Satterfield, Ewing Hedgepeth, and Roach Jones, for appellant.
There is, of course, no need of discussing the nature of the adverse possession required under Sec. 717, Code 1942, which has been clearly and finally determined by this court as being the same type and character of possession required to divest the owner of title without a tax sale intervening under the general ten year statute.
Under the statement of the facts in this case above the acts of possession are fully outlined.
The principles of law involved in this case are identical with those recognized by this court in the case of Cook, et al v. Mason, et al, 160 Miss. 811 , 134 So. 139 .
The above recent case is simply the re-application of the rule which was recognized very early in Mississippi jurisprudence in the case of Louisville and N.R. Co. v. Gulf of Mexico Land Imp. Co., 82 Miss. 180 , 33 So. 845.
It will be noted that according to the testimony of Mr. Anderson and the other witnesses, whose testimony is totally undisputed, that the fencing of the community pasture, enclosing from four to five hundred acres, was done by the neighbors with the permission and consent of W.M. Webb and many years prior to the issuance of the patent which was issued in the year 1941. The use of the entire community pasture continued up to the time of the filing of the suit just as it had been for the preceding ten or fifteen years, and all acts of the defendant were consistent with and in aid of such community use. The lands here were not fenced by this party nor did he exercise any acts of possession other than the cutting of timber which extended for only some period of approximately six weeks. Payment of taxes is simply an element for consideration and is not sufficient to constitute adverse possession.
See Thompson on Real Property, Vol. 5, pages 455, 456 and 457, as follows, to-wit: "Sec. 2646 (2521). Exclusive possession. — Exclusive possession on the part of the disseisor is generally considered a necessary element of title by adverse possession. A possession not exclusive, but in participation with the owner or others, falls afar short of that kind of adverse possession which deprives the true owner of his title. Adverse possession does not rest on oral claims, but on acts which evince a purpose to exercise exclusive dominion over the property. It is necessary that the adverse claimant hold possession of the land for himself, as his own, and not for another. Two
or more persons can not hold one tract of land adversely to each other at the same time. It is essential that the possession of one who claims adversely must be of such an exclusive character that it will operate as an ouster of the owner of the legal title, since, in the absence of ouster, the legal title draws to itself the constructive possession of the land."
That these holdings are in accord with the great majority of the courts of the United States is demonstrated by the annotation in 170 A.L.R. 845. See also the annotation in 2 A.L.R. 1368 and 1369. An illustrative case of this line of authorities is that of Parks v. Pennsylvania R. Co., 152 A. 682 , 301 Pa. 475 . See also the case of Hamilton v. Flournoy, 74 P. 483.
The burden of proof is upon the defendants. This is the universal rule and has been repeatedly followed by our courts. Cohn v. Pearl River Lumber Company, 80 Miss. 649 , 32 So. 292; Dedeaux v. Bayou Deslisle Lumber Company, 112 Miss. 325 , 73 So. 53; Lovejoy v. McKibben, 113 Miss. 369 , 74 So. 281; Delk v. Hubbard, 153 Miss. 869 , 121 So. 845 ; Neal v. Newburger Co., 154 Miss. 691 , 123 So. 861 ; Bullock v. Greer, 181 Miss. 190 , 179 So. 264 ; Elmer v. Holmes, 189 Miss. 785 , 199 So. 84 ; Smith v. Myrick, 29 So.2d 924 , and in the latter case the court said, in construing the very statute relied upon by the defendants: "If one is to be deprived of his property by adverse possession exercised for only two years, the proof, not only of the nature of the acts but the time within which they begin, should be shown by evidence which is definite, specific, clear and positive."
Defendants argue that in the spring of 1941, after the Moseleys received such patents, they contracted with Lonnie Wilson to cut the timber and deliver it to Gloster Lumber Company, and that this he did, his operations consuming about ninety days in the spring and early summer of 1941. They say that this was sufficient under the case of McCaughn v. Young, 85 Miss. 277 , 37 So. 839. But that case is easily distinguishable from the case at
bar, as a reading of it will readily disclose, for in that case the timber operations continued over the full statutory period and, furthermore, the land was swamp land, utterly incapable of any use except that of growing timber; while in the case at bar Wilson consumed not more than ninety days, as the defendants so say in their brief, and the land was not swamp land incapable of any use except that of growing timber. In fact, a similar argument as that made by the defendants was answered by our Supreme Court in A.W. Stevens Lumber Company v. Hughes, 38 So. 769, a Mississippi case not reported in the state reports, in which the court held that the cutting of rails, boards, and some pine or light wood, and the posting of such land against trespassers, were insufficient to establish adverse possession, the court saying: "The instant case is readily distinguishable from McCaughn v. Young, 37 So. 841, 842, for many reasons. In that case the lands were not only wild or timbered land, but they were swamp lands, not susceptible of any occupancy, improvement or cultivation, or of any remunerative or productive use. . . ."
In fact, the Stevens case was much stronger than is the case for the defendants for the further reason that the acts relied upon by those claiming by adverse possession had been carried on for a period longer than the statutory period of adverse possession of ten years, while the defendants in the case at bar are asserting a period of timber operations of only ninety days.
The defendants try to strengthen their untenable position by saying that the land involved in this suit was not capable of any use except that of growing timber. But the fallacy of this argument is at once demonstrated by the undisputed testimony of all the witnesses that such land has been used for more than twenty years as a part of the community pasture upon which large herds of cattle grazed; that it is no different from surrounding lands all of which are either farmed or pastured; that in fact it was always farmed until the storm blew the house
and barns away, and that if the road leading out to the highway a quarter of a mile away was improved this land would now be ideal for farming purposes, and by the additional testimony of the defendant Anderson in trying to establish additional elements of possession, that he had himself utilized a gap in the fence and let some of his own cattle from land adjoining the land in this suit to the South and West, which he had acquired from another source, run upon it and had permitted a Negro, Irk Reed, to cultivate a portion of it.
As a matter of fact, it was not shown that Reed cultivated any of such land, unless some five or six acres outside the fence on the west side was in fact a part of this land, as was attempted to be shown, and if this be true, the evidence showed that Reed and his predecessors had been cultivating such five or six acres for at least twenty years and thus had title thereto by adverse possession, which could not under any theory of law aid such defendant in his contention or inure to his benefit, but only to the benefit of the said Irk Reed, and whether or not Irk Reed had title to such five or six acres would be a question to arise solely between him and the compainants, and not between the complainants and the defendants.
The defendant seems to think that because Irk Reed was found in possession, and to have been in possession for some twenty years, of such five or six acres, when the defendant purchases the lands adjoining the land involved in this suit, to the south and west thereof, and Irk Reed, as the defendant says, remained in possession with the defendant's permission, and said five or six acres was according to the defendant a part of the land involved in this suit, which the complainants deny, this operated as constructive possession by the defendant, through Irk Reed, of the land patented from the State. If the court should find Irk Reed's possession to be that of the defendant, although we can conceive of no such conclusion being reached, it is submitted that Irk Reed already had title to said five or six acres by adverse possession,
and therefore neither he, nor the defendant by virtue of his alleged attornment, was in possession under the tax patents, and hence such possession was not constructive as to the other land described in the patents. As said by the court in Leavenworth v. Reeves, 106 Miss. 722 , 64 So. 660, "if the title was void as to part of the land conveyed, the occupation of that part to which the grantee had title will not give the grantee possession of the other part to which he had no title, so as to disseise the real owner." Also see Jones v. Gaddis, 67 Miss. 769 , 7 So. 489; Mitchell v. Bond, 84 Miss. 72 , 36 So. 148.
And while the testimony of the defendant Anderson to the effect that his cattle from adjoining lands had at times gone through a fence gap onto the land involved in this suit is not corroborated by other witnesses, yet if it be true, then such defendant was pasturing not exclusively but with the other parties who had been pasturing for some twenty years. And such other parties testified that they were not pasturing with Anderson's permission, and had never sought it, as they considered Webb to be the owner and were pasturing, some with Webb's permission, and all under a community agreement to which Webb had agreed. "Three of the elements of possession necessary in order that it may be adverse are that it must be actual, hostile, and exclusive." Leavenworth v. Reeves, supra.
The defendants further say that Webb had abandoned the land. This he denied, but so assuming, our Supreme Court has held that in Mississippi abandonment is not effective to divest title to realty, this being said in Neverkort v. Warrington, 19 So.2d 433, a case in which a tax title holder asserted that the former owner had abandoned the premises after the tax sale involved in that suit. This opinion was subsequently withdrawn, 22 So.2d 708, the parties having compromised while suggestion of error was pending, but there is every reason to believe that the court would declare anew the same principle in another case. But this is immaterial for the
reason that, as pointed out in the beginning of this brief, the court has repeatedly held that the tax title holder must be able to esablish at least two years' adverse possession to deprive the former owner of his property.
The defendants further say that Webb knew they claimed the land and decided to do nothing about it. This is disputed by Webb, and his testimony, undisputed by the defendants, is that they asked him for a quitclaim deed, which he refused to execute, stating to them that the land was his. Webb further testified, and such testimony is undisputed, that the reason that he did not file suit immediately after learning that the defendants were claiming his land was that he became seriously ill and remained so for a period of more than a year, being in the hospital for much of such time. And as a matter of law, he could, as he did, bring his suit at any time he chose, so long as the defendants had no title by two years' adverse possession.
The defendants say that since 1941 they have paid the taxes and executed deeds of trust on said land. This cannot help out a defective possession. Leavenworth v. Reeves, supra; Daniels v. Jordan, 161 Miss. 78 , 134 So. 903 .
Hereinbefore has been discussed the question of whether or not the defendants, through Irk Reed, had title by adverse possession to five or six acres of this land. Assuming this to be true, their ownership by such adverse possession would be limited to such five or six acres, in view of the continued possession of Webb, personally by growing timber, and through his licensees who were grazing cattle thereupon, of the remainder of such land. Where title to land is in conflict, and each claimant is in possession of the part of the tract in controversy, the one having the better title has, by his occupation, constructive possession of the whole tract, except that which is actually in the possession of his adversary; the legal seisin as to the unoccupied portion of the tract follows
the legal title, and the pedis possessio alone creates an adverse title. Mitchell v. Bonds, supra.
Furthermore, the defendant Anderson, present adverse claimant, is, as the court is aware, an outstanding and successful practicing attorney, with fifteen years experience at the Mississippi Bar, knowing the ordinary and usual perils of tax titles, and he knew, or should have known, that the tax sale in question was invalid and that his title based thereon was void. Where one knows that he is acquiring an instrument constituting color of title which, in fact, conveys no title, he cannot have an entry under color of title. Mitchell v. Bonds, supra.
In view of the foregoing the complainants submit that the defendants have utterly failed to establish any adverse possession that would entitle them to the benefits conferred by Section 717 of the Code, and that the complainants are therefore not barred from attacking the invalid tax title of the defendants as a cloud upon the title of the complainants.
Watkins Eager, for appellees.
We respectfully submit that the proof in this case establishes: that the land, while not swamp land, was not susceptible of actual cultivation, but was only reasonably suited for the growing of timber and grazing cattle thereon; that the appellees since 1941 have continuously made use of the land by the Engineer's survey and blazing of trees, cutting of all the merchantable timber thereon, payment of taxes thereon, recording of a number of deeds of trust thereon, grazing of cattle thereon, repairing of fences, prevention of trespass and fire, and actual cultivation of one small field; that the evidence is ample to justify the finding of fact of the trial judge in the decree, as follows: ". . . the court finding that the defendants have been in actual, open, notorious, hostile, continuous, exclusive and adverse possession of said land,
claiming to be the owners thereof from 1941 down to and including the present time; and the court finding that the complainants are barred by Sec. 717, Miss. 1942 Code, from attacking the validity of the 1931 tax sale and are barred by statute from cancelling the title of the State or its patentees and from recovering said land from the State or its patentees on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes; and the court finding that the complainants have abandoned said land and have not been in possession thereof, and have not exercised any ownership thereover since said tax sale, but that the defendants have been in actual adverse possession thereof, to the knowledge of complainants, from 1941 to date . . ."
This court, in holding that Section 717, Miss. 1942 Code, is not applicable unless there has been an invasion of the original record owner's possession, emphatically pointed out that the type of possession necessary to constitute an invasion of the original owner's possession was the same type of possession as required by Section 711, Miss. 1942 Code, to acquire title by ten years' adverse possession. This was the holding of this court in Leavenworth v. Claughton, 197 Miss. 618 , 19 So.2d 815 , 20 So.2d 821.
Section 711, the ten years' adverse possession statute, has been part of the statutory laws of the State of Mississippi since Hutchinson's Code of 1848. Its requirements of "actual adverse possession" has been interpreted again and again by this court.
Section 716, on the other hand, which requires "actual occupation" by an individual purchaser at a tax sale, is inapplicable and the cases interpreting this statute are inapplicable here.
And yet, in spite of this, appellants in their brief rely principally upon Cook v. Mason, 160 Miss. 811 , 134 So. 139 , citing it and referring to it again and again throughout their brief; and on page 17 thereof saying: "The principles of law involved in this case are identical with
those recognized by this court in the case of Cook et al v. Mason et al, 160 Miss. 811 . . . ."
And yet, the Cook case, supra, is a case involving Section 716, Miss. 1942 Code. There, the court merely held that pasturing without inclosure "does not constitute adverse occupation" under Section 716.
A case pointing out the distinction between the different types of adverse possession required by the two statutes is Smith v. Anderson, 8 So.2d 251 , (Miss.) where this court held: "Under statute providing for acquisition of title to land by ten years' adverse possession, thereof, one may acquire title without actually occupying land, either by himself or by tenant, but by merely cultivating, pasturing, cutting and selling timber and other acts of ownership and control over the land. Code 1930, Sec. 2287."
We respectfully submit that appellees here, and their predecessors in title, have been in actual adverse possession of the land here involved from the Spring of 1941 to date, under the decisions of this court, interpreting Section 711, Miss. 1942 Code.
The possession of the prior owner was invaded, and we submit violently invaded, during the summer of 1941 by appellees moving onto the land a portable sawmill and cutting all of the available timber therefrom. It is undisputed that this invasion of the appellants' constructive possession of the property constituted open, notorious and hostile, adverse possession; that it was with the actual knowledge of appellant who came and observed the actual invasion of the land and decided to do nothing about it.
After the timber was cut, Moseley, the patentee of the State, continued in constructive possession of said land, (under color of title of his patent, and after the open, notorious and hostile invasion of the prior owner's right) by the payment of taxes and the recording of deeds of trust thereon during a period of time while he was planning and hoping to buy cattle and graze them on
the land. In the early Spring of 1943 he had reached the conclusion that he could not go into the cattle business and thereupon leased the land to the Andersons. For more than two years prior to the bringing of this suit the Andersons, (as tenants of the patentee of the State, and then as purchasers from the patentee of the State, Mosely) were in adverse possession of this land by the pasturing of a large herd of cattle thereon and the payment of taxes and the prevention of trespass, supervision, cutting of fence posts, etc. It is settled in this case that this land was not the type of land which should have been cultivated and actually occupied.
From the above facts there were much more than two years actual, adverse possession by the patentees of the State under decisions of this court.
The controlling case here is McCaughn v. Young, 85 Miss. 276 . There, one in possession of land under a trustee's deed notified the grantor in the Deed of Trust that had purchased the land; that he held it adversely claiming title. The foreclosure was void. The land was not suitable for actual cultivation and occupancy. The possessor paid the taxes for a long term of years, during which time the former owner neither paid taxes nor asserted any claim to the land. The possessor used the timber from the land to the same extent that he used timber from other lands belonging to him, to the knowledge of the former owner, and placed mortgages of record. The court in that case, in holding that the purchaser at the void foreclosure acquired a good title, held: "A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious and adverse."
Unquestionably, here, Mr. Mosely and Mr. Anderson used this land exactly as they used other similar land that they owned and unquestionably they made all of the use thereof they could profitably make and no more was required of them.
The above McCaughn case is also in point should appellants attempt to take the position that there was a break in the adverse possession during the year 1942 when Moseley had no cattle thereon and before he leased the land to Anderson. Moseley had already, during 1941, gone into actual, open, notorious, and hostile occupancy of the land by cutting the timber. He had made entry thereon to the knowledge of Webb, the prior owner. He was in possession under color of title of State Patents. During the year 1942 he continued to pay the taxes and to claim the land. There was not even a suggestion that he abandoned the land. The following language in the McCaughn case is, therefore, applicable: ". . . The record contains no circumstance from which an intention to abandon his dominion over the land or surrender his claim of title thereto can be inferred. `Possession of land is acquired by an entry on it, with the intention to possess it, and is lost by leaving with an intention to abandon it.' Harper v. Tapley, 35 Miss. 506 . Rozelle's entry and possession was not stealthy or clandestine, but open and notorious, with the knowledge of the appellee. His posession was exclusive, undisputed, and adverse, and under a muniment of title which, even if voidable, constituted a color of title, and the record shows no such state of facts as warranted the trial court in charging as an undisputed fact that the required continuity of occupancy had not been established. `Possession of land once acquired is not lost by a removal from it, if the party removing has color of title and by his acts manifests an intention still to claim and use it.' Harper v. Tapley, supra; Ford v. Wilson, supra; Aldrich v. Griffith, 66 Vt. 402 , 29 A. 376.
The above case of McCaughn v. Young has been recently cited with approval in Kornegay v. Montgomery, 12 So.2d 423 , (Miss.) It was, also, cited with approval and held to be the law in Douglas v. Skelly Oil Co., 28 So.2d 257. In the Skelly Oil Company case, supra, the court also pointed out that a reasonable failure to use
the land for two years with no proof of intent of abandonment would not break the continuity of adverse possession.
An inclosure is, of course, not necessary to adverse possession. The only benefit therefrom in establishing adverse possession is to assist in flying a flag over the land and putting the owner on notice of the adverse claim and the land adversely claimed. Snowden etc. Co. v. Handley, 195 Miss. 682 , 16 So.2d 24 . An inclosure is, therefore, entirely unnecessary where the owner knows of the adverse claim and knows the exact land being claimed by the disseizor, as, for example, where he is in possession under color of title.
A case decided by this court in 1899 has a familiar ring in the case at bar. See Gathings v. Miller, 76 Miss. 651 , 24 So. 964.
Interesting and applicable is the case of Jagoe v. Carrier Lumber Manufacturing Co., 119 Miss. 564 , 81 So. 132.
In the old case of Ford v. Wilson, 35 Miss. 490 , this court held that where adverse possession had been visible and notorious to the knowledge of the original owner, and where after a fire the property was not occupied for six years, that there was no interruption in the continuity of the adverse possession, there having been no adverse re-entry by the owner.
Appellants in their brief realize that McCaughn v. Young, is applicable here in support of appellees' case, and seek to counteract the same by citing A.W. Stevens Lumber Co. v. Hughes, 38 So. 769. In the Stevens Lumber Company case this court did distinguish it from the McCaughn case, supra. However, in the Stevens case, the would-be possessor had done nothing with reference to the land except cut "rails, boards, and some pine or light wood off of the same", and it was undisputed in that community that for people to cut rails, boards, and pine or light wood off of other people's land was common and accepted. The differentiation of the Stevens Lumber
Company case from the McCaughn case shows clearly that the case here at bar comes under the McCaughn case and not the Stevens Lumber Company case.
It is quite true that a few other people turned a small number of cattle into the inclosure and onto this land; that they were mostly tenants on the Nunnery and Cruise property (Anderson's tenants) but there were a few adjoining property owners who turned cattle on the land. That, however, all of the people who turned any cattle into this inclosure to graze did so realizing that they did not own the same and without making any claim of ownership, but as trespassers subject to the request of or wishes of the real owners. The number of cattle using the inclosure was small in comparison with the large herd of the Andersons and none of the owners of the other cattle exercised any dominion over the land nor claimed the right to exercise any dominion over the land. None of these owners of cattle claimed any title or had any color of title to the land or paid any taxes thereon. On the other hand, they all knew that they were gratuitously grazing their cattle on someone else's land.
The fact that these few people permitted some cattle to graze on this land would not prevent Anderson from acquiring title by adverse possession by grazing a large herd of cattle thereon and claiming title thereto under color of title. Anderson, as a tenant of Moseley and for Moseley was openly and notoriously in possession and claiming title and merely permitted a few other people to turn a few head of cattle on this land, as was the custom in this community if there was ample grazing.
It is true that adverse possession must, to ripen into title, be exclusive. However, for adverse possession to be exclusive, it is not necessary that the would-be possessor be the sole person on or using the land. It only means that the possessor must be the only person claiming title and he must be claiming all title as against the prior record owners. The rule does not mean that adverse possession must be exclusive to the extent that
other people or the public cannot make a different use of the land than the possessor, or that they could not use it with the express or implied permission of the possessor.
In Mississippi, this court has gone so far as to hold that a wife can acquire title by adverse possession againt her husband while they are both residing on and using the property, where the wife has record color of title and where the husband at all times recognized her ownership and is not in joint possession in his own right as an owner. See Lincoln v. Mills, 191 Miss. 512 , 2 So.2d 809 , 3 So.2d 835.
The requirement that adverse possession must be "exclusive", in reality means "exclusive dominion" over the property and exclusive claim thereto. Exclusive adverse possession need not be exclusive as to all persons but only exclusive as to the true owner and exclusive as to all other claimants of title. It does not mean physical exclusion but merely possession which is exclusive as to any other adverse possessor. Where the use of land by the public and the claimant is different, rather than common, and the claimant's use is as owner but the other members of the public's use is without any claim of ownership, there is no breach of the requirement of exclusiveness of possession. 1 Am. Jur. Para. 141-146; 2 C.J.S. Para. 47 and 52.