How You Can Lose (or Gain) Land by Adverse Possession

How You Can Lose (or Gain) Land by Adverse Possession

Over the years, we have counseled many clients who owned portions of “family land” that adjoined lands owned by other family members or neighbors.  In many cases, the formal boundaries are not readily apparent (without a survey), and some descriptions refer to landmarks like fence lines, big oak trees, and creeks.  Such boundaries may change over time by natural forces.  Also, adjoining property owners may not get along well.  While the adage says “Good fences make good neighbors,” you should be sure you know exactly where the fence should be.  A recent Mississippi court decision set forth the law of “adverse possession” and how one can lose land to another by the use and lapse of time.  Anderson V. Fisher, No. 2018-CA-00707-COA (https://courts.ms.gov/Images/Opinions/CO140646.pdf)

Facts:  Bobby Anderson owned tracts of land known as Lots 29 and 30.  His property was bordered on the south by Lots 1 and 2, which were owned by Jerry, Edsel, Woodley, and Raymond Fisher.  Anderson filed a suit in which he claimed that, based on a survey completed when he purchased the property, the Fishers were illegally using the land (part of his Lots 29 and 30) for their own use.  In response, the Fishers claimed that they owned the property based on their own survey.  The Fishers also counterclaimed that they owned the property by adverse possession.  The chancellor found that the Fishers were able to prove by clear and convincing evidence that they owned the land through adverse possession, and Anderson appealed.

Analysis:  In order to perfect title by adverse possession, a claimant must prove by clear and convincing evidence that his possession of the property was under the claim of ownership; that his use was actual or hostile as against the title owner; open, notorious, and visible use compatible with a claim of ownership; continuous and uninterrupted for a period of ten years; exclusive; and peaceful.  The chancellor took into consideration that the Fishers had leased the disputed tract of land to someone for hunting beginning in the 1980s.  The Fishers identified their land (including the disputed part) by using flags or ribbons.  This, the chancellor found, was indicative of ownership.  At trial, the chancellor heard testimony that the land was farmed by the Fisher family in the 1950s and the 1960s.  The land was also leased out as hunting land for the last thirty-three years.  

The chancellor relied on Edsel’s testimony that, based on the belief that his property line was more north, he began to flag the line about ten to fifteen years prior to Anderson’s claim.  The chancellor found that this satisfied the element of hostile possession. The Fishers’ brief indicates that Anderson does not live on the property or even in the county, but Anderson could have easily discovered the flags or the visible deer stands that were installed for hunting by merely walking his property and observing its state.  The chancellor found significant evidence to conclude the adverse possession was open, notorious, and visible.  The record is silent as to any owner other than the Fishers who used the disputed land from the 1950s until 2003.   Testimony at trial indicated that there had never been a claim over the disputed tract of land until Anderson filed his claim in 2013. There is no indication from the record that the possession and use of the property was anything but peaceful.  Thus, the evidence presented at trial indicates that the Fishers proved by clear and convincing evidence each of the elements required to prove title through adverse possession.

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