient evidence to support the
defense of estoppel and/or laches.
¶30.   “The defense of laches applies when one party neglects to assert a right or claim, and
such neglect, when taken together with any lapses of time and other circumstances causing
prejudice to the adverse party, operates as a bar in a court of equity.” Bailey v. Estate of
Kemp,

, 784 (Miss. 2007).
The general rule is that a landowner is entitled to an injunction directing the
removal of a trespassing structure on his land erected thereon by the owner of
adjoining land. . . . “‘Only when there is some estoppel or laches on the part
of the plaintiff, or a refusal on his part to consent to acts necessary to the
removal or abatement which he demands will an injunction ordinarily be
refused.’”

Turner, 17 So. 2d at 207

(citations omitted). “The party seeking to invoke the doctrine of
laches must show: (1) [the existence of a] delay in asserting a right or claim, (2) [that] the
15
delay was not excusable, and (3) [that] there was undue prejudice to the party against whom
the claim [was] asserted.” Miss. Dep’t of Human Servs. v. Molden,

644 So. 2d 1230

, 1233
(Miss. 1994). Stated another way, the test is whether a party “induce[d] another to act to his
prejudice.” Perrien v. Mapp,

374 So. 2d 794

, 797 (Miss. 1979). No evidence was presented
that Haas induced Elchos to act to his prejudice. The issue of laches is left to the sound
discretion of the chancellor, “and his decision will not be overturned on appeal except where
there is an abuse of discretion.”

Id. ¶31. As

to estoppel,
The rule of equity is, that if one man knowingly, though he does it passively
by looking on, suffers another to purchase, and expend his money on land,
under an erroneous opinion of title, without making known his claim, he
should not afterwards be permitted to exercise his legal right against such
person. It would be an act of fraud and injustice, and his conscience is bound
by an equitable estoppel.

Bright, 137 So. 2d at 159

. The factors that must be proven are knowledge and passivity that
another is expending money on the land under an “erroneous opinion of title.” Id.; Nixon’s
Heirs v. Carco’s Heirs,

28 Miss. 414

(Miss. Err. & App. 1854). The record reflects the
Elchoses established neither in their case at trial. Perry Elchos’s own testimony defeats the
defense.

(See supra

¶19). The chancellor cited only Turner, which we will address along
with Bright and Pitts, where equitable estoppel was applied.
¶32.   Turner concerned a two-foot strip of commercial/residential property in downtown
Hattiesburg. The buyer had a perpetual easement to build a stairway on the strip leading
down to the basement of his building.

Turner, 17 So. 2d at 206

. Buyer built a stairwell, with
a sustaining wall, running the entire height of his three-story building.

Id. The court

held,
16
regardless of whether a sustaining wall was allowed to accompany any stairway into the
basement, the deed “clearly does not confer on them the right to construct a stairway on this
strip of land leading from its surface to the upper floors of [Buyer’s] building.”

Id. ¶33. Buyer

claimed Seller was estopped from objecting to the encroachment because Seller
knew of the encroachment when the building was being erected and made no objection.

Some evidence showed Buyer frequently passed by the building, yet the court found
that even if true, “it falls short of proof that the [Buyer] realized from what he saw when he
was at or passing this building that it was being constructed so as to encroach on his land.”

Id. (emphasis added).

The court held this lack of realization (lack of knowledge) alone was
enough to prevent the application of estoppel, and then went on to say that it need not express
an opinion whether the Buyer’s knowledge of the deed alone would prevent the application
of estoppel in the event Seller knew of the encroachment without objecting.

Id. ¶34. Bright

provides an excellent example of when to apply the affirmative defense of
estoppel/laches. Bright concerned a five-foot strip of land in the town of Hickory Flat. Bright
owned land north of an unnamed road and a five-foot strip west of that road. Bright,

137 So. 2d

at 156-57. Years later, the same person who sold the land to the Brights also sold land to
the Michels, immediately west of the land sold to the Brights.

Id. at 157.

Bright was present
at the sale and encouraged the transaction—he even assisted in measuring the tract and
referred to the lot the Michels were purchasing as a “corner lot.”

Id. The Michels

constructed
a concrete gutter encroaching on the five-foot strip; Bright personally sold to the Michels the
materials to build the gutter.

Id. The Michels

built a café and motel, also encroaching on the
17
strip of property, and they bought all the materials from the Brights; the Brights even loaned
the Michels money for the projects.

Id. Most importantly,

Bright stated it looked like to him
that Michels was “getting over the line.”

Id. The Brights

“constantly used the driveway”
constructed on the unnamed street and running adjacent to the five-foot strip while the
Michels were building on the five-foot strip, but nothing further was said about any
encroachment until the Brights and the Michels had a falling out.

Id. at 157-58.

¶35.   When the Brights later sued the Michels seeking an injunction for the removal of the
offending structures, the judge denied them relief under the doctrine of estoppel.

Id. at 158.

The Brights “were unconcerned whether the Michels were encroaching on the Bright
property[,]” they “sold all the materials for the construction which encroached,” and the
Brights “observed the encroachments being built.”6

Id. at 159.

The Brights knew the Michels
were building on their property and watched as they continued to expend money in
improvements; the Brights even encouraged the improvements by selling the materials and
loaning money. Because the requisite elements of knowledge and passivity were met, the
Brights were estopped from asserting their right to an injunction. See also Martin v.
Franklin,

245 So. 2d 602

(Miss. 1971) (finding a landowner who lived across the street from
site where another party was building a home on the landowner’s property in full view of the
landowner estopped from asserting his right to an injunction). In Martin, “the chancellor
found that Martin simply waited until the house was finished before he made his claim of
6
No evidence can be found in the record that the Haases had knowledge, were
passive, or were unconcerned until discord developed between the parties unrelated to the
encroachment.
18
ownership.”7

Id. at 604.

Without any aid of additional survey or research, on the day the
contractor completed building the house, as he “was putting the lock on the front door,”
Martin went up to the contractor and asked, “Do you know you are building a house on my
land?”

Id. ¶36. More

recently, the Court of Appeals held that equity required the sale of disputed land
where the Pittses built a garage on property owned by David M. Cox, Inc., rather than
granting Cox’s requested injunction. Pitts,

29 So. 3d

at 804. Cox owned a subdivision, in
which it had sold a lot to Hendry, who built a house and driveway on the property.

Id. at 797.

Hendry built the driveway partially on an adjacent lot owned by Cox.

Id. Hendry sold

his lot
to the Pittses, who later built a detached garage at the end of the driveway; as such, the
garage also encroached on Cox’s lot.

Id. Cox’s daughter

(the vice-president of David M.
Cox, Inc.) acted as the dual agent for both Hendry and the Pittses.

Id. at 798.

Cox’s daughter
informed the Pittses there was no need for a survey and that their property extended about
fifteen feet beyond the driveway.

Id. at 798-99.

The Pittses built their garage at the end of
the driveway, within where they were told their property lay.

Id. Cox himself

told the Pittses
it was okay for them to pour their foundation in the location they staked-out and passed right
by the construction site in the subdivision “every day.”

Id. at 800.

When the encroachment
was discovered, Hendry attempted to buy the adjoining lot from Cox for the price Cox
7
The record reflects no claim of ownership when the Elchoses completed the house.
The Haases first claimed ownership in late 2007, immediately upon being informed that the
Elchoses were encroaching on Haas property.
19
quoted: $30,000.

Id. When Hendry

informed Cox he intended to sell the Pittses the portion
on which their garage was sitting, Cox refused to sell.8

Id. ¶37. Finding

no party without fault, but that the Pittses were the only non-experienced
party (Cox being a real-estate developer, his daughter a real-estate agent, and Hendry an
experienced builder), the chancellor determined equity required Cox to sell the portion of the
adjoining lot on which the Pittses’ garage encroached and for the Pittses to pay the highest
market value available for the property.

Id. at 801-80.

The Court of Appeals affirmed due to
Cox’s knowledge that the structure was being built on his property (he and his daughter
passed by and saw it every day) and passivity in failing to assert his right (Cox and his agent-
daughter even aided in the construction by informing the Pittses that their land extended
beyond the driveway and that the foundation was in a proper location).

Id. at 803-06.

¶38.   A review of our caselaw and a review of the evidence offered at trial fails to support
application of the defenses of estoppel and/or laches. In his judgment, the chancellor found
a critical fact which defeats the affirmative defense of estoppel and laches: the Haases did
not learn of the encroachment until December 2007 and complained immediately. We have
held that “every case of equitable estoppel must rest on the particular facts involved.”

Bright, 137 So. 2d at 159

. Here, Elchos testified that Haas did not know that Elchos was
building on the wrong lot. Here, the chancellor rejected the Elchoses’ claims that Haas
passively sat by with knowledge that Elchos was building a structure on his lot. The
chancellor was presented with substantial evidence of the very opposite, a good portion
8
Cox had become embroiled with Department of Environmental Quality concerns
reported by Pitts.
20
coming from disinterested witnesses. Throughout his testimony, Elchos stated that Haas did
not know where the lot was. All testimony supported that Haas was surprised when he
learned that the Elchoses’ structure was on his lot. Knowledge aside (constructive or
otherwise), the evidence provides no support that Haas passively looked on, suffering the
Elchoses to expend money on land owned by Haas. Estoppel requires proof of both
knowledge and passivity—essential elements which the Elchoses failed to establish.
¶39. Although a Bright/Pitts analysis by the chancellor would have been beneficial, his
failure to cite those cases does not prevent our resolution of this case. The facts of those
cases are readily distinguishable from the record in this case, and the proof offered for the
existence of either estoppel or laches is nonexistent.
¶40. This case involves a small parcel of land out of a fifty-plus acre tract of relatively
undeveloped land. Bright and Pitts concerned narrow strips of land in developed areas—a
dedicated street intersecting U.S. Highway 78 in the Town of Hickory Flat and a 200-lot
platted subdivision, The Trace in Lamar County, respectively. In Bright and Pitts, the parties
seeking injunctions knew exactly where the construction was taking place and actively
participated in and encouraged the building of the encroaching structure. Haas did not know
the Elchoses were building on Haas’s property because of overgrowth and the distance from
the gravel road to the site. The only component in close proximity to the road was the
entrance to the Elchoses’ driveway, which was on the northeastern corner of the lot they
purchased. Haas never told Elchos the foundation or structure was properly located. Haas did
not live next door or across the street, he did not pass by or see the construction every day,
21
and he did not announce his claim to the property as soon as construction was completed.
Nor did Haas espouse any belief that the Elchoses were encroaching on his land while
simultaneously acquiescing to any encroachment. He asserted his right as soon as he was
informed the Elchoses had built on his property and sought appropriate relief.
¶41. Haas unequivocally stated that he had no knowledge that the Elchoses were on his
property. Elchos agreed. Accordingly, the record supports the chancellor’s finding that the
Haases’ claims were not barred. “[T]he doctrine [of equitable estoppel] should be applied
cautiously and only when equity clearly requires it be done.”

Bright, 137 So. 2d at 159

.
Here, the doctrine does not apply.
3.     Whether the chancery court erred in dismissing the Elchoses’
counterclaims of negligent misrepresentation, breach of contract,
and intentional misrepresentation.
¶42.   The chancery court dismissed the Elchoses’ counterclaims with prejudice. On appeal,
the Elchoses seek reversal of the chancellor’s judgment, arguing that Haas negligently
misrepresented the location of the Elchoses’ lot, that Haas breached a purported contract with
the Elchoses to provide amenities (water, sewer, and power) and to pave an entrance road to
the property, and that Haas intentionally misrepresented to the Elchoses that they were
purchasing a lot in a subdivision and those amenities (water, sewer, and power) would be
provided.
¶43.   To establish a claim of negligent misrepresentation, the party asserting the claim must
prove, by a preponderance of the evidence, the following elements;
(1) a misrepresentation or omission of a fact; (2) that the representation or
omission is material or significant; (3) that the person/entity charged with the
22
negligence failed to exercise that degree of diligence and expertise the public
is entitled to expect of such persons/entities; (4) that the plaintiff reasonably
relied upon the misrepresentation or omission; and (5) that the plaintiff
suffered damages as a direct or proximate result of such reasonable reliance.
Holland v. Peoples Bank and Trust,

3 So. 3d 94

, 101 (Miss. 2008). We cannot say based on
a review of the record that Haas was negligent to the extent that he “failed to exercise that
degree of diligence and expertise the public is entitled to expect” of persons conveying
property. See

id. A survey

of the land conveyed was, in fact, provided. The Elchoses never
established reasonable reliance on Haas’s purported misrepresentation regarding the location
of their lot. In their counterclaim, the Elchoses asserted that they “suffered damages as a
direct and proximate result of such reasonable reliance” and that they thereby “are entitled
to recover all damages resulting from the negligent misrepresentation,” but no evidence of
reasonable reliance and/or damages was forthcoming. We hold that the chancellor did not err
as a matter of law by dismissing the Elchoses’ negligent-misrepresentation claim.
¶44. The Elchoses also claim that Haas breached the sales contract by failing to provide
water, sewer, and power, though those amenities were to be expected in a subdivision. Also,
the Elchoses claim that Haas breached the contract by failing to pave an entrance road on the
property. Mississippi Code Section 15-3-1(c) (Rev. 2012) bars any action concerning
contracts for the sale of land “unless . . . the promise or agreement upon which such action
may be brought, or some memorandum or note thereof, shall be in writing, and signed by the
party to be charged therewith . . . .” This Court has held that “[t]he principal purpose of the
Statute of Frauds . . . is to require the contracting parties to reduce to writing the specific
terms of their contract, especially an agreement affecting lands for more than one year, and
23
thus to avoid dependence on the imperfect memory of the contracting parties, after the
passage of time, as to what they actually agreed to some time in the past.” Sharpsburg
Farms, Inc. v. Williams,

363 So. 2d 1350

, 1354 (Miss. 1978). No writing memorialized the
purported contract alleged by the Elchoses to have been breached. The contract of sale was
silent regarding the provision of water, sewer, and power to the Elchoses’ lot.
¶45. Stephan Haas testified that, while no representations were made with regard to power,
as to “sewer and water, there were representations made.” Those representations were
initially memorialized in the sales contract, but roughly four days prior to closing, the
Elchoses “called [Stephan] up and said they wanted those taken out.” Apparently, “Mr.
Elchos said he didn’t care about the water and sewage because he was going to run a sewage
that sprinkled on the property . . . .” The Elchoses cannot complain now about something
they asked to be removed from the contract.
¶46. While Elchos did not “care about the water and sewage,” according to Stephan, “he
did care about paving,” which was stated in the final writing as follows: “[c]losing attorney
shall hold $25,000 in escrow after closing to be dispersed to owner at the time of completion
of paving unnamed entrance road to property.” While Elchos claimed not to know that the
$25,000 was being released to Haas at closing, the Settlement Statement was signed by both
Perry and Lori Elchos and belies their claim. The Settlement Statement reflected that the
$25,000, characterized as “Deposit or earnest money,” was to be released to the seller.
Because their contentions are without merit, we affirm the chancellor’s dismissal of the
Elchoses’ breach-of-contract claim.
24
¶47. Lastly, the Elchoses counterclaimed that Haas’s purported statements regarding
provision of water, sewer, and power amounted to an intentional or fraudulent
misrepresentation. According to this Court, a plaintiff asserting fraudulent misrepresentation
must prove the following elements, by clear and convincing evidence:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s
knowledge of its falsity or ignorance of the truth; (5) his intent that it should
be acted on by the hearer and in the manner reasonably contemplated; (6) the
hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely
thereon; and (9) his consequent and proximate injury.

Holland, 3 So. 3d at 100

. But the facts presented at trial simply do not rise to the required
level of culpability on the Haases’ part to support the Elchoses’ claim of intentional or
fraudulent misrepresentation. No evidence in the record supports the claim that Haas
intentionally made statements to the Elchoses in order to induce them to purchase the
property. Additionally, as with their claim of negligent misrepresentation, the Elchoses failed
to present evidence regarding precisely how they were injured, consequently or proximately,
by Haas’s purported misrepresentations.
¶48. The chancellor did not err as a matter of law by dismissing the Elchoses’
counterclaims with prejudice, since their counterclaims are without factual support in the
record. Consequently, we affirm the dismissal of all of the Elchoses’ counterclaims.
4. Whether the chancery court erred in awarding attorney’s fees to
the Haases.
49. Both parties requested attorney’s fees at trial. The chancellor entered judgment in
favor of the Haases for attorney’s fees, amounting to $15,928.75. The Elchoses assert on
appeal that “Haas was awarded attorney’s fees and costs as a result of the very Covenants he
25
provided to the Elchoses” and that the chancellor erred as a matter of law in granting the
award. The Haases claim the award was warranted, since the Elchoses were guilty of “gross
negligence” and violated the protective covenants in the deed.
¶50. “[T]he matter of determining attorney’s fees . . . is largely entrusted to the discretion
of the chancellor.” A.M.L. v. J.W.L.,

98 So. 3d 1001

, 1022 (Miss. 2012). “The standard of
review regarding attorneys’ fees is the abuse of discretion standard, and such awards must
be supported by credible evidence.” Bailey v. Estate of Kemp,

, 787 (Miss.
2007).
¶51. In awarding attorney’s fees to the Haases, the chancellor found that the evidence
supported a finding of gross negligence on the part of the Elchoses in building their home
partially on the Haases’ property even though they were provided with a proper survey and
deed fully describing the property they in fact bought and that was intended to be conveyed.
Evidence in the record supports this award and we cannot say the chancellor abused his
discretion in so awarding.
CONCLUSION
¶52. The Elchoses knowingly bought lot 2. The Haases knowingly sold lot 2. When the
Elchoses built their home partially on lot 1 and partially on lot 2—in contravention of the
deed description and survey—there was no mutual mistake as to where the property line was
or what property was sold, so the chancellor properly refused to reform the deed. The Haases
did not know the Elchoses had built on their property until 2007, so neither estoppel nor
laches acted to bar them from asserting their claims. The chancellor did not err in dismissing
26
the Elchoses’ counterclaims because they all lacked factual support in the record. The award
of attorney’s fees was proper due to the Elchoses’ gross negligence, which was evidenced
in the record. Therefore, the judgment of the Hancock County Chancery Court is affirmed,
with costs assessed to the Elchoses.
¶53. AFFIRMED.
LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY WALLER, C.J., AND KING, J. COLEMAN, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J.; LAMAR AND PIERCE, JJ., JOIN IN PART.
KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶54. I concur with the plurality that the chancellor did not err in dismissing the Elchoses’
counterclaims, because I agree that the counterclaims are unsupported by the record. But I
do not agree with the plurality that the chancellor applied the correct legal standard to his
consideration of the Elchoses’ claim of mutual mistake, and I do not agree that the Elchoses’
affirmative defenses of estoppel and laches lacked evidentiary support. I therefore
respectfully concur in part and dissent in part.
1. The chancery court applied an incorrect legal standard in its
consideration of the Elchoses’ claim of mutual mistake.
¶55. The Elchoses claim on appeal that equity favors reformation of the deed, since they
and Kevin Haas were mutually mistaken with regard to the boundaries of the property to be
conveyed. The Haases urge that the Elchoses are bound to the property description in the
contract of sale, in the survey, and in the deed, the position the plurality adopts.
27
¶56. This Court has held that, “[i]n an action to reform a deed based on a mistake theory,
the petitioner must demonstrate a mutual mistake among the parties or a unilateral mistake
in combination with fraud or inequitable conduct on the part of the benefitting party.” McCoy
v. McCoy,

611 So. 2d 957

, 961 (Miss. 1992) (citing Perrien v. Mapp,

374 So. 2d 794

, 796
(Miss. 1979)). The burden rests with the petitioner to “prove the mutual mistake occurred
between the parties beyond a reasonable doubt.”

Id. (citing Webb

v. Brown,

404 So. 2d 1029

,
1032 (Miss. 1981)). But this Court further has held in similar cases that “it is not the
description [the parties] intended to write which controls, but the property the parties
intended to include in the description used.”

Webb, 404 So. 2d at 1031-32

(citing Brimm v.
McGee,

119 Miss. 52

, 57,

80 So. 379

, 381 (1919) (“[i]t is not what description the parties
intended to write but what property the parties intended to have embraced in the description
they used.”) (emphasis added)).
¶57.   The Brimm Court continued:
To hold that a court of equity could not . . . correct mistakes for the reason
alone that the parties used the terms they actually intended to use would be to
curtail its powers to a hitherto unheard extent. Most mistakes of fact in
conveyancing, except those caused by clerical misprision, arise in cases when
descriptive terms are intentionally employed under the mistaken impression
that they apply to the property sought to be conveyed.

Brimm, 80 So. at 381

(quoting Miles v. Miles,

84 Miss. 624

37 So. 112

(1904)). The Court
further held that, “[w]hen the mistake is admitted, then it is said there is no difficulty; then
there is an equity dehors the deed or instrument, and the power to relieve is said to be quite
as clear when the mistake is shown by proof either written or parol.”

Brimm, 80 So. at 381

28
(quoting Simmons et al. v. North et al.,

11 Miss. 67

, 71 (1844)). In Smalley v. Rogers, this
Court stated:
Of course, equity will not make contracts for parties. “If an agreement is just
what the parties intended it should be, no matter what led to it, there can be no
interference with it; but if, in putting it into form, it fails to express and
stipulate for what the parties understood and intended it should, a case is made
for a court of chancery.”
Smalley v. Rogers,

232 Miss. 705

, 712,

100 So. 2d 118

(1958) (quoting Oliver v. Bd. of
Supervisors,

211 Miss. 447

51 So. 2d 766

, 769 (1951) (quoting Hall v. State,

69 Miss. 529

13 So. 38

, 39 (1891))).
¶58.   This Court repeatedly has held “[f]indings of a chancellor will not be disturbed on
review unless the chancellor was ‘manifestly wrong, clearly erroneous, or applied the wrong
legal standard.’” Hotboxxx, LLC v. Gulfport,

154 So. 3d 21

, 24 (Miss. 2015) (citations
omitted) (emphasis added). The Hancock County Chancery Court ruled that “Mr. and Mrs.
Elchos knew, or should have known, that they were building such structure partially on their
property and partially on the Haas property . . . .” On that basis, the chancellor granted the
mandatory injunction sought by the Haases and ordered the Elchoses to remove their house
from the Haases’ property. But, apart from dismissing the Elchoses’ counterclaims with
prejudice, the chancellor altogether failed to analyze their request to have the property “re-
surveyed and re-marked to allow [the Elchoses’] home to be located on the same size lot as
the [Haases] intended to transfer.” Nor did he analyze the affirmative defense of mutual
mistake pled by the Elchoses.
29
¶59.   The “knew or should have known” standard is not the correct standard in the context
of reformation of a deed based on an allegation of mutual mistake. The plurality perpetuates
this error. As noted above, however, equity contemplates a situation in which both parties are
mistaken regarding a property description, even when the deed is clear and unambiguous. See

Smalley, 100 So. 2d at 120

.
¶60. Here, the Elchoses placed their new house on land they believed they had purchased
from Haas. The record reflects that Kevin Haas, too, believed that the Elchoses were building
their house on the lot which he had conveyed to them:
Q: Did you ever go out on the ground and show my client where his lot
was located?
A: No. I showed him about where it was located.
Q: And after my client, we’ll just say, started with the foundation, up until
you got a call regarding the Kleinekordt dirt issue, during all of that
time, you never raised any issue with Mr. Elchos regarding possibly
being on your lot?
A: No, I did not.
Q: And did you believe his house was sitting on the lot you sold him?
A: Yes.
Q: Where his house is sitting, is that the lot you intended to sell him?
A: It’s sitting on two lots.
(Emphasis added.) I agree with the Elchoses that this statement provides evidence beyond
a reasonable doubt that both parties were mistaken about the location of the property. Thus,
30
Haas’s own testimony supports that both parties to this contract were mistaken with regard
to the exact location of the property conveyed by the Haases to the Elchoses.
¶61. Additionally, Kelly King testified that, when he was in the process of staking the
property prior to laying the Elchoses’ foundation, Kevin Haas showed King a “point of
reference for elevation as to where we wanted to put the height of Mr. Elchos’ foundation
so he could have a starting point to go up with his second floor.” Haas testified that, at that
point, the foundation “was formed up” and that “I’m sure Kelly [had] put strings up there,
but, I mean, I didn’t go there to look for strings . . . .” When asked whether Haas ever had
complained about the location of the property as staked out by King prior to or after the
laying of the Elchoses’ foundation, King responded that “he didn’t say.” Indeed, Haas
himself testified: “I didn’t know [the Elchoses’ foundation] was on my property.” The record
is clear, from the testimony of Haas and others, that the Elchoses’ foundation placement did
not cause Haas alarm; he believed the structure to be on land he had sold to them.
¶62. Even if the Elchoses were charged with constructive knowledge of the location of
their property based on the deed and the survey, it appears here that all parties to the contract
of sale in 2004 understood the land the Elchoses staked out after the contract was signed
constituted the subject matter of the contract. In these circumstances, because both parties
were mistaken with respect to the location of the property, “an equity dehors the deed or
instrument” arose, and reformation constituted the applicable remedy.

Brimm, 80 So. at 381

(quoting

Simmons, 11 Miss. at 71

). Even if the deed and survey provided a clear description
of the property conveyed, that description does not control under the longstanding precedent
31
of this Court if both parties are mistaken. See

Webb, 404 So. 2d at 1031-32

(citing Brimm,80
So. at 381). Controlling the analysis is the intent of the parties: “what property the parties
intended to have embraced in the description they used.”

Brimm, 80 So. at 381

. In such an
instance, reformation is the appropriate remedy: “the deed should be reformed to coincide
with the description of the property intended to be conveyed.” Webb,

404 So. 2d 1029

, 1032.
¶63. The plurality says that “[t]he chancellor determined that the mistake was made by the
Elchoses (unilaterally).” Plur. Op. ¶ 27. But the chancellor, whose sparse ruling stated only
that “Mr. and Mrs. Elchos knew or should have known . . . ,” did not, either in his bench
ruling or in his written judgment, address the Elchoses’ affirmative defense of mutual
mistake. With respect to the learned chancellor, his limited analysis leaves the plurality to
speculate regarding the impact upon the chancellor of the parties’ arguments and the
testimony adduced before him. But the evidence in the record strongly supports the
occurrence of a mutual mistake.
¶64. The “knew or should have known” inquiry is not applicable to the facts of this case,
and, in applying it, the chancellor erred as a matter of law. I would, therefore, reverse the
decision of the chancellor and remand for the entry of a judgment reforming the Elchoses’
deed to include the property they intended to purchase and Haas intended to sell.
¶65. The Elchoses’ supplemental brief informed the Court that their house, which had been
built, in part, on land belonging to the Haases, has been moved, in accordance with the
mandatory injunction of the Chancery Court of Hancock County, onto the land described in
their deed. The Haases acknowledge in their supplemental brief that the Elchoses’ house “has
32
been moved so that the same is now located 100% on the property purchased by Mr. and Mrs.
Elchos from Mr. and Mrs. Haas on May 18, 2004.” In spite of having posted a supersedeas
bond, the Elchoses did not request a stay pending appeal and it seems that the chancery court
granted their motions to allow additional time in which to move the house. The Elchoses do
not in the present matter seek damages for having been required to move their house
wrongfully. Thus, the preceding opinion is purely hypothetical. At this time, if the deed were
to be reformed as I suggest it should be, the Elchoses’ house in its current location would be
situated, in part, on the Haases’ property. Nevertheless, I addressed the issue of reformation
because I find that the Elchoses are entitled to attorneys’ fees and costs, as discussed below.
2. The record reflects that the doctrines of estoppel and laches barred
the Haases’ trespass claim.
¶66. The Elchoses assert on appeal, as they did in their answer, that the Haases’ claims are
barred by the equitable doctrines of estoppel and laches. The Haases respond that, since they
did not know where the lot was located, “[t]here is no showing that Mr. and Mrs. Elchos
changed their position [in] reliance on anything Haas did.”
¶67. “The defense of laches applies when one party neglects to assert a right or claim, and
such neglect, when taken together with any lapses of time and other circumstances causing
prejudice to the adverse party, operates as a bar in a court of equity.” Bailey v. Estate of
Kemp,

, 784 (Miss. 2007). The Court has articulated the standard for laches
as follows:
There is no hard and fast rule as to what constitutes laches. If there has been
unreasonable delay in asserting claims or if, knowing his rights, a party does
not seasonably avail himself of means at hand for their enforcement, but
33
suffers his adversary to incur expense or enter into obligations or otherwise
change his position, or in any way by inaction lulls suspicion of his demands
to the harm of the other, or if there has been actual or passive acquiescence in
the performance of the act complained of, then equity will ordinarily refuse her
aid for the establishment of an admitted right, especially if an injunction is
asked. It would be contrary to equity and good conscience to enforce such
rights when a defendant has been led to suppose by the word [or silence, or
conduct] of the plaintiff that there was no objection to his operations.
Hans v. Hans,

482 So. 2d 1117

, 1120 (Miss. 1986) (quoting Twin States Realty Co. v.
Kilpatrick,

199 Miss. 545

26 So. 2d 356

, 358 (1946)). Stated differently, “[t]he party seeking
to invoke the doctrine of laches must show: (1) [the existence of a] delay in asserting a right
or claim, (2) [that] the delay was not excusable, and (3) [that] there was undue prejudice to
the party against whom the claim [was] asserted.” Miss. Dep’t of Human Servs. v. Molden,

644 So. 2d 1230

, 1233 (Miss. 1994) (citing Allen v. Mayer,

587 So. 2d 255

, 260 (Miss.
1991)). “[T]he question of laches is addressed to the sound discretion of the chancellor and
his decision will not be overturned on appeal except where there is an abuse of discretion.”

Molden, 644 So. 2d at 1233

(citing Morgan v. Morgan,

431 So. 2d 1119

, 1121 (Miss.
1983)).
¶68.   The present case is unlike Turner v. Morris, cited to this Court by the Haases and
cited by the chancellor in his bench ruling, in which “the appellant [Turner] sought, but was
denied in the Court below, an injunction directing the appellees [Morris and Hudson] to
remove that part of their building covering this two by thirty foot strip of land owned by
[Turner].” Turner v. Morris,

196 Miss. 297

, 206 (1944). This Court reversed
the judgment and remanded, holding that “the appellees must be charged with knowing that
their deed gave them no right to encroach on the appellant’s land . . . .”

But in that
34
case, this Court found lacking any proof of laches: the claim that the appellant frequently saw
the construction “was denied by the appellant,” and even in the absence of the denial, “it falls
short of proof that the appellant realized from what he saw when he was at or passing this
building that it was being constructed so as to encroach on his land.”

Id. ¶69. Here,

the weekend following the closing, the Elchoses marked the property lines with
T-posts and string, according to their testimony. King, who laid the foundation for the
Elchoses’ home and who testified that he, too, had staked the property, testified that Haas had
observed the placement of the foundation and the staked land surrounding it and that Haas
had made no complaints. Haas’s company assisted with the construction of a foundation for
the Elchoses’ home. Again, Haas said nothing. Haas attempted to straighten the Elchoses’
damaged home after Hurricane Katrina. Again, he said nothing. Amid the Haases’ silence,
the Elchoses built a large house on the property, then, with Haas’s assistance, repaired it
after Hurricane Katrina. Haas’s silent acquiescence to the Elchoses’ construction of a house
on land which belonged, in part, to Haas, and now his assertion that the Elchoses are
trespassers and should be forced to remove their home, were not excusable and constitute
undue prejudice to the Elchoses.
¶70.   In the present case, ample evidence also supports a finding of estoppel. The case of
Martin v. Franklin, cited to this Court by the Elchoses, demonstrates a situation similar to
the present one. There, Franklin constructed his home on lands to which Martin later laid
claim. Martin v. Franklin,

245 So. 2d 602

, 604 (Miss. 1971). But, while all parties were
present when the property was surveyed, Martin did not make a claim to the disputed portion
35
of the lot until Franklin’s home had been completed.

Id. This Court

found that, “[w]ith full
knowledge of his own title to the land in dispute, Martin stood by and saw the survey being
made of the Franklin lot and later the construction by Franklin of a home thereon.”

Id. Because “Franklin

acted in good faith believing he had title,” the Court found that “Martin
was under a duty to make known to Franklin the true state of the title when Franklin began
making improvements on the lot.”

Id. As a

result, this Court affirmed the chancellor’s
cancellation of “Martin’s claim of title on the ground that Martin was estopped to assert his
legal title.”

Id. ¶71. It

was clear to Haas where the Elchoses thought their property was, since, at their
direction, King had staked it out and laid the foundation. He knew where the actual property
line was, since Fournet had marked the respective parcels according to instructions from
Kevin Haas. The Haases’ assertion that Kevin Haas was unaware that the Elchoses were
building on his land simply is belied by the record: Kevin Haas directed Fournet to place the
property lines in the manner which appeared on the survey. Even though he may not have
known that the Elchoses were building, in part, on his land, and he could have believed that
the lot upon which they built was the lot he had sold them, Haas had a duty to make known
to the Elchoses his claim of title when the Elchoses began making significant improvements,
as in Martin. Justice Coleman is correct that the landowner is charged with knowledge of his
rights where he has “sufficient notice or means of knowledge.” Bright v. Michel,

137 So. 2d

155, 159 (Miss. 1962). Here, the evidence plainly demonstrates that the Haases should have
36
known that the Elchoses were building their house on a piece of property, part of which was,
in fact, owned by the Haases. The Haases, therefore, were estopped from claiming trespass.
¶72.   Because the record before this Court demonstrates that the doctrines of estoppel and
laches operated to bar the Haases’ claim of trespass against the Elchoses, I would hold that
the chancellor abused his discretion in not so finding.
3.     The chancery court erred in awarding attorney’s fees to the
Haases.
¶73.   Both parties requested attorney’s fees at trial. The chancellor entered judgment in
favor of the Haases for attorney’s fees amounting to $15,928.75. The Elchoses assert on
appeal that “Haas was awarded attorney’s fees and costs as a result of the very Covenants he
provided to Elchos” and that the chancellor erred as a matter of law in granting the award.
The Haases claim that the award was warranted, since the Elchoses were guilty of “gross
negligence” and they violated the protective covenants in the deed.
¶74.   “[T]he matter of determining attorney’s fees . . . is largely entrusted to the discretion
of the chancellor.” A.M.L. v. J.W.L.,

98 So. 3d 1001

, 1022 (Miss. 2012) (quoting O’Neill
v. O’Neill,

501 So. 2d 1117

, 1119 (Miss. 1987)). “The standard of review regarding
attorneys’ fees is the abuse of discretion standard, and such awards must be supported by
credible evidence.” Bailey v. Estate of Kemp,

, 787 (Miss. 2007) (quoting
Miss. Power & Light Co. v. Cook,

832 So. 2d 474

, 486 (Miss. 2002)).
¶75.   Because I would reverse the chancellor’s decision and remand for a reformation of
the deed, I would vacate the chancellor’s award of attorney’s fees and costs to the Haases.
WALLER, C.J., AND KING, J., JOIN THIS OPINION.
37
COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶76.   I agree with the excellent plurality opinion in all respects save one. In my opinion,
the chancellor considered the issue of estoppel under an erroneous legal standard. The issue
is subject to a de novo review on appeal, and given the myriad factual issues that must be
considered, the case should be remanded for the chancellor to reconsider the issue under the
proper legal standard.
¶77.   The chancellor addressed estoppel in his bench ruling holding that the doctrine of
estoppel does not bar the Hasses’ claim solely under Turner v. Morris,

(1944).
The chancellor stated:
In looking at the language of the case of Turner versus Morris,

,
the very last paragraph states – and there was an estoppel issue raised in that
case -- “No estoppel appears therefrom even if knowledge by the appellant or
conveyer of the encroachment without objection by him thereto would estop
him from now complaining, in the light of the fact that the appellees or the
buyers must be charged with knowledge that their deed gave them no right to
encroach on the appellant’s land.”
I write because I am of the opinion that the statement of law from Turner upon which the
chancellor relied constitutes an erroneous legal standard. The strict reliance of the Turner
Court upon the imputed knowledge of the deed in refusing to consider estoppel improperly
changed the focus of future courts’ attention from the person against whom estoppel would
operate, and it placed a heavier burden – inconsistent with other pronouncements on the
subject of equitable estoppel – on the party in whose favor estoppel would operate.
¶78.   The Turner Court determined that the evidence presented at trial “[fell] short of proof
that [Turner] realized from what he saw when he was at or passing this building that it was
38
being constructed so as to encroach on his land.”

The Court then held that,
although it had just stated Turner was not on notice, it need not express an opinion on
whether Turner was on notice because the Morrises must be charged with “knowing that their
deed gave them no right to encroach on the appellant’s land[.]”