Sylvia Davis Rester v. Greenleaf Resources, Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CA-00400-COA

SYLVIA DAVIS RESTER AND L.B. DAVIS APPELLANTS

v.

GREENLEAF RESOURCES, INC. APPELLEE

DATE OF JUDGMENT: 02/03/2014
TRIAL JUDGE: HON. DAWN H. BEAM
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANTS: JACK PARSONS
TADD PARSONS
DAWN SMITH
ATTORNEY FOR APPELLEE: MORAN M. POPE III
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: REMOVED CLOUD FROM
APPELLEE/DEFENDANT’S TITLE AND
HELD THAT APPELLANTS/PLAINTIFFS
FAILED TO ESTABLISH OWNERSHIP BY
ADVERSE POSSESSION OF DISPUTED
PROPERTY
DISPOSITION: REVERSED AND REMANDED – 04/07/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.

IRVING, P.J., FOR THE COURT:

¶1. Plaintiffs Sylvia Davis Rester and L.B. Davis appeal from the Pearl River County

Chancery Court’s judgment where, after a bench trial, the trial court found that Sylvia and

L.B. did not acquire title to 19.6 acres by adverse possession and, further, removed all clouds

and quieted and confirmed title in favor of Defendant Greenleaf Resource Inc. (Greenleaf).
¶2. Finding error, we reverse and remand.

FACTS

¶3. On January 16, 2004, L.O. Crosby III conveyed, by warranty deed, a total of 297.61

acres of land located in Pearl River County, Mississippi, to Greenleaf. Greenleaf recorded

the deed from Crosby in the Pearl River County Chancery Clerk’s office on January 20,

2004. Included in the 297.61 acres is the 19.6-acre tract that is the subject of this suit

(disputed property). On November 9, 2012, siblings Sylvia and L.B. filed a complaint1

alleging adverse possession of the 19.6 acres situated in the northwest quarter of the

northeast quarter of the northeast quarter of northwest quarter of Section 2, Township 4

South, Range 14 West, Pearl River County, Mississippi, claiming that they, through tacking

onto the claim of their father, Robert Davis, have owned of the 19.60-acre tract since 1919,

when Robert acquired title to five acres of land located adjacent to the disputed property.

Greenleaf filed a counter-complaint to remove cloud and to quiet and confirm title to its

entire land, which it argued included the disputed property.

¶4. At trial, Herbert Gentry, a land manager for the Crosby property who served as a

forester for the St. Regis Paper Company2 from 1960 to 1982, testified that the general public

referred to the disputed land as the “Rob Davis property.” Herbert explained that, as a

forester, he was given a squatters list at the beginning of every year from the “surveyors and

1
This is actually the second case filed by Sylvia and L.B. In 2007, they filed an
identical complaint against Greenleaf, but it had been dismissed for lack of prosecution.
2
St. Regis had a timber purchase agreement with the Crosbys.

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[Crosby’s] land people,” and he had been told not to touch lands that were listed. In addition,

Herbert testified that every year he reported to the land owners the status of “all the adverse

possession lands under [his] management.” According to Herbert, the list included the

disputed property. Herbert recalled that Robert kept the property fenced in and maintained

the fence. He also recalled that a member of Robert’s family cut timber and cleared the area

after Hurricane Camille in August 1969, and the Crosbys did not object. He testified that he

knew the squatters were serious about not having their land touched and, “[t]hey meant

business. They meant stop at the fence.” He did not recall anyone else claiming possession

of this property during his tenure as a manager, nor did he recall being told to remove the

Davises from the disputed property. Herbert also testified that he knew that the Crosbys

owned the entire 70,000 acres of land he managed, and that they paid the taxes.

¶5. James Myrick, a friend of the Davis family, testified that he had been familiar with

the property since 1973. James testified that he visited the Davis family on the disputed

property “hundreds” of times to swim, fish, and camp. He stated that his brother-in-law

helped Sylvia’s son, Donald Odom, repair barbed wire in places where the fence was “totally

down” in the “late ‘80s, early ‘90s.” James stated that he received permission from Sylvia

on several occasions to take his son camping and fishing on the property, and no one ever

asked him to leave the property when he was there. James testified that he believed that

“Sylvia and her family” had control over the property, and that the disputed property is

known as the “the Davis family” property in the community. James described how he saw

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Herbert paint an orange line “on the outer property.” He further stated that “the Crosby’s

business didn’t do anything with [Davis family property]. They did [business] on the other

side of its painted lines.” During his cross-examination testimony, James was unsure

whether the “swimming hole” where he used to swim and fish was located on the disputed

property. James stated that he believed Sylvia’s family had possession of the disputed

property because there were houses on the property and Sylvia’s family maintained the

cemetery. James testified that he did not know that the Davises had title to the five acres

adjacent to this disputed property where the cemetery was located.

¶6. Arnold Smith testified that he worked for thirty years, and is now retired from his

timber business in Poplarville, Mississippi. He stated that he knew the Davis family well

because his mother and Sylvia’s mother were sisters. He testified that he was familiar with

the disputed property. Arnold also testified that he visited the property approximately a half

dozen times about twenty years ago. He recalled that Robert, his uncle, had possession of

the property at the time. He testified to seeing a corn field and a house on the land when

Robert owned it, but he did not recall any livestock. He testified that there may have been

a spring on the property. While Arnold initially testified that there was a house on the

property; however, during his cross-examination testimony, he said he was “not real sure”

whether the house was on the disputed portion of the property or not.

¶7. Lanell Odom, age seventy-nine, testified that on one occasion in the 1980s, Sylvia

requested that he cut timber off the property. Lanell testified that he paid Sylvia for the

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timber. He further testified that during that one occasion, no one ever told him that he could

not cut the timber off that land. Lanell stated that he used to go swimming and fishing at

Wolf Creek stream, which runs close to the property. Lanell lived in the same community,

which he called the Silver Run community, but moved away in the late 1980s. Lanell

confirmed that he had never heard of anyone else owning or having interest in the property

other than Sylvia and her family. Lanell opined that the Davises held themselves out as

owning the property since they “let [him] cut timber” on it. He also recalled the fence around

the property; however, he did not recall a house on the property. Lanell did not know

whether the trees he cut down were on the disputed 19.6 acres or the five acres that the Davis

family held the title to.

¶8. Hershel Ladner, age seventy-nine, testified that he was raised in the Silver Run

community, just down the street from the Davises. He testified that when he was four or

five, he visited the Davises often, and passed their house four or five times when he was

“penning sheep” with his uncle. Hershel stated that he was a “double second cousin to

Sylvia.” He recalled crops being grown on the property, a house where the Davises lived,

and a fence. Hershel stated that the last time he visited the property, which was for a funeral

about ten to fifteen years ago, he did not see the house, fence, or crops. He never recalled

anyone, other than the Davises, ever claiming that they owned the property at issue. He

opined that the Davis family had owned that property for at least seventy-five years.

¶9. L.B. testified that he was eighty-eight years old, and that he left the Pearl River area

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in 1955. He testified that he has a bachelor’s degree in agricultural education and a master’s

degree in etymology from Mississippi State University. L.B. stated that in 1926, he was born

in a log house that was located on the disputed portion of the property. L.B. further testified

that the family lived on the property for about four years after he was born, and then moved

away from the area for a few years. When they returned to the Silver Run community, they

lived in their grandparents’ house, which was located near the disputed property. He recalled

that the family rented out their house for three or four years. The house was eventually torn

down, according to L.B., by Sylvia and her first husband. L.B. also testified that his father

planted corn, sweet potatoes, and sugar cane on the disputed property. L.B. stated that the

area was fenced in, and he recalled helping his father re-fence the area in 1939 or 1940,

before L.B. left for World War II. L.B. testified that his father passed away in 1966. He

stated that no one else had claimed ownership of the disputed property until now. During

L.B.’s direct examination, Greenleaf objected to testimony about a promise made to Robert

by the Crosbys. Instead, L.B. proffered that Robert told him that Crosby was going to give

Robert the title to the 19.6 acres, but never did.

¶10. Sylvia testified that her father had possession of the property from1915 until he died.

According to Sylvia, after her father died, she and her brother took possession of the 19.6

acres. She confirmed that her father and brother built a fence. She testified that in 1990 she

replaced the fence, and has periodically paid people to repair the fence; however, she could

not provide any receipts. Sylvia stated that the five acres that she and L.B. have acquired

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actual title for is not included in the fenced-in area. She remembered growing watermelons,

sweet potatoes, and cucumbers on the disputed property. She testified that she had sold

timber from the disputed property twice. She stated that she has never lived on the property,

and that no one has lived on the property since World War II. She explained that her son and

husband have hunted on the property on occasion, and people used the land for other

recreational uses. Sylvia also testified that she never spoke with the Crosbys concerning the

disputed property.

¶11. Kent Robins testified he managed the Crosby property, and later the Greenleaf

property, from 1982 to 2007. He testified that he had no reason to believe that the disputed

property was not a part of the entire area of land he managed. Kent did not know about the

squatters list that Herbert testified to. Kent stated that no one told him that this disputed

property was not to be managed or touched because it was adversely possessed. Kent

admitted that he did not “walk the property,” but he explained that his “field” workers that

had walked the property would have told him if there was something that would indicate

someone else was using the land.

¶12. Edgar Vines, owner of Greenleaf, testified that the first time he found out about the

adverse-possession claim was when he visited his property in 2006, after Hurricane Katrina.

He testified that he saw a crew cutting timber on the disputed property. He saw a painted

property line all the way around the property, including the five acres the Davises had title

to. Edgar testified that he told one of the operators that the crew was on his property. Edgar

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testified that after confronting the crew, he spoke with John Gunther, the owner of the tree-

service company, and John explained to Edgar that he had received permission from Sylvia.

According to Edgar, after informing John that he had the deed to the land, the crew left.

Edgar also explained that he had a land survey completed, which did not find a continuous

fence, a house, or crops on the disputed property. Edgar testified that L.B. called about the

disputed portion of the property after the timber incident. Edgar asked L.B. if he had any

record of his ownership, and L.B. stated that he did not but that his family owned the land.

The following exhibits were admitted into evidence during trial: (1) a timber-cutting

statement from John Guthrie; (2) general discovery by Sylvia and L.B.; (3) the warranty deed

to Greenleaf; (4) a plat map; and (5) the land survey done for Greenleaf.

¶13. On February 3, 2014, the trial court held that L.B. and Sylvia “failed to meet their

burden of clear and convincing evidence as to more than one of the necessary elements of

adverse possession . . . ,” and that Greenleaf was entitled to immediate possession and

occupancy of the disputed property. The trial court denied all other relief; however, it did

not rule on Greenleaf’s counter-complaint, which asked the court to remove all clouds and

quiet title with respect to the entire 297.61 acres. Following the judgment, L.B. and Sylvia

filed a motion to reconsider, and Greenleaf filed a motion to amend and correct the previous

judgment. On March 27, 2014, the trial court denied the motion to reconsider, and granted

Greenleaf’s counter-complaint, and accordingly quieted and confirmed its title. This appeal

ensued.

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DISCUSSION

¶14. L.B. and Sylvia assert that the trial court erred in finding that they did not provide

sufficient proof to establish title to the property through adverse possession. Mississippi

Code Annotated section 15-1-13(1) (Rev. 2012) sets forth the requirements for a claim of

adverse possession:

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, saving to persons
under the disability of minority or unsoundness of mind the right to sue within
ten (10) years after the removal of such disability, as provided in Section
15-1-7. However, the saving in favor of persons under disability of
unsoundness of mind shall never extend longer than thirty-one (31) years.

¶15. This Court has further provided that “[f]or possession to be adverse it must be (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. See

Magee v. Garland, 799 So. 2d 154, 157 (¶9) (Miss. Ct. App. 2001) (citing Peagler v.

Measells, 743 So. 2d 389, 390 (¶7) (Miss. Ct. App. 1999)). “The burden of proof is on the

adverse possessor to show by clear and convincing evidence that each element is met.” Id.

“The question in the end is whether the possessory acts relied upon by the would[-]be

adverse possessor are sufficient to put the record title holder upon notice that the lands are

held under an adverse claim of ownership.” Id. “This Court will not disturb the factual

findings of the chancellor unless said factual findings are manifestly wrong or clearly

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erroneous.” Nelson v. Bonner, 13 So. 3d 880, 883 (¶4) (Miss. Ct. App. 2009) (citations

omitted).

¶16. After reviewing the record, we find that the trial court correctly considered the

elements of adverse possession; however, it erred because it only focused on the period of

time Greenleaf held title to the land. Specifically, the trial court erred when it held that

“Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out

that Greenleaf did not hold title to the land until 2004, when it purchased the land from the

Crosbys. Further inquiry is crucial in determining whether the Davis family adversely

possessed the disputed property at any point prior to Greenleaf’s purchase of the land.

¶17. There are several ten-year spans of time, an element of adverse possession, that need

to be considered, which the trial court’s findings are silent on. Such a span begins with

L.B.’s birth on the disputed property. There is testimony that the family maintained control

by renting out the log cabin in their absence for a period of time. In addition, there was

testimony that L.B. had worked on the fence in 1939. There is uncontradicted testimony

from Herbert, who managed the property for over twenty years, that the property was on a

squatters list, and that there were painted lines that were not crossed. In addition, he recalled

that there was a fence, and that crops had been planted on the disputed property. Herbert’s

testimony is corroborated by L.B.’s testimony. James also testified to seeing the painted

lines, which Herbert described and stated he did not cross in light of the fact that the land was

on the squatters list. Several other witnesses testified about crops being grown by the

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Davises on the disputed property and the Davises’ recreational use of the land.

¶18. We find that there was sufficient evidence produced to warrant further inquiry for the

period of time prior to Greenleaf’s purchase of the disputed land. If at any point, the Davises

had adversely possessed the property prior to Greenleaf’s purchase, it follows that the title

that Greenleaf received could not include the disputed property, notwithstanding the fact that

it may lie within the calls of its deed. To be clear, nothing in this opinion should be

interpreted as holding or finding that the evidence is sufficient or insufficient to show that

the Davises adversely possessed the property prior to the point in time when Greenleaf

purchased it. We simply hold that the trial court erred in limiting its focus to the period of

time after the date of Greenleaf’s purchase.

¶19. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER
COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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