Adverse Possession - A Bad Rap on a Good Statute
by Robby Toombs and Gee Ogletree
This two-part article was written by Robby Toombs, Plum Creek Timber Company, and Gee Ogletree, a partner in the Jackson office of Adams and Reese, LLP. Ogletree is licensed to practice law in Mississippi and Alabama and coordinates the firm's southeastern forestry practice. He is also general counsel for MFA.
Part One, by Robby Toombs
In Webster's 10th Edition Dictionary, adverse is defined as "acting against or in a contrary direction; Hostile." This definition generates the impression that adverse possession laws have a negative impact on land ownership. It has been my experience as a management forester for a large landowner in various states that adverse possession laws are actually a beneficial means of protecting the landowner.
Most of the original surveys of lands in Mississippi go back to the early to mid 19th century. The Spanish land grants, which go back to the earliest settlers, were incorporated in the rectangular survey system at this time. While the townships incorporating the Spanish land grants are still six miles square, many have sections numbering much higher than the normal 36 square miles and the sections are anything but square. Even in the normally divided townships, it must be remembered that these were surveyed with real link chains, using compasses that had nowhere near the precision of today's instruments, over lands often untouched by civilization, by crews camping out and living off the land.
All of this is to say that land subdivision in the early days of our country was preformed with a lesser degree of precision than we expect today. In our modern era of computers, global positioning systems, and pin-point accuracy it is hard to fathom close being any more than a foot or two. In the days of the original surveys, close was probably in the tens or maybe even hundreds of feet. So even the most proficient licensed surveyor (which the vast majority of surveyors are) with the most modern equipment is still dealing with base surveys from the 19th century.
In fact, some of the original surveys have been adjusted in some instances to correct errors. According to the Bureau of Land Management, "The original state line between Alabama and Florida did not close against the Tallahassee Meridian survey (which covered all of Florida), but rather against the earlier St. Stephens Meridian survey in south Alabama. The state line was later resurveyed, creating a situation where some Tallahassee Meridian lands fell across the border into Alabama." (http://www.glorecords.blm.gov/visitor/faq.asp)
What does this mean to today's landowner and where do adverse possession laws fit in? Today, landowners face boundary line challenges where land has been in a single ownership with surveyed boundaries for decades. And, I have witnessed these challenges first-hand. In both of the instances that I am aware of, the surveyor was using base surveys that had changed from the original. In one instance in particular, the movement in boundaries would have created a chain reaction in which several owners would have been impacted for miles around.
So here you have land ownership where boundaries have been established, maintained, and managed for years. And yet, someone comes in and asks you to move the lines. Your protection is called adverse possession. According to the adverse possession law, by establishing, maintaining, and managing to your lines for more than 10 years in Mississippi you own the property and the boundary line is established. In both of the cases I am familiar with the court ruled that the lines were established and the boundaries didn't need to be moved.
In another case, I was managing property that adjoined another landowner on two sides of a 40 (their south and west lines). Our lines had not been surveyed but had been maintained to the fences purchased 20 years prior. The adjacent owner informed me that they had "surveyed" their property. The surveyor had conducted two surveys. The first started at a corner north and west of the property and the second started at a corner east of the property. The first survey would have moved the adjoining lines north and west, and the second survey moved the lines south and east. Each survey involved about the same amount of acreage change and, in each survey, the net acreage change to each owner was minimal.
The landowner who commissioned the surveys wanted to use one line from each survey to change the boundaries. Of course these two lines required me to give up land on both sides and lose acreage. I told him that since we were maintaining to the fence lines, I would accept one survey or the other. But, I definitely wasn't going to agree to let them have the best of both surveys. This went back and forth awhile, but they finally agreed to accept one survey.
My defense, if we had gone to court, was adverse possession. We had maintained the boundary (in this a case a fence) since the initial purchase 20 + years prior, managed the timber to line, and, in general, had met all the requirements of the adverse possession laws.
Finally, there are times where lines have been surveyed and maintained for years and someone comes in and purchases the adjoining property. They have a survey conducted and it comes up placing the boundary line in a different place from where the other survey placed it decades ago. Again, as a landowner, adverse possession can comes into play and protects you as a landowner from having to move the property lines and potentially lose acreage.
In all of the cases above, adverse possession laws actually protect landowners from hostile action rather than being a "hostile" law. I don't know how many landowners there are in the state of Mississippi, but without the protection of adverse possession laws, each one of them would be exposed to a risk of land loss they don't currently have.
Part Two, by Gee Ogletree
Robbie Toombs' article on adverse possession is refreshing. Finally somebody got it right.
For years Mississippi's adverse possession statute, Miss. Code Ann. '15-1-13, has been given a bad rap. It is portrayed as the friend of the land and timber thief, the last refuge of the squatter, the legal justification for taking land and timber that rightfully belongs to another.
Hogwash! As Robbie correctly points out, adverse possession cures many more problems than it creates.
Mississippi's adverse possession statute provides that a person who holds property and claims to be its owner for an uninterrupted period of ten (10) years is vested with full and complete title. The courts of our state look to a number of factors in deciding whether or not possession is truly adverse. Generally, the party claiming adverse possession must prove that the property was held openly, notoriously, visibly, exclusively, and continuously for the ten (10) year period.
Because of the unique nature of timberland when a boundary may not be observed every day, week, month or even every year, courts strive to make certain that the landowner had actual or constructive knowledge of the adverse claim. The factors considered by the court include: (1) surveying the land; (2) identifying the boundaries by painting trees, blazing trees, or staking corners; (3) posting the property; (4) fencing the property; (5) using the land for farming or cattle purposes; (6) hunting on the property; (7) paying taxes, (8) establishing pre-suppression fire lanes or fire guards; (9) planting or transplanting trees; (10) cutting trees or utilizing wood products; and (11) placing mortgages on the property, offering it for sale or granting oil and gas leases.
Many forest owners know the location of the boundary line between their property and their neighbor's property. There is rarely a dispute. People on both side of a line put up fences, paint lines, cut timber, and otherwise live their lives according to the "established" property line.
Suddenly, one neighbor dies. That neighbor's children decide to sell the place and hire a surveyor. Now the woods are full of flagging tape, stakes, and other evidences of the boundary lines. However, the surveyor's line seems in the wrong place. He shows the line ten, twenty, perhaps fifty feet over on your property. The "established" property line that was undisputed among friendly neighbors for thirty years is now disputed by the next generation who may have never spent any time on the land.
The "difference" could be caused by a number of reasons. The "established" property line may have been a guess by the parties or the traditional line used by their predecessors. It could be correct if one tract is surveyed but incorrect as to the other (due to the two properties having different points of beginning for their legal descriptions, irregular section sizes, or other reasons). On the other hand an original survey (if one existed) may be wrong due to human error from a twisted chain used for measurement or a transposition in recording the information. Yesterday's surveys with measurements by lengths of chains and bearings based on old deeds will rarely yield the same result as today's surveys utilizing electronic total station technology (that measures distances by bouncing light signals off a mirror to compute the time the light travels) with bearings based on solar observations.
So one party has a claim of title under adverse possession. Having a valid claim and enjoying merchantable record title are two different things. It will be difficult to sell the property held by adverse possession without good record title. To obtain good and valid record title, the party holding the disputed property must obtain the property by deed or by court decree. The court will adjudicate title based on adverse possession if the possession meets the statutory requirements.
What should you do? Do you ask the neighbor's heirs to sign a deed to you? If you were asked do you sign it? Do you file suit? Do you start rumors about your neighbor's truth and veracity? Do you stop speaking to each other in church?
It's time to talk to your preacher or priest about how to treat your neighbor. It's also time to talk with your lawyer about adverse possession. If everyone agrees on the facts, the lawyers may suggest a boundary line agreement. This requires a survey, deeds, and willing parties. Both sides agree on the line and deed each other any interest they may have in the property on the "other" side of the line. The actual location of the line may be the "established" line, the most recent surveyed line or a compromise location.
Sure, that is the easy case. But what do you do when your neighbor encroaches on your property? You must resolve encroachments before they ripen into adverse possession and property is lost. You should obtain specific advice from your lawyer who will review the facts and circumstances of your case. Your lawyer may likely advise you to: (1) go see your neighbor and try to work it out as friendly neighbors B they may not know they are encroaching and may stop; (2) if your neighbor refuses to do so you should have your lawyer write them a demand letter (unfortunately some people will not do the right thing unless they know you will make them do so); (3) if your neighbor still refuses to remove the encroachment or observe the correct boundary line your lawyer may prepare for filing suit by checking the title to your property and your neighbor's property, examining tax records (receipts and maps) for both properties, engaging a surveyor to survey the disputed line using both property descriptions (if necessary), and interviewing you and others concerning your actions that indicate your ownership over the disputed property. Your lawyer may then write a second letter informing the neighbor of the evidence favoring your claim of ownership and indicate your intention to exercise your legal rights; and, (4) file suit or, in the case of an encroaching fence or driveway, file a notice with the chancery clerk to defeat an inference of adverse possession.
The old adage "an ounce of prevention is worth a pound of cure" is certainly applicable to adverse possession. Establishing and maintaining your boundary lines cannot be overlooked. Establishing the line by fencing, painting or blazing is the first priority. Then routine maintenance should be followed. Keeping written records of the maintenance (repairing fences, walking the lines, repainting or reblazing trees) will be helpful in the event of a later dispute. Most landowners maintain boundaries on a six (6) year cycle to stay well within the ten (10) year prescriptive period. If they find an encroachment, this gives them time to work out any differences with their neighbors before seeking litigation as a last resort.
 Who pays the taxes is one element considered by the court in deciding a claim of adverse possession. Broadus v. Hickman, 210 Miss. 885, 886-87, 60 So.2d 717, 718 (1951). In recent years, bills were introduced in the legislature to change the adverse possession laws to make the issue of who pays taxes on the land determinative of whether or not adverse possession can ripen into good title. In other words, if you pay taxes on your land, no one could adversely possess it no matter what they did on your property. Although this has some initial appeal, an close examination of the issue reveals that errors in the tax map could cause someone to lose property to adverse possession without ever knowing of a claim by their neighbor. MFA has opposed this legislation because it would turn tax maps prepared in good faith by elected officials without a survey or physical inspection of the property into a battleground for title claims. It is not unusual to find errors in the tax maps. It is unusual for most landowners to ever see tax maps kept at the courthouse since the vast majority of landowners pay taxes when they receive tax bills that generally describe their property and will never include a copy of the tax map itself. MFA believes title should be decided under well settled Mississippi law with who paid the taxes being one issue but not the sole determining factor.
 In 1998, the legislature amended the adverse possession statute. This amendment provided that claims of adverse possession that had not matured as of July 1, 1998 would not "apply to a landowner upon whose property a fence or driveway has been built who files with the chancery clerk within the ten (10) years required by this section a written notice that such fence or driveway is built without the permission of the landowner." The amendment did not prescribe the form of the notice but did require that the notice "describe the property where said fence or driveway is constructed." Miss. Code Ann. ' 15-1-13(2). Because the notice only "tolls" the ten (10) year prescriptive period rather than resolving the dispute, your attorney may still advise you to file suit while parties and witnesses are alive with good memories who can testify to your ownership and occupancy of the property.
 When purchasing timberland you may be well served obtaining an affidavit of possession from the seller. Many purchasers also acquire the seller=s boundary line maintenance records to establish claims of possession of property. Because Mississippi allows tacking (adding claims of adverse possession of successive landowners) these steps can mean the difference in winning and losing an adverse possession suit.