Opinion
No. 38253.
June 9, 1952.
1. Adverse possession — fence line.
Where adjoining owners agreed on a line between their property and a fence was built accordingly and one of them and his successors occupied his side for more than ten years exclusively and without interruption, his title, bounded by the fence, ripened by adverse possession and became complete.
2. Adverse possession — quantum of proof.
It is not necessary to prove the elements of adverse possession beyond a reasonable doubt, and when contrary to the preponderance of the evidence the chancellor dismissed a bill to establish title by adverse possession on the erroneous theory that the proof in support thereof must be beyond a reasonable doubt, the decree will be reversed.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Amite County; R.W. CUTRER, Chancellor.
Roach Jones, for appellants.
T.F. Badon, and Gordon Gordon, for appellees.
The briefs in this case dealt elaborately and in detail with the facts as to whether the proof was sufficient to show that in 1938 the then owners had a survey made and placed the main boundary fence on the line of that survey and that the parties and their successors had occupied their respective lands in accordance therewith for ten years next following, the appellants arguing that the proof established the affirmative by a preponderance of the testimony, while the appellees argued to the contrary.
On the decisive point that the chancellor had erroneously ruled that the burden was on the appellants to make their proof beyond a reasonable doubt, the appellants said in their original brief:
"In its findings of the facts in this case, as shown on page 238 of the record the court held in reference to the 1938 fence built by Mr. Burnard McGehee and Mr. J.B. Nunnery that the burden was upon the appellants to prove beyond a reasonable doubt that the fence was built as an agreed line fence. The court was plainly in error in so holding as of course the appellants were only required to prove such fact by a preponderance of the evidence. This finding of the court shows that the court imposed a heavier duty upon them than they were legally required to bear, and if we are wrong in each and every other contention that we have in this case, we earnestly and respectfully contend that the appellants are entitled to a reversal and new trial on account of this erroneous holding on the part of the trial court".
To this appellees replied:
"It is of course obvious that the learned chancellor employed inaccurate nomenclature in stating to appellant's attorney that he had to prove his case beyond a reasonable doubt. However, such statement was merely a matter of form and would have been prejudicial error only when used in instructing a jury. Moreover, the record speaks for itself and the appellate Court on review can determine for itself whether or not appellants prove their case and meet the burden of proof by a preponderance of evidence".
To which appellants rejoined:
"The appellees state that the finding of the court below, as reflected on page 238 of the record, that the burden was upon the appellants to prove beyond a reasonable doubt that the fence built by Mr. McGehee and Mr. Nunnery in 1938 was an agreed line fence was simply inaccurate nomenclature employed by the chancellor. If the appellees were of this opinion as to the language used by the chancellor, we submit that it was their duty to bring this error to the attention of the court and not sit idly by and then attempt to assert a contention which is contrary to the plain and unequivocal language used by the chancellor. We could, like the appellees, go outside of the record and offer an explanation that would explain why the trial court made the statement in question. We submit, however, that the matter must be decided upon the record as written and the record shows beyond any doubt that the trial court was in error in its opinion as to the degrees of proof required to be presented by the appellants, and that it imposed a heavier duty upon the appellants than they were legally required to bear. The effect is the same as if the court had instructed itself erroneously upon the law applicable to the case. If the same error were contained in a written instruction in a court of law, the appellees admit the error would be reversible. We fail to see where there is any distinction whether the error is placed in the mind of the trier of the facts by his own erroneous impression of the law or as a result of the agency of some other party. The harm done to the party against whom the error is committed is the same. We therefore respectfully submit that the record shows plain and obvious error which clearly entitles the appellants to a reversal and new trial of this cause."
No authorities were cited by either party on the quoted arguments.
By appropriate pleadings and proof, the issue in this case was whether or not a certain fence was the established line between the W 1/2 of SW 1/4 of SW 1/4 and the E 1/2 of SW 1/4 of SW 1/4 of Section 19, Township 4 N, Range 5 E. The complainants, J.C. Bowlin et ux. maintained the affirmative, and the defendants Griff Dye et al., contended for the negative.
In 1938, Burnard McGehee owned the W 1/2 and Jewel Nunnery owned the E 1/2 of this 40 acres. As Nunnery wished to cut some timber the parties engaged the county surveyor, George Terrell, to run the line between them. This was done, and several days later a fence was built on that line. The expense of the survey and the fence was borne by both parties.
McGehee testified that it was a line fence. C.W. Bowlin testified that it was a line fence. Percy Sumrall, who helped to build it, testified that the parties agreed that it was a line fence. George Terrell, the surveyor, although called by the defendants as a witness, testified that it was his understanding that the parties were going to put a fence on the line which he ran. It was shown that McGehee and his tenants possessed and used the land up to the fence until he sold to J.C. Bowlin in 1942.
As against all of this evidence, Jewel Nunnery testified that Terrell's survey, at the time, appeared to be wrong, and that he and McGehee erected the fence without any definite understanding. He admitted that he liked to have his fences on the line, and that he did not use the land west of the fence for any purpose thereafter. He subsequently sold his 20 acres, with other lands, to Griff Dye on December 27, 1940.
A short time after his purchase, Dye started to build another fence farther to the west, but McGehee stopped him. J.C. Bowlin, after he purchased from McGehee in 1942, continued the use and occupation of the land west of the fence. In 1947, although Dye again started to build the fence which he originally commenced, Bowlin objected and he did not finish it. Finally in 1949, he completed the fence and took over possession. That act brought this suit. Dye however testified that he completed the fence in 1947, and took possession of the land to the east of it.
The court dismissed the bill and the complainants have appealed here.
(Hn 1) The great weight of the evidence supports the conclusion that McGehee and Nunnery put the fence on the line which both of them recognized, and that McGehee and his successors in title remained in possession more than ten years thereafter. In such event, the following cases are decisive: Louis Cohn Bros. v. Peyton, 145 Miss. 261, 110 So. 509; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; Kornegay v. Montgomery, 194 Miss. 274, 12 So.2d 423.
However, the learned chancellor, in his opinion at the conclusion of the evidence, erroneously held that the complainants had the burden of proving beyond a reasonable doubt that the fence was built on an agreed line. In Daniels v. Bush, 211 Miss. 1, 50 So.2d 563, it was recognized that, under Rule 11, this Court will not reverse a chancellor for misdirection to himself, where he reached the right result and no harm resulted. (Hn 2) But in view of the great weight of the evidence, it is obvious that the trial court was not governed simply by the preponderance of the evidence, but that it placed upon the complainants a heavier burden than the law required.
The cause is, therefore, reversed and remanded for a new trial.
Reversed and remanded.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.
ON SUGGESTION OF ERROR July 17, 1952 (59 So.2d 843)
Two suggestions of error have been filed in this cause, one by the appellants and the other by the appellees. Both suggestions of error have been given careful consideration by the Court and in our opinion should be everruled. The appellants, however, in their suggestion of error, have directed the Court's attention to the fact that the Court, in its opinion rendered on June 9, 1952, failed to mention specifically that part of the controversy which related to the location of the fence on the boundary line between the 20-acre tract of land owned by the appellants and the tract of land lying immediately north of said 20-acre tract owned by the appellees, Homer Fenn and his wife, Willie Fenn. This response is therefore made to that part of the appellants' suggestion of error which relates to the controversy between the appellants and the appellees, Fenn.
The above-mentioned fence, according to the record, was erected in 1941. The appellants alleged in their bill of complaint that the fence was not located on the line between the appellants' 20-acre tract and the land owned by Homer Fenn and his wife lying immediately north of the 20-acre tract, but was located some distance south of the true boundary line; and the appellants in their bill asked that the true boundary line be established by a proper survey and that the appellees, Fenn, be enjoined from trespassing upon the appellants' 20 acre tract. A surveyor was appointed by the court to make a survey of the boundary line; and the plat filed by the surveyor showed that the fence was located on the appellants' 20-acre tract and that the west end of the fence was approximately 31 feet south of the north boundary line of the 20-acre tract. According to the plat filed by the surveyor the fence appeared to extend westwardly beyond the northwest corner of the 20-acre tract approximately 35 feet on to an adjoining parcel of land in Section 24, Township 4 North, Range 4 East, which was likewise owned by the appellants. At the conclusion of the oral testimony the appellants asked permission to amend their pleadings so as to show a proper deraignment of their title to that portion of their land located in Section 24 to make the pleadings conform to the proof. The court overruled the appellants' motion to amend.
The surveyor was cross-examined concerning the distance shown in the government field notes which had been used by him in locating the range line between Range 4 East and Range 5 East; and it appeared from the testimony that an error had probably been made in the location of the northwest corner of the 20-acre tract. But, notwithstanding the fact that such error had been made by the surveyor, it appears from the testimony that the fence referred to above was not located on the true boundary line; and the chancellor erred in dismissing the bill of complaint. Upon a rehearing of the matter the court may find it is necessary to have the surveyor run the line again, so that the true line may be properly determined. If it should appear that a part of the fence is located on the land owned by the appellants in Section 24, the appellants should be permitted to amend their pleadings so as to make them conform to the facts disclosed by the survey.
The suggestions of error are hereby overruled.
All Justices concur.