Adverse Possession Refresher

July 24, 2013 § 6 Comments

The COA decision in Roberts v. Young’s Creek Investments, Inc., decided July 16, 2013, is yet another decision in the field of adverse possession that you should file away for future use the next time that you find yourself litigating that issue in chancery court.

All adverse possession cases are fact-driven, and this particular case is no exception. But it’s not the facts we’re interested in here. It’s the law. Here are some excerpts from the opinion that flesh out the legal requirements:

  • ¶7  “[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.” Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152-53 (Miss. 1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So. 3d 1134, 1137 (¶6) (Miss. Ct. App. 2012) (citing Buford v. Logue, 832 So. 2d 594, 600 (¶14) (Miss. Ct. App. 2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So. 2d at 136 (¶16).
  • Claim of Ownership. ¶8.  Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007) (citing Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998)). The Mississippi Supreme Court has stated:

    When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.

    Id. at (¶8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.

  • Hostile. ¶10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So. 2d 817, 819-20 (Miss. 1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So. 2d 983-94 (¶34) (Miss. Ct. App. 994 (¶34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So. 2d at 1118 (¶12).
  • Open, Notorious, and Visible. ¶13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”Wicker, 937 So. 2d at 994 (¶35) (quoting Blankinship, 605 So. 2d at 820).
  • Continuous and Uninterrupted for a Period of Ten Years. ¶14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years.See Miss. Code Ann. § 15-1-13(1) (Rev. 2012). This period of possession must be continuous and uninterrupted. Id.
  • Exclusive.  ¶15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.”Wicker, 937 So. 2d at 995 (¶40) (quoting Rawls v. Parker, 602 So. 2d 1164, 1169 (Miss. 1992)) (internal quotations omitted). It does not mean that no one else can use the property.Apperson, 950 So. 2d at 1119 (¶15). “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.”Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).
  • Peaceful. ¶16. … Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So. 2d 1004, 1009 (¶15) (Miss. 2001).
  • Permissive Use. ¶17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So. 3d 846, 849 (¶11) (Miss. Ct. App. 2012).
  • Color of Title. ¶18. … “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug. 1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.”Id. at 474. … The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property.

A checklist for the elements adverse possession is here.

A COA decision by Judge Carlton analyzing adverse possession elements is here.

A COA decision by Judge Roberts discussing some of the adverse possession factors is here.

I was glad to see Judge Irving, for the COA, point out that color of title is not one of the elements of adverse possession. I hear it mentioned in nearly every adverse possession case I hear, and sometimes the contortions people go through to squeeze the facts into that element can be interesting to watch. Color of title may enter into the conversation when there is a defect in the deed conveying title that gives rise to the dispute, but it’s not one of the elements that the court must consider in every adverse possession case.

I don’t know about you, but when I practiced, I could not amass enough cases to help me understand those arcane phrases about unfurling flags and keeping them flying, and that an “enemy has invaded his domains,” and the planting of a standard of conquest, to make me feel comfortable. Every time I encountered an adverse possession case I had images of cavalry charges, bloody banners falling in the clash of arms, and castles stormed by medieval knights.

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§ 6 Responses to Adverse Possession Refresher

  • randywallace says:

    Farmers I have met (most of which were in the Delta) keep track of their land to the tenth of an acre due to farm subsidies. More disputes about placement of a deer stand, duck blind or timber overcuts than who owns part of a bean field.

    • Bob Wolford says:

      Randy you bring up an interesting point on the timber overcuts- isn’t there a statute on the books that provides for treble damages (based on the value of the timber) for such “timber trespass”?

      • Larry says:

        Yes. I don’t have time to look it up now, but there is a statute.

      • randywallace says:

        If I remember correctly, there once was a statutory penalty for treble damages if the removal of trees was willful or in reckless disregard for the rights of the timber owner, but the current version of the statute provides the exclusive remedy of double the fair market value of the timber plus cost of reforestation up to a statutory limit. 95-5-10 also allows attorneys’ fees and expert witness fees to be awarded as costs at the discretion of the court.

        For willful violations there is an additional statutory penalty that varies depending on the size and number trees

        When it is all said and done, even relatively small timber overcuts can be extremely expensive if the plaintiff prevails in proving that the timber removal was willful. Another problem with the cases from a defense perspective is that a logger’s CGL policy typically has reduced benefits for timber trespass (commonly $25-50k).

  • Bob Wolford says:

    Judge- seems like adverse possession would be a huge issue up in the Mississippi delta where you have massive amounts of farmland abutting each other. Not real practicable to erect an 8 foot fence around 100 acres of cotton fields.

    • Larry says:

      Yes, but farmers tend to keep track of what’s going on with their property. This particular case was in the Delta, but it was “wild land.”

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