Tacking Adverse Possession

June 4, 2015 § 3 Comments

The case of Rester and Davis v. Greenleaf Resources, Inc., handed down by the COA April 7, 2015, is instructive for an aspect of adverse possession that can be overlooked.

In that case, the chancellor had ruled that Sylvia Rester and L.B. Davis had failed to meet their burden to prove the elements of adverse possession of some 19.5 acres of land by clear and convincing evidence. The COA held that the chancellor did correctly apply the law to the facts of the case, but erred by considering only the period of time when the property was owned by Greenleaf. The COA opinion, by Judge Irving, states:

 ¶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 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.

This holding is dictated by MCA 15-1-13(1), which sets out the period of adverse possession, and reads, 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 …

In other words: (A) any person or persons in the preceding chain of title who achieved adverse possession passes good title to the subsequent title holders; and (B) where there is privity between a party and his predecessor in title, the party is entitled to “tack” his possession to his predecessor’s so as to have ten years’ possession, despite the fact that the party has not himself been in possession ten years. Ricketts v. Simmons, 44 So.2d 537, 538 (Miss. 1950). Either situation requires the court to look at the facts of the predecessors in title, which means that it is incumbent on counsel to develop that proof at trial as was done in the trial of the Rester case. If you don’t put it in the record, the court can not consider it, and you can not prevail on appeal.

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§ 3 Responses to Tacking Adverse Possession


    under B) above, would privity fail where the new claimant is claiming through a Trustee’s deed at a foreclosure and not through the person who was in AP for 10 yrs. New claimant is trying to tack previous AP party’s time through a foreclosure of a DT placed upon the property by the first AP party. It would seem that the privity must be a voluntary conveyance from the actual person possessing the property for the required time.

    • Larry says:

      Interesting question. I’m not aware of any cases on point. The term “privity” seems to imply a voluntary conveyance between the two parties, but I’m not aware of any cases that say so. I would look at the cases that define privity.

      • RICHARD M LINGLE says:

        I agree privity seems to be the key. You know you are in unchartered waters when you are referring to the definition found in Black’s. Thanks

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