Adverse Possession Nuggets

November 14, 2016 § Leave a comment

If you’ve been a long-time reader, you will recognize that I tend to really like cases that elucidate what must be shown to make an adverse possession case. That’s because, for all the colorful language of the case law about “planting flags” and “unfurling banners,” it can be confoundedly difficult to translate that into what people do in real life.

The recent COA decision in Powell v. Meyer, handed down October 25, 2016, is one of those helpful cases. The facts are pretty typical of an adverse possession case. You can read them for yourself. I’ve extracted some nuggets for you that you might find useful next time you have a case like this.

  • ¶18. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) defines adverse
    possession as follows:

    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 complete title . . . .

    We apply a six-part test for determining whether adverse possession has occurred: “for 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.” Walker [v. Murphree], 722 So. 2d [1277] at 1281 (¶16). The burden was on Meyer to prove each element by clear and convincing evidence. Ellison v. Meek, 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002).

  • ¶19. … In regard to the actual or hostile element, “[t]he 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 v. Johnson, 27 So. 3d 426, 431 (¶23) (Miss. Ct. App. 2009). Possession is hostile 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. Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952). … “[T]he mere existence of a fence,” without more, “does not establish that the fence is the
    accepted boundary between the properties.” Ellison, 820 So. 2d at 735 (¶16). …
  • ¶20. In regard to the open, notorious, and visible element, “[t]he 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. …

 

 

  • ¶21. … To reiterate, even if a party is mistaken as to the calls of his deed, “if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession[.]” Alexander [v. Hyland], 214 Miss. [348] at 357, 58 So. 2d [826] at 829 [(19520]. …

You might want to file those away for future use.

Here the chancellor was affirmed because there was clear and convincing evidence to support each and every one of the six required elements. That’s good lawyering. Not only do you have to have the facts to work with; you also have to make sure that you make a good enough record with sufficient facts to support the judge’s findings.

 

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