Edwards v. Pannell - 292 So. 3d 586 (Miss. App. 2019)

Rule:

An element necessary to prove adverse possession requires a determination if the use of the property was actual or hostile. When a person has permission to use land, their use is not hostile for purposes of adverse possession. Permission, once given, will not ripen to adverse possession. This is because use by express or implied permission or license, no matter how long continued, cannot ripen since adverse use is lacking. When possession of land is inexplicably intermittent, or alternated with use by the true owner, this cannot establish adverse possession.

Facts:

Mr. and Mrs. Purvis owned Lots 3 and 2. The owners of Lot 1 put up a fence which encompassed a section of Lot 2. The smokehouse and other outbuildings in Lot 2 were also removed. Four years after discovering that the fence was put up and the property was bulldozed, the Purvis’ children sued the owners of Lot 1 for trespass and damages. The owner of Lot 1 counterclaimed and asked the chancery court that she be declared the owner of part of Lot 2 where the new fence was put, alleging that she had acquired it through adverse possession. The chancery court found that adverse possession was established and dismissed the claim for trespass and damages.

Issue:

Under the circumstances, was adverse possession clearly established, thereby warranting the dismissal of the plaintiffs’ claim for trespass and damages?

Answer:

No.

Conclusion:

The court held that the chancellor erred in finding that the neighbors established adverse possession as to the disputed property because two of the elements of adverse possession were not met—that the use of the disputed property was not open, notorious, and visible and that it was not hostile. According to the court, the permissive use of the disputed property, and permission sought by a neighbor from an owner before she entered it to clear it, defeated the claim of adverse possession. Because the finding of adverse possession was reversed, reversal and remand as to the claim for trespass was necessary.