IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-CA-00252-COA
DAVID G. FITZPATRICK AND CLOTEAL A. APPELLANTS/CROSSFITZPATRICK APPELLEES
v.
DOROTHY FAULKNER APPELLEE/CROSSAPPELLANT
DATE OF JUDGMENT: 02/20/2025
TRIAL JUDGE: HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED: TATE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: TAYLOR ALLISON HECK
NATHAN E. FITZPATRICK
ATTORNEYS FOR APPELLEE: GOODLOE TANKERSLEY LEWIS
SAMANTHA DAVIS WEATHERSBEE
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS-APPEAL: AFFIRMED -09/22/2026
MOTION FOR REHEARING FILED:
EN BANC.
LAWRENCE, J., FOR THE COURT:
¶1. Dorothy Faulkner filed an adverse-possession suit against David and Cloteal
Fitzpatrick. The Fitzpatricks filed counterclaims and, eventually, a motion for summary
judgment. The chancellor denied the motion for summary judgment and, following a trial
on the merits, entered a final order granting Faulkner’s claim of adverse possession.
Aggrieved, the Fitzpatricks appealed, raising two issues. First, they argued that the chancery
court erred in denying their motion for summary judgment and second, that the chancery court erred in its findings of facts and conclusions of law in granting adverse possession to
Faulkner. Faulkner cross-appealed, asserting the chancery court should have provided her
title to more land under adverse possession. After review, this Court affirms in part, reverses
in part, and remands the case to the chancery court.
FACTUAL AND PROCEDURAL HISTORY
¶2. On November 8, 2023, Dorothy Faulkner filed a complaint for adverse possession
against David and Cloteal Fitzpatrick, the record owners of a portion of real property in
Senatobia, Mississippi, in the Tate County Chancery Court.1 The complaint alleged that
Faulkner had “adversely possessed” a piece of property “off of” Gravel Springs Road in
Senatobia and had continued doing so for over ten years. See Miss. Code Ann. § 15-1-13(1)
(Rev. 2019). She also stated that “[p]art of her house and part of her driveway is located”
on the land she sought to possess, and “a mobile home that she owns and maintains is located
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The property was described as:
A fractional part of Section 7, Township 6 South, Range 6 West, Tate County,
Mississippi, more particularly described as follows, to-wit:
Beginning at an iron rod at the intersection of the South line of the North Half
of the Northwest Quarter of said Section 7 and the East line of the said
Northwest Quarter of said Section 7, run thence South 89°28'02" West
2659.92 feet along the said South line of the North Half of the Northwest
Quarter of Section 7 to a point in the center line of Gravel Springs county
paved road; thence Northward 731. 7 feet along said road centerline to an iron
spindle; thence East 2656. 7 feet to the point of beginning, and total net
acreage after deducting the exceptions being 39.4 acres, more or less.
Reference is hereby made to deed recorded in deed book 2018 at pages 3909-3911 from Dayle McClinton to David G. Fitzpatrick and wife, Cloteal A.
Fitzpatrick, as tenants by the entirety with full rights of survivorship and not
as tenants in common.
2
completely on that land.”
¶3. The Fitzpatricks filed separate answers to Faulkner’s complaint on December 12,
2023. In addition, they filed counterclaims accusing Faulkner of trespass, nuisance, and
violating the applicable ordinances. On November 8, 2024, the Fitzpatricks filed a motion
in chancery court to transfer the case to circuit court. Faulkner filed a response on November
11, arguing that the case involved land that “is clearly and inarguably within the
constitutionally established jurisdiction of chancery court” and that the whole basis of the
action as a whole was adverse possession. On November 22, 2024, the chancellor entered
an order denying the motion to transfer.
¶4. On January 7, 2025, the Fitzpatricks filed a motion for summary judgment
encompassing four exhibits: (1) a warranty deed; (2) a land survey; (3) a transcript of
Faulkner’s deposition; and (4) an affidavit from Cloteal. The land survey displayed five
“encroachments” of Faulkner’s property onto the Fitzpatricks’ property: (1) a portion of
Faulkner’s home; (2) Faulkner’s driveway; (3) a small portion of Faulkner’s shed; (4) a
mobile home; and (5) the northern portion of Faulkner’s yard.
3
Faulkner filed a response to the motion with additional photographs and diagrams attached.
On January 23, 2025, the chancellor denied the Fitzpatricks’ motion for summary judgment.
¶5. The chancellor held a trial on the merits on February 7, 2025. David Fitzpatrick first
provided testimony beginning with his marriage to Cloteal in approximately 1974. At that
time, the owners of the subject property were George McClinton and his wife, who were
Cloteal’s grandparents. David testified that he and Cloteal took ownership of the property
next to Faulkner’s in 2018. David had not overheard any conversations between the
McClintons and the Faulkners regarding the land at all. In fact, he testified that he knew
nothing of Faulkner until the Fitzpatricks had a survey done of the land in 2022. He also
stated that he was unaware of any property-line disputes until a land survey was taken in
2022. David contended simply that “Ms. Faulkner is sitting on land that she does not own.”
¶6. Faulkner then testified. She recalled that she and her husband Clarence (now
deceased) bought empty land on Gravel Springs Road in 1972. At an unspecified point in
time, George McClinton put a spike into the ground between their land, demarcating where
the Faulkners’ property ended. The Faulkners built a house on the land in the years
following. In approximately 1980, the Faulkners expanded their home to the north (toward
the McClinton land) to add two additional rooms for their growing children. Faulkner did
not have any knowledge of any land survey or any conversations her husband had with
McClinton about the land at the time. Faulkner stated that they expanded their home then,
and they thought, “Actually, we did” own the land. She stated that the expanded part of the
home on the Fitzpatricks’ land was still part of her home today. Faulkner testified that she
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and her family had a good relationship with the McClintons as neighbors. She agreed that
“the McClintons basically allowed [the Faulkners] to use their land[.]” In approximately
1978, the Faulkners constructed a shed, now known as Faulkner’s “she-shed,” and a gravel
driveway. They used the yard apportioned to them via the marked spike. Both the shed and
the driveway also sit partially on the Fitzpatricks’ land.
¶7. Faulkner explained that the mobile home she purchased in 1996 had two pieces to it.
She agreed that “the two pieces have to be connected” and that “it has to be set down
properly so the two pieces line up next to each other[.]” Faulkner asked Cloteal, who then
was managing the property while her grandparents still lived there, and received permission
to place the mobile “[a]cross over from where . . . her driveway is now.” The mobile home
remained in that spot for two to three weeks before being fully assembled and moved to the
spot it now occupies. The spot it now occupies is on the Fitzpatricks’ land. Faulkner testified
that she was aware that the initial location “belonged to the McClintons” but maintained that
she believed the mobile home’s second, current location “was our property.” Additionally,
she testified that no one was living in the mobile home but that she was using it “to store a
few things in.”
¶8. Several notable exchanges in Faulkner’s testimony regarding the mobile home follow
below:
Q: [Y]ou’ve only had a few conversations with [Cloteal] about the land;
correct?
A: Correct.
Q: And one of those conversations was in the 1990s; correct?
A: Correct.
Q: And another one was a few years ago at her house; correct?
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A: Correct.
Q: And in that [conversation at her house], you also told her that you had
been trying to buy the land from her for 12 years; correct?
A: Correct.
Q: And you state that you got permission from Ms. Fitzpatrick to place
the trailer on land that once belonged to her grandfather; correct?
A: Correct.
Q: You didn’t think it was fair that you got permission to place this trailer
and now you were being asked to move it, did you?
A: Well, actually, it wasn’t.
Q: It was not fair?
A: It was not fair.
Q: Now, you didn’t think it was fair because you never stopped her from
doing anything like coming on your land; correct?
A: Correct.
Q: And you never stopped her from having access to your property;
correct?
A: Correct.
Q: And you never put up a fence around the trailer or the land at
issue, did you?
A: I did not.
Q: And you never put up any “Keep Out” signs telling the Fitzpatricks
or anyone else in their family to stay away, did you?
A: I did not.
Q: So they had full access to the property; correct?
A: Correct.
Q: And there was never an issue with the land or the trailer until they told
you there was one; correct?
A: Correct.
(Emphasis added).
¶9. Dayle McClinton testified after Faulkner. Dayle stated that he was the grandson of
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George McClinton and his wife, and he was the cousin of Cloteal. George died in 1987, and
his wife died in 2014, leaving Dayle to inherit the land on Gravel Springs Road.2 Dayle sold
the land to Cloteal and David in November 2018. Cloteal had been responsible for “mostly”
managing the land since “I don’t know exactly [when] with my father, but ever since my
mother inherited it[.]”
¶10. The final witness to testify was Cloteal. She clarified that she began managing the
property “starting in ‘84, [because George] had gotten incapacitated[.]” Cloteal recalled
receiving a phone call from Faulkner in the 1990s but “remember[ing] it a little differently
from the way [Faulkner] explained it[,]” stating:
I remember her calling me and telling me or informing me that she had bought
a trailer and it was a little too large to fit on her property[,] . . . and would it
be okay if it stuck over on that property next to her a little bit? And I said,
no, I wouldn’t mind.
(Emphasis added). Cloteal testified that she was not living on the property at the time and
“did not know that [the trailer] was on the [property] line” the first time she saw it. She
continued that she “didn’t realize that the whole of it was on our land or I might have
objected to it, but I thought, you know, just at a visual, it looked to be over the line.” Cloteal
stated that she did not know the precise boundaries between her land and Faulkner’s land
until she had the land survey done.
¶11. Cloteal had the land surveyed in preparation for a planned deeding of two acres to “the
community center.” Her surveyor “indicated that [Faulkner’s] property - - her house - - half
2
Testimony indicated that another couple in the family, O.B. and Joann, had the property at some point before Dayle.
7
of her house was on my property . . . I had just bought.” Cloteal was “sure” that Faulkner
was unaware, so she had a meeting in her home with the land surveyor and Faulkner. She
recalled, “[A]s we met and he started to tell her, she said, ‘I already know[,]’” and she had
been trying to buy that land for twelve years. Cloteal stated that she did not agree to allow
Faulkner to purchase the land because “the trailer is where I need expansion of the driveway
to go from Gravel Springs Road to the Community Center . . . . [I]t was about needing the
space.” In addition, she testified that she made it clear at the meeting that she wanted the
trailer moved.
¶12. In closing, Faulkner’s attorney acknowledged that he “d[id]n’t think there’s an issue
about the house or the shed or her driveway, the yard.” After deliberation, the chancellor
announced the ruling of the court:
It was not real clear about what permission the McClintons gave them to be
able to use their property. But they certainly were not giving them permission
to build a house on it or to build an addition or to build a shed over on their
property[.] . . . The part of the property where the mobile home is gives me a
little more pause because Ms. Fitzpatrick did give permission for Ms.
Faulkner to place the mobile home on the property, and I think there was
a big lack of communication or a lack of complete understanding between the
two ladies as to what they were asking. [W]hatever she gave her permission
to do, she didn’t give her permission to put the trailer all the way on McClinton
property and leave it there since 1990-something until the present time. So I
think that defeats the permissive use of the property.
(Emphasis added). The chancellor concluded by showing the property lines she would be
drawing to each party.
¶13. On February 20, 2025, the chancellor entered the final judgment and order granting
Faulkner “fee-simple ownership of the following property north of her existing property
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line[,]” attaching a photograph and specifying:
North Boundary: Five feet north of the northern-most edge of where the
trailer home is located straight west to Gravel Springs
Road.
East Boundary: Five feet east of the eastern-most edge of where the
trailer home is located, connecting with the North
Boundary to the north and the Faulkner property to the
south.
West Boundary: Gravel Springs Road.
South Boundary: Faulkner’s existing property line.
A diagram from the land survey displayed the exact land awarded to Faulkner by the
chancery court.
The Fitzpatricks appealed this decision on February 28, 2025. On March 13, 2025, Faulkner
filed her Appellee’s brief and cross-appealed, arguing that she was entitled to more land than
what the chancellor awarded her.
STANDARD OF REVIEW
¶14. “This Court has a limited standard of review in examining and considering the
decisions of a chancellor.” Anderson v. Jackson, 338 So. 3d 629, 641 (¶23) (Miss. Ct. App.
9
2022) (quoting Frazier v. Frazier, 31 So. 3d 1218, 1219 (¶4) (Miss. Ct. App. 2009)). “A
finding that the proof was sufficient to sustain a claim of adverse possession is a fact-finding
that requires our application of the substantial-evidence/manifest-error test.” Id. (citing
Presley v. Stokes, 290 So. 3d 763, 765 (¶6) (Miss. Ct. App. 2020); Powell v. Meyer, 203 So.
3d 648, 652 (¶16) (Miss. Ct. App. 2016)). “[W]e will accept a chancellor’s findings of fact
as long as the evidence in the record reasonably supports those findings” and “will not
disturb the findings of a chancellor unless those findings are clearly erroneous or an
erroneous legal standard was applied.” Id. (emphasis added) (quoting Frazier, 31 So. 3d
at 1219-20 (¶4)).
DISCUSSION
I. The Fitzpatricks’ argument concerning the denial of their motion
for summary judgment is moot.
¶15. On appeal, the Fitzpatricks first argue that the chancellor’s denial of summary
judgment was erroneous. The chancellor’s order denying summary judgment was entered
on January 23, 2025, and a full trial on the merits took place on February 7, 2025. The
chancellor made a ruling in the matter following the trial entitled “FINAL JUDGMENT and
ORDER[.]” The chancery court’s trial on the merits, however, extinguishes any appellate
argument as to the denial of summary judgment for the Fitzpatricks. “[A]ppeals from the
denial of a motion for summary judgment are interlocutory in nature and are rendered moot
by a trial on the merits.” Newton County v. Deerfield Ests. Subdivision Prop. Owners Ass’n
LLC, 385 So. 3d 765, 775 (¶26) (Miss. 2024) (quoting City of Jackson v. Johnson, 343 So.
3d 356, 367 (Miss. 2022)); see also Kennedy v. Claiborne Cnty. ex rel. Bd. of Supervisors,
10
233 So. 3d 825, 832 (¶28) (Miss. Ct. App. 2017) (quoting Britton v. Am. Legion Post 058,
19 So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008)). Kennedy involved a party that was denied a
motion for partial summary judgment. Instead of filing an interlocutory appeal, the party
proceeded to participate in a trial on the merits. Id. On appeal, this Court found the
arguments concerning the denial of partial summary judgment unavailing because the trial
on the merits rendered the issue moot. Id. Likewise, we find that the Fitzpatricks’ issue
concerning the denial of summary judgment is moot.
II. Faulkner successfully proved she adversely possessed the land
containing her home and shed but did not prove adverse possession
for the remaining encroachments.
¶16. The Fitzpatricks next contend that Faulkner failed to meet all the required elements
of adverse possession. “[F]or possession to be adverse[,] it must be (1) under claim of
ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Winters v. Billings,
281 So. 3d 75, 80 (¶11) (Miss. Ct. App. 2019) (emphasis added) (quoting Powell, 203 So.
3d at 652 (¶18)). As each element is required, the absence of one is dispositive to the
analysis as a whole. See Blackburn v. Wong, 904 So. 2d 134, 137 (¶22) (Miss. 2004) (finding
that Blackburn did not have a claim of ownership over subject property and that as a result,
“[t]he other assignments of error and issues need not be discussed”).
¶17. The burden of proof was on Faulkner, as she was “the party claiming adverse
possession, and [she] must prove each element by clear and convincing evidence.” Baur
v. Ribelin, 395 So. 3d 1258, 1266 (¶25) (Miss. Ct. App. 2024) (emphasis added) (citing
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Signaigo v. Grinstead, 398 So. 3d 922, 926 (¶10) (Miss. Ct. App. 2024)). Clear and
convincing evidence is
that weight of proof which produces in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established,
evidence so clear, direct and weighty and convincing as to enable the fact
finder to come to a clear conviction, without hesitancy, of the truth of the
precise facts of the case.
Moore v. Bailey, 46 So. 3d 375, 384 (¶35) (Miss. Ct. App. 2010) (emphasis added) (quoting
Johnson v. Bay City S. Mort. Co., 928 So. 2d 888, 892 (¶14) (Miss. Ct. App. 2005)). “Clear
and convincing evidence is such a high standard of proof that even the overwhelming
weight of the evidence does not rise to the same level.” O’Neal v. Blalock, 220 So. 3d 234,
240 (¶13) (Miss. Ct. App. 2017) (emphasis added) (quoting Massey v. Lambert, 84 So. 3d
846, 848 (¶7) (Miss. Ct. App. 2012)); see also Hosp. Housekeeping Sys. Inc. v. Townsend,
993 So. 2d 418, 426 (¶30) (Miss. Ct. App. 2008) (quoting Moran v. Fairley, 919 So. 2d 969,
975 (¶24) (Miss. Ct. App. 2005)).
¶18. We discuss each “encroachment” in the Fitzpatricks’ land survey, recognizing that the
adverse possession of one area does not necessarily guarantee the adverse possession of
another area. Again, the absence of one element of adverse possession concludes the
analysis.
1. Faulkner’s Home and Shed
a. Under Claim of Ownership
¶19. In an adverse possession case, “the initial element to be proved by clear and
convincing evidence is a claim of ownership.” Baur, 395 So. 3d at 1266 (¶26) (quoting
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Blackburn, 904 So. 2d at 137 (¶19)). To stake claim and establish such, “the possessor must
fly [her] flag over the property in such a way as to put the actual owner on notice that the
property is being held under an adverse claim of ownership.” Orcutt v. Chambliss, 243 So.
3d 757, 763 (¶20) (Miss. Ct. App. 2018) (citing Apperson v. White, 950 So. 2d 1113, 1117
(¶7) (Miss. Ct. App. 2007)). The Faulkners certainly placed their “flag over the property”
when expanding their home. See id. Faulkner testified that she had been under the
impression that the land onto which her family expanded their home belonged to them:
Q: When y’all expanded the house, did you think you were expanding it
onto your own property?
A: Actually, we did.
The Faulkners continued living in the home after its expansion in 1980 for more than fortytwo years before the 2022 land survey informed them the home encroached on the
Fitzpatricks’ land. In other words, “[t]hey acted at all times while in possession as true
owners would[.]” Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶12) (Miss. Ct. App. 2008).
We also find that Faulkner successfully proved that she possessed the land on which the shed
was built under a claim of ownership. “[A]t all times while in possession[,]” Faulkner acted
as a true owner would. See id. Faulkner successfully established that she possessed the land
containing the expanded portion of her home and her shed under a claim of ownership;
substantial evidence in the record shows this element was met.
b. Actual or Hostile
¶20. Hostility in terms of adverse possession is defined as “an assertion of title superior to
the potential competing claims of anyone else; it can be rebutted by showing that the actual
13
record title owner gave permission to begin the possession.” Williams v. Est. of Williams
ex rel. Fairley, 952 So. 2d 950, 954 (¶11) (Miss. Ct. App. 2006) (emphasis added) (quoting
Lynn v. Soterra Inc., 802 So. 2d 162, 166 (¶14) (Miss. Ct. App. 2001)). In other words,
“[t]he actual or hostile occupation of land necessary to constitute adverse possession requires
a corporeal occupation, accompanied by a manifest intention to hold and continue to hold
the property against the claim of all other persons, and adverse to the rights of the true
owner.” Powell, 203 So. 3d at 652 (¶19) (quoting Hill v. Johnson, 27 So. 3d 426, 431 (¶23)
(Miss. Ct. App. 2009)).
¶21. Faulkner’s home expansion and addition of her shed were hostile and accompanied
by a “manifest intention” to hold the property against others. Faulkner testified that after the
expansion, her family remained living in the home. Further, there is no proof indicating that
the McClintons or Fitzpatricks ever took any action to prevent either structure from being
built. See O’Neal, 220 So. 3d at 241 (¶20) (“The adverse possessor must present some proof
that his occupation of the record owner’s property was hostile, and that the record
owner—aware of the adverse possessor’s hostile occupation—took no action to prevent
adverse possession.” (quoting Double J Farmlands Inc. v. Paradise Baptist Church, 999 So.
2d 826, 829 (¶15) (Miss. 2008)). The home expansion and shed were obviously over the
property boundary and on the Fitzpatricks’ land. The expanded home and shed had remained
on the Fitzpatricks’ land for over 40 years. There is no proof in the evidence showing that
the Faulkners were ever told to cease construction or tear the expanded structure down
because of its location on the neighboring property. While Faulkner was unaware that she
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was holding the land “adverse to the rights of the true owner[,]” remaining in the expanded
home and continuing to use the shed accomplished just that. The chancellor found Faulkner
clearly and convincingly met this element, and we agree.
c. Open, Notorious, and Visible
¶22. “For possession to be open, notorious, and visible, the possessor must unfurl his flag
on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy
has invaded his domains, and planted the standard of conquest.” Orcutt, 243 So. 3d at 763-64 (¶22) (quoting Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 670 (¶13) (Miss. Ct.
App. 2013)). “The mere possession of land is not sufficient to satisfy the requirement that
the adverse possessor’s use be open, notorious, and visible.” Powell, 203 So. 3d at 652-53
(¶20) (emphasis added) (quoting Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct.
App. 2009)). This Court has upheld a chancellor’s determination that a party’s unrestricted
use and maintenance of a property (even if not daily) was enough to prove this element.
Collins v. Moore Fam. Tr. 1999, 269 So. 3d 181, 190-91 (¶24) (Miss. Ct. App. 2018).
Faulkner enjoyed unrestricted use of her home and shed, and she maintained the property of
each. Further, she made no attempt to conceal her use of the home or shed. See Jordan, 986
So. 2d at 1023 (¶14) (finding the open, notorious, and visible element met when party
maintained and cared for property and “never tried to hide or conceal their use of the
property”). We find substantial evidence supports that Faulkner’s use of her home and her
shed was clearly and convincingly open and notorious.
d. Continuous and Uninterrupted for Ten Years
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¶23. Mississippi’s adverse possession statute states the following:
Ten (10) years’ actual adverse possession by any person claiming to be the
owner for that time of any land, uninterruptedly continued for ten (10)
years by occupancy, descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in every actual
occupant or possessor of such land a full and complete title, saving to persons
under the disability of minority or unsoundness of mind the right to sue within
ten (10) years after the removal of such disability, as provided in Section
15-1-7.
Miss. Code Ann. § 15-1-13(1) (emphasis added). In short, “[s]ection 15-1-13 requires a
claimant to exercise continuous and uninterrupted possession over the disputed property for
at least ten years.” Collins, 269 So. 3d at 191 (¶25). Faulkner’s use of the land containing
her home was certainly continuous. She testified that they expanded the home in
approximately 1980 and that they have lived in it since. Faulkner also stated that the shed
was constructed in approximately 1978 and she has used the shed ever since. We find no
error in the chancellor’s finding that Faulkner clearly and convincingly proved her use of the
land regarding the home and shed met the statutory time requirement
e. Exclusive
¶24. “Exclusive possession means that the possessor evinces an intention to possess and
hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s
conduct must afford an unequivocal indication that he is exercising the dominion of a sole
owner.” Anderson v. Fisher, 296 So. 3d 124, 131 (¶21) (Miss. Ct. App. 2019) (emphasis
added) (quoting Roberts, 118 So. 3d at 671 (¶15)). In short, “[e]xclusivity . . . means that
the adverse possessor’s use of the property was consistent with an exclusive claim to the
right to use the property.” Collins, 269 So. 3d at 191 (¶27) (quoting O’Neal, 220 So. 3d at
16
243 (¶26)).
¶25. The evidence likewise supports that Faulkner’s expansion of her own home and
construction of the shed were clearly and convincingly established as exclusive. The home
was not open to all people at all times. The home belonged to Faulkner and, as is the case
with most homes, was exclusively Faulkner’s to possess. Faulkner’s construction of the
shed, almost wholly on her own property, was consistent with an exclusive claim to that
property. Faulkner testified that the McClintons were not permitted to store things in the
shed without permission. Substantial evidence supports that Faulkner’s use and possession
of the home and shed were clearly and convincingly exclusive.
f. Peaceful
¶26. Finally, “[a]n adverse possessor’s use of a claimed property must be peaceful.”
Fisher, 296 So. 3d at 132 (¶37) (quoting O’Neal, 220 So. 3d at 243 (¶28)). There was no
evidence presented suggesting that Faulkner’s use of the subject land was not peaceful.
Faulkner proved all six elements of the adverse possession analysis concerning her home
expansion and shed. We affirm the chancellor’s decision to award Faulkner adverse
possession of the home and shed.3
3
The partial dissent reminds us to look at the “possessory acts” of Faulkner to determine if the owner of the land was “sufficiently provided notice.” See infra n.5 (citing Signaigo, 398 So. 3d at 926 (¶13)). The Faulkners added onto their home, which extended over to the Fitzpatricks’ property in approximately 1980. Further, the Faulkners built part of their shed over the Fitzpatrick property line in approximately 1978. And those structures have remained in place, over the Fitzpatricks’ property line, for approximately forty-four years. How could these “flying their flag” acts not provide notice that the Faulkners were “claiming” the land as their own? These facts are without dispute and certainly contributed to meeting the clear-and-convincing burden of proof.
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2. Driveway
a. Under Claim of Ownership
¶27. As established, Faulkner must prove that she possessed the driveway land under a
claim of ownership—essentially, that she believed herself to be the owner of that property.
In order to stake claim and establish such, “the possessor must fly [her] flag over the property
in such a way as to put the actual owner on notice that the property is being held under an
adverse claim of ownership.” Orcutt, 243 So. 3d at 763 (¶20) (citing Apperson, 950 So. 2d
at 1117 (¶7)). Faulkner testified that her family put gravel down to form the driveway in
front of her home (that is partly on the Fitzpatricks’ side of the property line) and that they
put a pipe below it as well. But putting gravel down is not sufficient in and of itself to clearly
and convincingly prove adverse possession. Faulkner also testified about trying to “buy the
land” from the Fitzpatricks, although the record does not show the offer’s exact perimeters.
So far as the trial record demonstrates, there is no evidence that Faulkner or her husband
asked for permission from the McClintons to construct a driveway leading to their home.
Faulkner testified:
Q: Were there any discussions with the McClintons about your
construction of the driveway and using it - -A: No.
Q: - - that you know of?
A: No.
Faulkner stated only that they put gravel down and had no discussions about it. Yet, she also
testified:
Q: And did you testify that the McClintons basically allowed you to use
their land?
18
A: Correct.
The evidence is not clear and convincing that Faulkner believed that the driveway area of the
property was hers. It is unclear to this Court whether Faulkner believed the driveway portion
of the land encroachments belonged to her, whether she or her husband asked McClinton for
permission to place the driveway, or whether the other elements of adverse possession were
met. There simply is not enough testimony or evidence to rise to the level of clear and
convincing proof. The burden of proof rested with Faulkner to prove each element of adverse
possession through clear and convincing evidence. See Moore, 46 So. 3d at 384 (¶35)
(quoting Johnson, 928 So. 2d at 892 (¶14)). We reverse the chancellor’s grant of adverse
possession of the driveway for want of clear and convincing evidence.
3. Yard
a. Under Claim of Ownership
¶28. This Court has held that “[n]o claim of ownership existed during any period after [a]
claimant knew that the adjacent parcel belonged to someone else.” Baur, 395 So. 3d at 1266
(¶26) (citing Presley, 290 So. 3d at 767 (¶13)). However, Faulkner failed to present clear
and convincing evidence to demonstrate her belief that she owned the yard. She stated that
her children played on this land, she put a picnic table on it, and the light company installed
a streetlight on it. But trial testimony did not delve deeper into the yard encroachment.
Faulkner was asked when her family began “using that land,” and she stated that the children
began using it in the 1970s. It is unclear exactly which portion of the multiple encroachments
were referred to by use of the general term, “land.” Again, Faulkner testified:
19
Q: And did you testify that the McClintons basically allowed you to use
their land?
A: Correct.
It is unclear to this Court whether Faulkner believed she was the true owner of the yard or
if she was using it with permission from the McClintons. In addition, allowing children to
play on someone’s else land or putting a picnic table on that land is hardly sufficient proof
to meet the requisite elements of adverse possession. We do not find the evidence substantial
enough for the chancellor to find that Faulkner surmounted the clear-and-convincing burden
of proof as to the yard where her children played.
4. Mobile Home
a. Under Claim of Ownership/Actual or Hostile
¶29. This Court will find that “[n]o claim of ownership existed during any period after [a]
claimant knew that the adjacent parcel belonged to someone else.” Id. The record clearly
evidences that Faulkner tried to buy the land on which the mobile home sat multiple times
over the course of twelve years. See Signaigo, 398 So. 3d at 927-28 (¶18) (stating that “the
request of appellant to purchase the land, which was later repeated, is a pointed answer to any
contention of an adverse claim, since it was an acknowledgment of a superior title and claim”
(quoting Eddy v. Clayton, 44 So. 2d 395, 397 (Miss. 1950))). “[P]ermission defeats any
claim of adverse possession.” Roberts, 118 So. 3d at 670 (¶10) (citing Apperson, 950 So. 2d
at 1118 (¶12)). Faulkner indicated in her testimony at trial that she knew that land did not
belong to her:
Q: You didn’t think it was fair that you got permission to place this trailer
and now you were being asked to move it, did you?
20
A: Well, actually, it wasn’t.
Q: It was not fair?
A: It was not fair.
(Emphasis added). “Adverse possession is totally inconsistent with that of permissive use.”
Massey v. Lambert, 84 So. 3d 846, 849 (Miss. Ct. App. 2012) (emphasis added) (quoting
Niebanck v. Block, 35 So. 3d 1260, 1265 (¶15) (Miss. Ct. App. 2010)). The evidence
presented at trial supports the notion that Faulkner asked for permission to place the mobile
home on the Fitzpatricks’ land. It was Faulkner’s burden to prove that she believed the
land was her own and the possession was hostile by clear and convincing evidence. She
simply did not do so as far as the land around the trailer is concerned. This Court does not
find evidence to reasonably support the chancellor’s finding that the mobile home’s land was
adversely possessed by Faulkner. As each adverse possession element is dispositive, she
failed to prove at least one element; therefore, we reverse in part and render judgment that
Faulkner failed to present evidence to support a finding that she adversely possessed the
driveway, the yard, or the mobile home.4
III. In accordance with our holding, we affirm the chancellor’s order
so far as Faulkner’s cross-appeal is concerned.
¶30. Finally, we address Faulkner’s cross-appeal arguing that if the chancellor had erred,
“it was in not granting more land to Faulkner.” (Emphasis omitted). She requested that we
reverse and render “as to the northern portion of the adverse possession grant[.]” Faulkner’s
cross-appeal relies fully on adverse possession being decided fully in her favor. We have
4
In sum, Faulkner building a home and shed over the property line is simply not the same as “using” the land in terms of McClinton’s permission given.
21
held otherwise, leaving her less land than before. Therefore, we affirm the chancellor’s
decision not to award Faulkner additional land northward.
CONCLUSION
¶31. This Court concludes that the chancellor did not err by finding that Faulkner
successfully proved—through clear and convincing evidence—she adversely possessed the
expansion of her home and her shed. We therefore affirm the chancellor on those two
encroachments. However, we hold that it was unreasonable for the chancellor to find that
Faulkner proved by clear and convincing evidence that she adversely possessed the driveway,
yard, or mobile home. We remand to the chancery court for a modified drawing and
recording of the property boundaries to reflect the properties owned by Faulkner and the
properties owned by the Fitzpatricks. We affirm the chancellor’s order so far as Faulkner’s
cross-appeal is concerned.
¶32. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., EMFINGER AND WEDDLE,
JJ., CONCUR. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS,
McDONALD AND LASSITTER ST. PÉ, JJ.
McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:
¶33. When a so-called adverse possessor fails to present the trial court with even the most
basic evidence—like the description of the land they are claiming to own—we cannot uphold
a ruling in their favor and we must reverse.
¶34. The trial court committed multiple legal errors in reaching its decision to award
22
Faulkner property of any amount. First, the trial court utterly failed to apply the correct
standard of proof required in adverse possession cases. Second, the trial court failed to
conduct a full analysis of the mandatory adverse possession elements—failing to apply 3 of
the 6 elements entirely. And to the extent any elements were addressed, the trial court found
the evidence “unclear” and “uncertain.” This alone requires that we reverse and render.
¶35. These colossal failures are unintentionally amplified by the majority opinion. To start,
the majority discusses elements of adverse possession that the trial court never mentioned at
all. Also, the majority mistakes the actual property at issue, conflating the Fitzpatricks’ single
tract of land with Faulkner’s multiple encroachments on that land. So the majority’s analysis
has very little to do with what the trial court actually decided or the meager proof at trial.
¶36. The majority also purports to affirm the grant of adverse possession as to certain areas
of land, and reverse as to others. However, the trial court granted one sole, rectangular area
of land to Faulkner.
¶37. A cursory review of the record reveals a major concern—the gaping hole in
Faulkner’s evidence. The evidence is not only unclear as to what property Faulkner even
seeks to possess, it is also unclear what year she claims her adverse possession began or what
possessory acts she undertook to assert her adverse claim of ownership. The claimant also
failed to present evidence proving that she did not have permission to use the land and that
she had sole use of the land to the exclusion of others. Failing to prove a single element by
clear and convincing evidence dismantles a so-called adverse possessor’s claim and requires
us to reverse and render.
23
¶38. Ultimately, the shortcomings of the claimant and the trial court have left this Court
with no choice but to reverse and render judgment confirming title in the Fitzpatricks.
Therefore, I must respectfully dissent, in part.
I. Faulkner’s permission defeats her adverse possession claim.
¶39. Given the lack of evidence on the very first element of claim of ownership presented
by Faulkner, we must render a judgment denying her adverse possession claim.
A. Permission defeats adverse possession.
¶40. Our “Supreme Court has . . . established a six-part test to determine whether adverse
possession has occurred.” Jordan v. Fountain, 986 So. 2d 1018, 1021 (¶6) (Miss. Ct. App.
2008). Failure to prove even one element is fatal to the claim. See Baur v. Ribelin, 395 So.
3d 1258, 1266 (¶25) (Miss. Ct. App. 2024). And, the “analysis is extremely fact-intensive
with a high burden of proof.” See Johnson v. Cleveland, No. 2023-CT-01011-SCT, 2026 WL
2271727, at *10 (¶51) (Miss. Aug. 6, 2026) (Branning, J., dissenting) (citing Roy v. Kayser,
501 So. 2d 1110 (Miss. 1987)).
¶41. The undisputed testimony from the claimant herself shows her family’s use of the land
began with permission from the original owner.
¶42. Under the claim of ownership element, Faulkner cannot prevail because she knew who
her adjacent neighbors were, her family’s use of the land began with permission, and she did
not present evidence of possessory acts that were sufficient to put the McClintons or
Fitzpatricks on notice.
¶43. “When determining whether an adverse possessor has staked a proper claim of
24
ownership, the relevant inquiry is whether the possessory acts relied upon by the would-be
adverse possessor are sufficient to fly his flag over the lands and to put the record title holder
on notice that the lands are held under an adverse claim of ownership.” Signaigo v.
Grinstead, 398 So. 3d 922, 926 (¶11) (Miss. Ct. App. 2024) (quoting Franco v. Ferrill, 342
So. 3d 1176, 1188-89 (¶30) (Miss. Ct. App. 2022)).
¶44. “Occasional use of someone else’s property without an enclosure does not pass the
test of adverse possession.” O’Neal v. Blalock, 220 So. 3d 234, 242 (¶24) (Miss. Ct. App.
2017) (quoting Ellison v. Meek, 820 So. 2d 730, 736 (¶21) (Miss. Ct. App. 2002)). And,
“[s]poradic use of another’s property does not constitute open and notorious possession.” Id.
(quoting Ellison, 820 So. 2d at 736 (¶21)).
¶45. And precedent from “earlier cases still required that the adverse possessor claim the
land to the exclusion of all others.” Signaigo, 398 So. 3d at 927 (¶16). “[W]e have held that
joint use is insufficient to establish adverse possession.” Alford v. Cotton Row Hosp. LLC,
369 So. 3d 1016, 1031 (¶50) (Miss. Ct. App. 2023) (quoting Riverland Plantation P’ship v.
Klingler, 942 So. 2d 294, 298 (¶14) (Miss. Ct. App. 2006)).5
¶46. Faulkner’s testimony at trial was that her family undoubtedly knew the McClintons
5
And again, “[a] review of recent caselaw shows that one’s belief that he owns the property at issue is a factor in whether the party has a claim of ownership;” however, “[b]elief alone is not dispositive.” Signaigo, 398 So. 3d at 926 (¶13) (emphasis added). Rather, “nearly every case analyzing adverse possession looks at a party’s possessory acts to determine if he sufficiently provided notice to the record title owner that another party is holding his land under an adverse claim.” Id.
25
owned the land around her property.6 Faulkner repeatedly conceded she was jointly using the
property. For instance, she specifically testified:
[Counsel]: You testified I believe in your deposition that y’all had a pretty
good relationship with the McClintons; correct?
[Faulkner]: We did.
[Counsel]: Y’all were friendly neighbors?
[Faulkner]: We were.
[Counsel]: And did you testify that the McClintons basically allowed you
to use their land?
[Faulkner]: Correct.
(Emphasis added). On cross-examination, she testified:
[Counsel]: Now, Ms. Faulkner, you testified in your deposition that George
Mc[C]linton had a good relationship with your husband,
Clarence; correct?
[Faulkner]: Correct.
[Counsel]: And that your family was allowed to use the land in any way
that they needed to so as long as you kept it up; correct?
[Faulkner]: Correct.
[Counsel]: And you used the land; correct?
[Faulkner]: Correct.
[Counsel]: And you testified about your use of the land today; correct?
[Faulkner]: Correct.
[Counsel]: And pursuant to that agreement to use the land, you did
keep the land up, didn’t you?
[Faulkner]: I did.
[Counsel]: Now, no one ever told you to stop using the land, did they?
[Faulkner]: Did not.
6
As an example, she stated during her testimony: “. . . at the time we - - we actually had thought that that were out property up until a certain - - over to a certain point to that - -that stake we talking about. We actually thought our land ended there and that they - - the McClintons had put that stake there to show us the end of our land, where it began and ended.” She also testified:
[Counsel]: . . . these activities that you're describing about use of that land,
when did it start? When did y’all start using that land?
[Faulkner]: Actually, the children used it mostly. . . . The 70’s . . . After I
moved there. The children were old enough to play outside.
26
[Counsel]: And you knew that Cloteal Fitzpatrick was the contact or
point-person concerning the land that was directly next to
your house; correct?
[Faulkner]: Correct.
[Counsel]: And she never told you to stop using the land; correct?
[Faulkner]: Correct.
(Emphasis added). She further conceded during cross-examination:
[Counsel]: And y’all discussed encroachments and the boundaries of the
land at issue in that meeting; correct?
[Faulkner]: Correct.
[Counsel]: And in that meeting, you also told her that you had been trying
to buy the land from her for 12 years; correct?
[Faulkner]: Correct. . . . I asked her several times, you know, to sell the - -would she sell the land to me.
(Emphasis added).7
¶47. At trial, Faulkner admitted she did not exclude the property owners:
[Counsel]: [Y]ou never stopped [Cloteal Fitzpatrick] from doing anything
like coming on your land; correct?
[Faulkner]: Correct.
[Counsel]: And you never stopped her from having access to your
property; correct?
[Faulkner]: Correct.
[Counsel]: And you never put up a fence around the trailer or the land at
issue, did you?
[Faulkner]: I did not.
[Counsel]: And you never put up any “Keep Out” signs telling the
Fitzpatricks or anyone else in their family to stay away, did you?
[Faulkner]: I did not.
[Counsel]: So they had full access to the property; correct?
[Faulkner]: Correct.
7
The transcripts also reveal that during Faulkner’s cross-examination, she was asked, “So when y’all had the meeting talking about the trailer and [Cloteal’s] talking about building a community center, was there not a request for the trailer to be moved?” Faulkner answered, “I don’t remember a request. I’m still asking her would she sell the land to me.” (Emphasis added).
27
(Emphasis added).8
¶48. Faulkner clearly knew that the adjoining property was owned by the McClinton family
and then subsequently passed to the Fitzpatricks, Cloteal specifically. And her claim is
further defeated by the repeated admissions that she never excluded the McClintons or the
Fitzpatricks from the land she claims to possess.
¶49. To the extent she attempts to rely on her belief that the section of land up to the
“spike” in the ground was part of her property from the time of their purchase, we find her
belief of ownership not sufficient. Because Faulkner had permission for the uses she claims,
the owners were not placed on notice that she was attempting to claim the property adversely
as her own.
B. The bounds of the property in dispute.
¶50. There is also a glaring disparity between the property in dispute as it was stated in
Faulkner’s complaint and the property in dispute as it was later explained at trial, as
8
During cross-examination, she further conceded:
[Counsel]: She changed her mind about allowing you to keep the trailer on
the land, didn’t she?
[Faulkner]: You know, I really don’t remember whether we got in a dispute
about her - - me not keeping the land - - you know, the trailer
there. . . .
[Counsel]: You didn’t think it was fair that you got permission to place this
trailer and now you were being asked to move it, did you?
[Faulkner]: Well, actually, it wasn’t.
[Counsel]: Now, you didn’t think it was fair because you never stopped her
from doing anything like coming on your land; correct?
[Faulkner]: Correct.
28
demonstrated through counsel’s reference to portions of Faulkner’s pre-trial deposition and
during witness testimony.9 Faulkner’s complaint lists the disputed property according to the
description in the deed, encompassing the entire 39.4 acres of the parcel.
¶51. But a different version was expressed throughout her testimony at trial, limiting the
property to a smaller section (and through her counsel’s on-the-record arguments to the trial
judge). She based her claim on the presence of a “spike” or “stake.” Her trial testimony
reflects:
[Counsel]: In the ‘70s when y’all moved in, did y’all see something over
there in the vicinity of those pine trees that indicated to you what
the property line was? . . . Did you see a spike over there
somewhere?
[Faulkner]: I did.
[Counsel]: Okay. Where was the spike?
[Faulkner]: The spike was out - - out from my house near Gravel Springs
Road, near the roadside going toward where the pine trees were.
[Counsel]: . . . What did you understand when you and your husband
moved into the property of what that spike signified?
[Faulkner]: The end of our property. . . . we actually had thought that that
were out property up until a certain - - over to a certain point to
that - - that stake we talking about. We actually thought our land
ended there and that they - - the McClintons had put that stake
there to show us the end of our land, where it began and ended.
¶52. Put simply, the testimony from trial reflects the land she sought to own was “a block
of property up here to the north of you guys between the spike and your house;” not the
9
Her complaint lists: “The Petitioner’s house and a separate trailer house are built upon or located on the property in question. . . . Further, the Tate County Tax Assessor’s Map of the property in question shows the Petitioner’s house and separate trailer house built or located on the property in question.”
29
whole 39.4-acre parcel.10
¶53. Taking her arguments on appeal into account, she only seems to consistently allege
a claim for the area from her house up to the area of the tree-line or the Fitzpatricks’ new
gravel driveway. Therefore, the proper test is to apply the elements only to this limited
portion. But as set out above, any use was permissive in nature.
¶54. Having found that Faulkner failed to demonstrate by clear and convincing evidence
at least one of the elements essential to an adverse possession claim, there is no need to go
further in the analysis.11
II. The trial court’s legally erroneous ruling.
¶55. It is well established under Mississippi law that “the party alleging adverse possession
must prove each of [the] elements by clear and convincing evidence.” Edwards v. Williams,
292 So. 3d 586, 591-92 (¶33) (Miss. Ct. App. 2019) (emphasis added). And just as important,
“[t]he chancellor must find that the plaintiffs proved each element of their claim by clear
and convincing evidence.” Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7)
10
This is a problem for several reasons. First, we have no proof of where this “stake” is in comparison to the property bounds. Second, Faulkner never states how far east or west this “block” of land extends. Third, she did not even provide the deed to the property her family bought, and the Fitzpatricks’ 2018 deed (which is the only deed in the record) makes clear that none of this 39.4 acres of property was listed in her deed. Furthermore, she does not provide any evidence or support showing why or where her family got the idea that the “stake” was the demarcation line for her property.
11
“It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon ‘to go to law’ to protect his rights.” Burnham, 174 So. 3d at 293 (¶26) (quoting Patterson v. Harris, 239 Miss. 774, 785-86, 125 So. 2d 545, 550 (1960)). The moment Cloteal found out Faulkner’s trailer home was entirely on her property, she confronted Faulkner and acted to protect her property.
30
(Miss. Ct. App. 2013) (emphasis added) (citing Blackburn v. Wong, 904 So. 2d 134, 136
(¶16) (Miss. 2004)).
¶56. Critically, upon a review of the record, it is undeniable that the phrase “clear and
convincing evidence” does not appear anywhere within the court’s bench ruling.12
¶57. The lack of clear and convincing evidence is shown in several instances.
¶58. When discussing the issue of permission, the chancellor plainly states, “It was not
real clear about what permission the McClintons gave them to be able to use this property,”
and speculated, “The property over to the tree line or over to where the gravel drive is right
now or maybe even more than that. I don’t know.” (Emphasis added).
¶59. In trying to determine where Faulkner’s structures and property lines were located,
the chancery court stated, “I’m not real sure because I can’t tell exactly where their original
house ended and where this new addition began, but it kind of looks like to me that maybe
even some of their original house may have been encroaching onto the other property.”
(Emphasis added).
¶60. Then later, the chancellor specifically found, “The part of the property where the
mobile home is gives me a little more pause[.]” (Emphasis added).
¶61. From these three examples alone, the chancery court’s own statements demonstrate
that the evidence was far from “clear and convincing.” Instead, the court found the evidence
12
We address the trial court’s oral ruling because the final judgment that was entered post-trial provides one thing and one thing only—the boundary description and metes and bounds for the section of property the chancellor “granted fee-simple ownership of” to Faulkner “north of her existing property line[.]” There is not a single reference to the underlying adverse possession claim or to any written factual findings by the trial court.
31
to be unclear, confusing, and subject to several interpretations—the opposite of “clear and
convincing.” As the Fitzpatricks rightly contend on appeal, this expression of uncertainty
directly contradicts the requirement that proof for adverse possession claims be “so clear,
direct, and weighty” in order “to enable the fact[-]finder to come” to a firm “conviction,
without hesitancy.” Moran v. Fairly, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005) (Clear
and convincing evidence is “that weight of proof which produces in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be established,
evidence so clear, direct and weighty and convincing as to enable the fact[-]finder to come
to a clear conviction, without hesitancy, of the truth of the precise facts of the case”).
¶62. Again, because the trial court did not reduce its factual findings on the elements to a
written order, this is the best we can ascertain as to the trial court’s ruling. It is simply not
near the standard required to take property away from a landowner.
¶63. Similarly, the chancery court’s ruling does not use the word “burden”—at all. To be
clear, not one time does the chancery court acknowledge that the claimant has the burden of
proving the elements for adverse possession, let alone that the claimant’s burden is proof by
clear and convincing evidence. At no point does the chancellor place the burden on Faulkner,
who seeks to take land.13
13
The chancellor seems to discuss in generalizations the proof needed to establish adverse possession, and then makes abstract, non-specific evidentiary findings. The transcripts reflect the following findings in particular:
- “there are six elements that have to be proved for adverse possession;”
- “I am convinced that Ms. Faulkner and the Faulkners themselves have
adversely possessed over onto this 39-acre tract;”
- “their adverse possession started a long time ago and it has fully been
32
The chancery court failed to apply the six-element test for adverse possession.
¶64. Additionally, it is apparent from the face of the transcripts that in making its bench
ruling, the chancery court failed to apply all six elements of adverse possession before
awarding property to Faulkner.
¶65. The chancellor mentioned “claim of ownership,” “actual and hostile,” and “open,
notorious, and visible,” which are half of the required elements. However, the transcripts
reveal the chancellor left out the other 3 elements entirely, those being: “continuous and
uninterrupted for 10 years,” “exclusive,” and “peaceful.” But even still, the chancery court’s
findings fall short of the proof needed for cases of this type:
Very clearly, the construction of the house over on the property is under a
claim of ownership. They built a house on it. It wasn’t just like they were
having a garden over there or something, which is, a lot of times, I hear
adverse possession cases over somebody building a fence over there or having
a garden or just mowing the yard and the kids playing in it. This is more than
that. They actually built an addition to their house that encroaches on the
now-Fitzpatrick property.
And it’s obviously actual and hostile and open and notorious and visible. They
didn’t do anything to hide the fact that they put a house over on this property.
(Emphasis added). The transcripts reflect that the court determined:
accomplished;”
- “very obvious from the survey and from the testimony;”
- “very clearly, the construction of the house over on the property is
under a claim of ownership;”
- “obviously actual and hostile and open, notorious and visible;”
- “So I am going to find that all the elements of adverse possession have
been established, but I’m not going to give them - - I’m not going to
give Ms. Faulkner adverse possession all the way over to the gravel
driveway;”
- “that is basically the area that I am going to find that they have
adversely possessed[.]”
33
After hearing all of the testimony, I am convinced that Ms. Faulkner and the
Faulkners themselves have adversely possessed over onto this 39-acre tract
that is owned now by Mr. and Mrs. Fitzpatrick, and their adverse possession
started a long time ago and it has fully been accomplished.
(Emphasis added).
¶66. That’s it—that is the extent of the assessment made by the chancery court before it
concluded that adverse possession had occurred. Therefore, the chancery court’s ruling
“find[ing] that all the elements of adverse possession have been established” must fail as a
matter of law.14
III. The majority reaches conclusions not addressed by the chancery
court.
¶67. One may get the feeling from the majority’s opinion that there are five parcels of land
at issue. But there is not. There is only one parcel—a 39.4 acre tract for which the
Fitzpatricks are the owners of record.
¶68. The “encroachments” ascertained by the majority are areas where the Faulkners
erected structures extending over the boundary line between their property and the adjoining
property.15 These “encroachments” seem to be examples of possessory acts that Faulkner
14
Moreover, both parties agree the chancery court erred in its grant of property to Faulkner. But the Fitzpatricks’ direct appeal argues the ruling was error because Faulkner should not have been awarded ANY of the property in dispute. Conversely, on cross-appeal Faulkner argues the chancery court erred because she should have been granted the entirety of the area she believed she owned from the beginning, which extended up to the “spike” in the ground.
15
In Black’s Law Dictionary, to “encroach” means “1. To enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude. 2. To gain or intrude unlawfully upon the lands, property, or authority of another.” Encroach, Black’s Law Dictionary 666 (12th ed. 2024).
34
raises as evidence of her claim of ownership, and actual and hostile possession.
¶69. And that “[t]he land survey displayed five ‘encroachments’” is a mischaracterization
by the majority—and by Faulkner who proffered on appeal, “At issue in the case were five
encroachments[.]”
¶70. First, where the word “ENCROACHMENTS” is displayed on the survey, there are
arrows pointing to only 3 items: Faulkner’s house, Faulkner’s shed, and Faulkner’s
“abandoned mobile home.” Second, the Faulkner’s driveway appears to straddle the property
line, but this driveway was not labeled an encroachment on the survey. Third, nothing on the
survey denotes what the majority calls “the northern portion of Faulkner’s yard.” (And what
Faulkner characterizes as “the area Faulkner used as her yard to the north of her house.”)
¶71. But more concerning, the majority based its adverse possession analysis wholly on this
misunderstanding. The majority segmented the 39.4-acre disputed parcel into 5 separate
“areas” and then applied the six-element adverse possession test to each area separately. In
doing so, the majority ends up considering elements that the chancery court never reached,
and making findings that the chancery court never found. Specifically, there are no findings
for this Court to be able to review pertaining to the possession being continuous and
uninterrupted for 10 years, exclusive, and peaceful.16
¶72. Furthermore, the majority reaches the conclusion: “This Court concludes that the
chancellor did not err by finding that Faulkner successfully proved—through clear and
convincing evidence—she adversely possessed the expansion of her home and her shed.”
16
Under its analysis of “Faulkner’s Home and Shed,” the majority goes through each of the six elements for adverse possession.
35
(Emphasis added). But it never addresses the underlying question as to whether the
chancellor actually found Faulkner met her burden of proof by clear and convincing
evidence. As set out above, the trial court never applied this standard, and the record portrays
that the trial court actually though the proof was “unclear” and “uncertain.”
¶73. This Court previously explained that “[a] review of recent caselaw shows that one’s
belief that he owns the property at issue is a factor in whether the party has a claim of
ownership.” Signaigo, 398 So. 3d at 926 (¶13). However, “[b]elief alone is not dispositive.
Indeed, nearly every case analyzing adverse possession looks at a party’s possessory acts to
determine if he sufficiently provided notice to the record title owner that another party is
holding his land under an adverse claim.” Id. (Emphasis added).17 Therefore, the majority
improperly relies on Faulkner’s belief alone throughout its discussion regarding adverse
possession.
Conclusion
¶74. In sum, there is not a shred of evidence that Faulkner “unfurled her flag,” kept it
flying, and put the McClintons or Cloteal Fitzpatrick on any notice that she was asserting an
adverse claim of ownership.
¶75. As our Supreme Court eloquently stated back in 1960:
The law should, and does, encourage acts of neighborly courtesy. A landowner
17
At the conclusion of its analysis, the majority drops in a footnote: “In sum, Faulkner building a home and shed over the property line is simply not the same as ‘using’ the land in terms of McClinton’s permission given.” But it wholly fails to back-up this assertion with citation to any authority; there is none. Also in particular, for the “driveway” area, the majority states that Faulkner is required to prove “a claim of ownership— essentially, that she believed herself to be the owner of that property.” (Emphasis added).
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who quietly acquiesces in the use of a path, or road, across his uncultivated
land, resulting in no injury to him, but in great convenience to his neighbor,
ought not to be held to have thereby lost his rights.
Burnham v. Kwentus, 174 So. 3d 286, 293 (¶26) (Miss. Ct. App. 2015) (emphasis added)
(quoting Patterson, 239 Miss. at 785, 125 So. 2d at 550).
¶76. The essence of Cloteal Fitzpatrick’s testimony at trial was that she and her
grandfather, George McClinton, allowed the Faulkners to use their property on Gravel
Springs Road “not because they believed [Faulkner] had a right to use the [property], but
because they wanted to be kind neighbors.” Id.
¶77. In conclusion, “it goes without saying that reversing a chancellor’s findings and
holdings is something this Court approaches with much trepidation. However, in cases such
as this, this Court often finds itself in a situation where it must reverse these decisions or else
aid in an injustice and further perpetuate a wrongful view of the laws of this State.” Gillespie
v. Kelly, 809 So. 2d 702, 706 (¶12) (Miss. Ct. App. 2001). There cannot be a shortcut to
obtaining land through adverse possession.
¶78. We must reverse and render the ruling of the chancery court here or else we will be
aiding in the injustice against the rights of property owners.
WESTBROOKS, McDONALD AND LASSITTER ST. PÉ, JJ., JOIN THIS
OPINION.
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