JUDGE CARLTON’S PRIMER ON ADVERSE POSSESSION

March 28, 2012 § 1 Comment

To establish adverse possession requires proof by clear and convincing evidence of some rather elusive concepts established by the courts to interpret and apply MCA § 15-1-13. That’s why, whenever I find an exposition on the applicable law, I’m quick to share it so that you can use it.

The most recent useful primer on the subject is Judge Carlton’s opinion in the COA case of Greenwood v. Young, decided February 7, 2012. I’ve stripped out the law to provide you with a skinny you may want to add to your trial notebooks:

¶19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in 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, 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.

In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or 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. Pulliam v. Bowen, 54 So. 3d, 331,  334 (¶13) (citations omitted).

The factors:

Claim of Ownership. ¶21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citations omitted).

Actual or Hostile. ¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So. 3d at 431-32 (¶23).

Open, Notorious, and Visible. ¶26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Id.

Continuous and Uninterrupted for Ten Years.

Exclusive. ¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So. 3d at 432 (¶27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’” Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 (¶25) (Miss. Ct. App. 2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id.

Peaceful. ¶30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶17) (Miss. Ct. App. 2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So. 3d at 432 (¶29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id.

Clear and Convinving Evidence. The mere fact that there is contradictory evidence does not mean that the credible evidence is not clear and convincing. See, Stancil v. Farris, 60 So. 3d 817, 824 (¶14) (Miss. Ct. App. 2011) “If clear[-]and[-]convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear and convincing evidence could be proven. Such is clearly not the case.”

You should read the opinion carefully to see how the chancellor applied the law to the facs, and how the COA viewed the chancellor’s ruling. Your case may be distinguishable.

Another adverse possession post highlighting a COA ruling by Judge Roberts is here.

You can find an annotated checklist of adverse possession factors by following the link.

The latest COA case on adverse possession is Massey v. Lambert, decided March 27, 2012, in which the court upheld the chancellor’s ruling that the use of the property had been permissive, which defeats a claim of adverse possession.

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