I wrote yesterday about adverse possession in Mississippi and how it relates to probate. Today I want to look at a recent Mississippi Court of Appeals case in which the appellant tried to use adverse possession to claim a possessory right in the land of his neighbors to the north. The court tested the claim by applying the elements of adverse possession that we discussed yesterday to the facts of the situation and deciding whether the appellant had met his burden of proof by providing clear and convincing evidence.
In Niebanck v. Block, two families of landowners (the Dale and the Wimses families) had discovered that a Mr. and Mrs. Niebanck had a fence running across the southernmost part of their property and asked the Niebancks to remove it. In response, the Niebancks wrote the Dale’s and Wimses’ each a letter offering to purchase their land for 5,000 dollars an acre. In the letter, the Niebancks stated that they had believed the property to the fence and including the fence was theirs. And that they had used and maintained said property for over 14 years. However, in fairness and with neighborly consideration they would like to make an offer to buy the property.
Both neighbors responded to the Niebancks letter with a request that the fence be removed and the use of the property be returned to them. The Niebancks then sought an injunction from the court to prevent the removal of the fence and asserted their claim that the property was actually theirs under the legal principle of adverse possession. The Niebancks argued that they had maintained possession of their neighbors’ land for the statutory 10-year period in an adverse way. Specifically, the Niebancks asserted that they owned 0.7 and 0.4 acres of each of their northern neighbors’ land.
The lower court found that the Niebancks had failed to meet certain elements of adverse possession. In particular the Neibancks had failed to establish by clear and convincing evidence that they had maintained 2) actual or hostile possession and 3) open, notorious, and visible possession. The Niebancks appealed.
On appeal, the Mississippi Court of Appeals reviewed the lower court’s decision regarding adverse possession. The Court noted that in order for the possession to be considered hostile, the landowner of the disputed property could not believe that the possessors presence on the property was by permission. In this case, the previous owner of the Dale’s and Wimses’ property had given Mrs. Niebanck permission to ride her horse on his property. This made the Niebancks occasional use of their property permissive as oppose to hostile.
The element of actual or hostile possession is there to put the current landowner on notice to the fact that their land is being occupied by another. Setting up a dwelling or making a spectacle of your use of the land is often enough to meet this requirement. But if you have received permission to use the land, all subsequent acts become permissive possession rather than actual or hostile.
The court also discussed whether the Niebancks met the element of having open, notorious, and visible possession of their neighbors land. The court held that mere possession of the land is not enough for it to be considered open and notorious. This requirement is also there to give the landowner notice that a person other than them is occupying their land. Thus giving them a chance to regain possession of their land.
The Niebancks asserted that their possession was open and notorious based on the fact that there was an old barb wired fence north of their actual boundary line. Previous cases have said that if a fence encloses the property for a period of ten or more years, title of the land will vest in the adverse possessor, even if the fence is in disrepair.[1]
However, the Niebancks did not build the fence. It was there when they came into possession of their land. The previous owner, who owned all the acreage that was subsequently subdivided and sold to the Niebancks, Dales and Wimses, had put the fence up as part of a corral for cows. Therefore, the fence was not used to show open, visible and notorious possession. And the Niebancks did not fulfill the burden of proving, by clear and convincing evidence, that the element of open, notorious and visible possession was met.
The Mississippi Court of Appeals held that the husband and wife failed in their claim of adverse possession and consequently needed to remove their fixtures from their neighbors land.
Niebanck v. Block, NO. 2009-CA-00530-COA.
[1] Roy v. Kayser, 501 So. 2d 1110, 1112 (Miss. 1987).