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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-CA-00685 COA MATTIE LAKE, EXECUTRIX OF THE ESTATE OF SUSIE DURHAM v. ROBERT JACOBS AND MARILYN K. JACOBS APPELLANT

APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 1/17/95 HON. WILLIAM J. LUTZ MADISON COUNTY CHANCERY COURT GAIL SHAW- PIERSON DEWEY HEMBREE CIVIL - REAL PROPERTY COURT RULED THAT PLAINTIFFS AQUIRED RIGHTS TO PROPERTY AS A RESULT OF ADVERSE POSSESSION. AFFIRMED - 1/27/98

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

2/27/98

EN BANC HERRING, J., FOR THE COURT: This case involves a boundary dispute and a claim of adverse possession. Mattie Lake appeals in her capacity as the executrix of the estate of her mother, Susie Durham, deceased, from a judgment of the Chancery Court of Madison County, Mississippi. The judgment confirmed title to certain realty in the Appellees, Robert Jacobs and wife, Marilyn K. Jacobs. Lake contends that (1) the trial court erred when it admitted into evidence the deposition testimony of Randolph Brown, deceased, which had been taken in a different and prior proceeding, and (2) that the judgment of the trial court was manifestly wrong and against the overwhelming weight of the

evidence, because Mr. and Mrs. Jacobs presented insufficient evidence of adverse possession. We affirm the decision of the trial court. A. THE FACTS Robert and Marilyn Jacobs originally filed this action on October 12, 1993, against Susie Durham and other unknown persons claiming an interest in approximately 64.67 acres in Madison County, Mississippi, less and except a parcel of land containing 1.022 acres which had been the subject of prior litigation between Mr. and Mrs. Jacobs and relatives of Susie Durham. The Appellees also originally claimed title to the 1.022 acres and filed suit to protect their title to the property. However, the litigation was settled, and Mr. and Mrs. Jacobs relinquished their claim to the 1.022 acres in consideration of the sum of $5,000. In their present action, Mr. and Mrs. Jacobs sought to confirm their title to the acreage in question and to establish an old fence line on the west side of their 64.67 acres as the boundary line between their property and the acreage owned by Susie Durham. In this regard, the Appellees claimed that they and their predecessors in possession had the 64.67 acres under fence for many years and had openly and notoriously claimed as their own all property lying east of the fence in dispute.(1) Mr. and Mrs. Jacobs contend that the fence in question was installed on or about 1930, just west of an old wagon road and west of a house built by Lula Collins Evans at that time. According to the deposition of Randolph Brown, deceased, which was taken for trial purposes in prior litigation on August 4, 1988, the house of Lula Evans was ultimately torn down, and the wagon road fell into disuse, but the boundary line fence remained. On the other hand, the estate of Susie Durham, deceased (which was substituted as a party in these proceedings after the death of Susie Durham), contends that the fence line in question encroaches upon that portion of a 280 acre tract of land owned by the estate which lies east and south of Mount Pilgrim Road. As shown on Tyner's plat, the fence in question runs in a north to south direction. Indeed, an inspection of Tyner's plat clearly indicates that a small portion of the property claimed by Mr. and Mrs. Jacobs encroaches upon the property which all parties agree was originally owned by Susie Durham, deceased. It is noteworthy that while the description of the 64.67 acres claimed by Mr. and Mrs. Jacobs, as described in their complaint and on Tyner's plat, lies only within the south one-half (S 1/2) of Section 35, Township 11 North, Range 4 East, Tyner's plat clearly shows that a small portion of the property (possibly as much as five acres), claimed by the Appellees lies in a portion of Section 34, which was originally owned by Ms. Susie Durham. Thus, it is apparent that Mr. and Mrs. Jacobs are claiming by adverse possession that portion of the 64.67 acres which lies east of the fence line and west of the west line of the northeast quarter of the southwest quarter (NE 1/4 SW 1/4) of Section 35, all as shown on Tyner's plat. The estate of the decedent does not contest the ownership of that portion of the 64.67 acres which actually lies within Section 35. Mr. and Mrs. Jacobs acknowledge in their complaint that a portion of their claim of ownership is based upon the principle of adverse possession, and they assert that they and their predecessors in possession had uninterruptedly held open and notorious possession of the entire 64.67 acre tract, from fence to fence, since around 1930. On the other hand, Ms. Durham's estate contends that the disputed fence was installed with the decedent's permission no earlier than twenty years prior to the decedent's death, by Walter Scott, a neighbor, who wanted to graze his livestock in an enclosed area.

According to her family members, Ms. Durham gave Scott permission to erect the fence for this limited purpose. Susie Durham deeded 1.022 acres of disputed land to her grandson, Percy Lee Johnson, in 1987. As shown by Tyner's plat, approximately one acre of this property lies east of the disputed fence and therefore constituted a portion of the property claimed by Mr. and Mrs. Jacobs by adverse possession. Percy Lee Johnson, a member of the armed services, and his wife, Sheila, arranged for Jim Walter Homes, Inc., to build a house on the 1.022 acres for their use when they moved back to Mississippi. In the process, Jim Walter Homes acquired a mortgage on the premises to secure the loan which Mr. and Mrs. Johnson procured from Jim Walter Homes to finance the house construction. When Mr. and Mrs. Jacobs discovered that a house was being constructed upon the land which they claimed as their own, they filed suit against the Johnsons and Jim Walter Homes to enjoin construction of the Johnson house and to quiet their title and ownership to the disputed premises. At the time of this action, Mr. and Mrs. Johnson lived outside of Mississippi, but the attorneys who purportedly represented Jim Walter Homes as well as Mr. and Mrs. Johnson settled the boundary dispute with Mr. and Mrs. Jacobs. Mr. and Mrs. Jacobs were paid the sum of $5,000 in exchange for their special warranty deed finally relinquishing any claim to the 1.022 acres. The issues in the lawsuit involving Mr. and Mrs. Johnson and Jim Walter Homes involved issues almost identical to the issues which are involved in the case sub judice. The primary issue in the Johnson-Jacobs proceeding was whether the old fence line now in dispute constituted the western boundary of the Jacobs property, or whether Susie Durham's property extended eastward to the eastern boundary line of Section 34, Township 11 North, Range 3 East, Madison County, Mississippi. During the Johnson-Jacobs proceedings, the deposition of Randolph "Cap" Brown was taken in 1988. Brown was ninety-two years old at the time and was bedridden. He had lived on Mount Pilgrim Road for many years and owned property adjoining the 64.67 acres. Mr. Brown is now deceased. His testimony dealt almost exclusively with whether or not the fence line now in dispute was the historic boundary line between the property owned by Susie Durham and the Jacobs property. Mr. Brown emphatically stated that the fence line had been treated as the boundary line between the two properties for many years by predecessors in title to Mrs. Durham and predecessors in possession to Mr. and Mrs. Jacobs. In the case sub judice, Mr. and Mrs. Jacobs sought to admit Brown's deposition testimony into evidence pursuant to Mississippi Rule of Evidence 804 (b)(1). Susie Durham's estate objected to the deposition, contending that Susie Durham was not a party to the Johnson-Jacobs litigation and, thus, did not have an opportunity to cross-examine or otherwise develop Brown's testimony. The trial court, Chancellor Ray H. Montgomery presiding, overruled the estate's objection and allowed the deposition of Brown into evidence, holding that pursuant to Rule 804(b)(1), Mr. and Mrs. Johnson and Jim Walter Homes, Inc. were predecessors in interest to the decedent, Susie Durham. Other witnesses, including Mattie Lake (the daughter of Susie Durham) and Percy Lee Johnson, supported the position of the estate of Mrs. Durham that she had allowed the fence to be erected for the sole purpose of allowing a friend to graze cattle on the property. Mr. Johnson also stated that his previous litigation with Mr. and Mrs. Jacobs had been settled without his knowledge or consent.

B. DISPOSITION BY TRIAL COURT After considering all of the evidence presented, Chancellor Montgomery ruled in favor of Mr. and Mrs. Jacobs by opinion dated December 30, 1994, and established the fence line in question as the boundary line between the Durham-Jacobs properties. The final judgment, consistent with Chancellor Montgomery's opinion, was executed by the new Chancellor, William J. Lutz, and was filed on January 17, 1995, after being submitted to both counsel for criticism as to form. Thereafter, the estate of Susie Durham filed a motion for a new trial on January 27, 1997, pursuant to Mississippi Rule of Civil Procedure 59, in which the estate contended that the chancellor's decision was (1) manifestly wrong and against the overwhelming weight of the evidence, (2) that the judgment was not supported by competent evidence, and (3) that the trial court erred in admitting the deposition of Randolph Brown into evidence over the objection of Ms. Durham's estate. Chancellor Lutz issued a three page opinion and order addressing the motion for a new trial on June 19, 1997, in which he analyzed Mississippi Rule of Evidence 804(b)(1) as it applied to this case. The chancellor concluded that the Johnson-Jacobs case and the Jacobs-Durham case had many factual and legal similarities and dealt with an "identical" factual issue: whether or not Mr. and Mrs. Jacobs possessed the land east of the disputed fence line (which they believed to be the boundary line) by adverse possession. In addition, after concluding that the deposition of Randolph Brown was admissible, the chancellor finally ruled that the original judgment rendered by Chancellor Montgomery was supported by competent evidence and denied the motion for a new trial. C. THE ISSUES The estate of Susie Durham, deceased, raises the following two issues, which are taken verbatim from its brief: I. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE DEPOSITION TESTIMONY OF RANDOLPH BROWN OVER THE OBJECTION OF SUSIE DURHAM, WHERE THE DEPOSITION TESTIMONY HAD BEEN SECURED IN A SEPARATE PRIOR PROCEEDING IN WHICH THE DEFENDANT SUSIE DURHAM WAS NOT A PARTIES [SIC] AND HAD HAD NO OPPORTUNITY TO CROSS EXAMINE THE WITNESS AND DEVELOP THE TESTIMONY. II. WHETHER THE JUDGMENT OF THE LOWER COURT WAS MANIFESTLY WRONG AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE WHERE THE PLAINTIFFS FAILED TO PRESENT EVIDENCE TENDING TO ESTABLISH POSSESSION WHICH IS (1) OPEN, NOTORIOUS AND VISIBLE; (2) HOSTILE; (3) UNDER A CLAIM OF OWNER SHIP; (4) EXCLUSIVE; (5) PEACEFUL; AND (6) CONTINUOUS AND UNINTERRUPTED FOR A PERIOD OF TEN (10) YEARS. D. ANALYSIS I. DID THE CHANCERY COURT ERR WHEN IT ADMITTED THE DEPOSITION

OF RANDOLPH BROWN INTO EVIDENCE OVER THE OBJECTION OF THE APPELLEE? The decision to admit or exclude evidence is generally left to the discretion of the trial court. Young v. City of Brookhaven, 693 So. 2d 1355, 1358 (Miss. 1997). An appellate court will only reverse an evidentiary ruling if the trial court has abused its discretion or applied an incorrect legal standard. Id. at 1358. Moreover, in order to justify a reversal, a denial of a substantial right of a party must have occurred as a result of the court's evidentiary ruling. See Mississippi Rule of Evidence 103(a). In the case sub judice, the chancellor admitted into evidence the deposition testimony of Randolph Brown, pursuant to Mississippi Rule of Evidence 804(b)(1), which states: (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (emphasis added). The official Comment to Rule 804 (b)(1) notes that "an essential ingredient of the exception has always been the unavailability of the declarant . . ." and ". . . that the party against whom it [the former testimony] is directed had a similar motive and an opportunity to develop the testimony on the previous occasion." Mr. Brown was unavailable to testify in this case because he died prior the trial of this action. Thus, we must determine whether a predecessor in interest to the estate of Susie Durham, deceased, had an opportunity and similar motive to develop Brown's testimony in the prior proceeding involving Mr. and Mrs. Jacobs, Mr. and Mrs. Johnson, and Jim Walter Homes, Inc. Neither Mississippi Rule of Evidence 804 nor its official Comment provide a precise definition of a "predecessor in interest." Federal Rule of Evidence 804(b)(1) is identical to Mississippi Rule of Evidence 804(b)(1). In such a situation, we normally seek to determine how the federal courts have interpreted their evidentiary rule prior to making our decision as to the applicability of an identical Mississippi evidentiary rule. Brent v. State , 632 So. 2d 936, 943 (Miss. 1994). A case frequently cited as to the applicability of Federal Rule of Evidence 804(b)(1) and as to what constitutes a "predecessor in interest" is Lloyd v. American Export Lines, Inc., 580 F. 2d 1179 (3rd Cir. 1978). In Lloyd, the Third Circuit stated: . . . if it appears that in the former suit a party having a like motive to cross examine about the same matter as the present party would have, was accorded an adequate opportunity for examination, the testimony may be received against the present party. Under these circumstances, the previous party having a like motive to develop the testimony about the same material further is, in the first analysis, a predecessor in interest to the present party. (emphasis added). Id. at 1187 (quoting McCormick, Handbook of the Law of Evidence

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