Melchester Phillips Jr., Sarah Phillips, Keith Phillips, Nikki Hobson, Gail Camper, Carolyn Mojgani, Carlos Wilborn, Christopher Wilborn, Kim Wilborn, Michael Watts, Mark Watts, Tracy Wilborn, Eddie Young III, Cheryl Young, Carol Sutton, Lynette Myers, Kevin Smith, Mary Smith, Morris Louisville, Shanina Bridges, Natasha Smith, Brian Smith, Nakia Jupiter, Ahamad Smith, Jesse Bouchee Jr., Stephanie Rahnamah, Larry Bouchee, Thomas Bouchee, Heirs of Gloria Jean Bouchee, Heirs of Marian Bouchee and Heirs of Morris Smith v. Forrest County Industrial Park Commission

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-01132-COA

MELCHESTER PHILLIPS JR., SARAH PHILLIPS, APPELLANTS
KEITH PHILLIPS, NIKKI HOBSON, GAIL
CAMPER, CAROLYN MOJGANI, CARLOS
WILBORN, CHRISTOPHER WILBORN, KIM
WILBORN, MICHAEL WATTS, MARK WATTS,
TRACY WILBORN, EDDIE YOUNG III, CHERYL
YOUNG, CAROL SUTTON, LYNETTE MYERS,
KEVIN SMITH, MARY SMITH, MORRIS
LOUISVILLE, SHANINA BRIDGES, NATASHA
SMITH, BRIAN SMITH, NAKIA JUPITER,
AHAMAD SMITH, JESSE BOUCHEE JR.,
STEPHANIE RAHNAMAH, LARRY BOUCHEE,
THOMAS BOUCHEE, HEIRS OF GLORIA JEAN
BOUCHEE, HEIRS OF MARIAN BOUCHEE AND
HEIRS OF MORRIS SMITH

v.

FORREST COUNTY INDUSTRIAL PARK APPELLEE
COMMISSION

DATE OF JUDGMENT: 09/15/2023
TRIAL JUDGE: HON. CHASE FORD MORGAN
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: URSULA KATRINA MITCHELL
ATTORNEY FOR APPELLEE: CHRISTOPHER M. HOWDESHELL
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 01/21/2025
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. The Appellants1 appeal from the Forrest County Chancery Court’s judgment finding

1
Melchester Phillips Jr., Keith D. Phillips, Nikki Devona Hobson, Sarah Y. Phillips,
Gail Camper (also known as Gail Louise Camper), Mary F. Bouchee, Nichole Gabrielle
that the Forrest County Industrial Park Commission (the Commission) acquired title to two

acres of land by adverse possession and dismissing the Appellants’ counterclaims for

trespass, unlawful withholding of the property, and unjust enrichment.

¶2. Finding no error, we affirm the chancery court’s judgment.

FACTS

¶3. This case involves two acres of real property located in Forrest County, Mississippi.

On October 13, 1945, D.H. Baker executed an administrator’s deed conveying the two acres

to Luther Bouchee and Carrie Bouchee. The deed set forth the following legal description

of the land:

Begin at the Southwest corner of the [northeast quarter] of the [northwest
quarter] of the [southwest quarter] of Section 35, Township 4 North, Range 13
West, and run N for 127 feet; thence East for 212.5 feet; thence North for 205
feet; thence East for 181.1 feet; thence South for 332 feet; thence West for
393.6 feet to the point of beginning, containing 2 acres, more or less, and being
in the [northeast quarter] of the [northwest quarter] of the [southwest quarter]
of Section 35, Township 4 North, Range 13 West.

¶4. Luther predeceased Carrie, and Carrie died in 1971. Carrie’s will was admitted to

probate in 1972. In her will, Carrie bequeathed all her property to three grandchildren:

Donald Luther Moore, Melchester Phillips, and Gail Camper.

¶5. In her will, Carrie did not expressly list any real or personal property that she owned.

Commodore, Yolanda Bouchee, Beverly Henderson Bouchee, Carolyn Mojgani, Thomas
Gerald Bouchee, Jessie Willie Bouchee, Carol Sutton, Lynnette Myers, Kevin Smith, Eddie
Young Sr., Eddie Young Jr., Cheryl Young, Kim Wilborn, Tracie Wilborn, Carlos Wilborn,
Wayne Bouchee, Mark Watts, Michael Watts, any and all unknown heirs of Luther Bouchee,
Donald Luther Moore, Melchester Phillips Sr., Cleveland D. Bouchee, Curtisa Phillips,
Evelyn Bouchee, Clifton Bouchee, Jessie Bouchee, Louise Bouchee, Gloria Jean Bouchee,
Lola Bouchee, Morris Smith, Margaret Bouchee, Lillian Bouchee, and Marian Bouchee are
the Appellants.

2
The petition to probate Carrie’s estate provided that the only real property in Carrie’s estate

consisted of “a modest dwelling house and [real] property located in Forrest County,

Mississippi,” and the petition set forth the legal description of this real property. All the

parties agree that the real property listed in the petition to probate Carrie’s estate is not the

two acres at issue on appeal. The chancery court entered an order admitting Carrie’s will to

probate, and the order reflected that Carrie’s estate consisted of “a modest dwelling house

and [real] property located in Forrest County, Mississippi[.]” The order further specified that

the real property listed in the order “is all of the real property of the Estate.”

¶6. In 1977, the administrator2 of Carrie’s estate filed a petition to close the estate. In the

petition, the administrator averred that the three beneficiaries listed in Carrie’s will had failed

and refused to respond to the attorneys involved, and the whereabouts of two beneficiaries

were unknown. The administrator also asserted that “there has been no money received into

this Estate and that no claims have been probated and that the time for probation of claims

has long since expired.” In response to the petition, the chancery court entered an order

closing Carrie’s estate, subject to being “reopened upon petition of an interested party and

payment of all court costs.” The record reflects that at the time of trial, Carrie’s estate had

not been reopened, and there had been no determination of heirship.

¶7. On November 30, 1978, the Hattiesburg Area Development Corporation executed a

warranty deed conveying nineteen acres of real property to the Commission. Although the

2
Carrie did not appoint an executor to her will, and the chancery court ultimately
issued letters of administration cum testamento annexo to Oliver Henderson, Carrie’s
brother-in-law.

3
two acres Carrie owned were situated within the nineteen-acre parcel conveyed by the 1978

deed, the deed specifically excepted these two acres. However, over the next four decades,

the Commission executed various conveyances and easements that included the two acres at

issue as property of the Commission. The record reflects that the two acres at issue are

currently located within the Forrest County Industrial Park (Industrial Park).

¶8. In approximately 2020, a company showed interest in buying a parcel of property in

the Industrial Park that included the two acres at issue. During the process of ensuring that

the property could be properly transferred to the buyer, the Commission discovered that it did

not have clean title to the two acres at issue.

¶9. In April 2022, the Commission filed a complaint against the Appellants, all of whom

are either potential heirs of Luther and Carrie Bouchee or potential heirs of their descendants,

to confirm title to the two acres of real property. In its complaint, the Commission

acknowledged that the two acres at issue were never formally conveyed to the Commission;

however, the Commission asserted that it had acquired title by adverse possession pursuant

to Mississippi Code Annotated section 15-1-13 (Rev. 2019). The chancellor later allowed

the Commission to file an amended complaint adding additional parties.

¶10. The Appellants filed their answer, affirmative defenses, and counterclaim3 alleging

3
Only the following parties asserted the counterclaim: Christopher Wilborn, Tracy
Wilborn, Mustafa M. Shabazz (formerly known as Mark Watts), Kim Wilborn, Carlos
Wilborn, Michael Watts, Eddie Young III, Cheryl Young, Carol Sutton, Lynette Myres,
Kevin Smith, Carolyn Mojgani, Mary Smith, Morris Louisville, Shanina Bridges, Natasha
Smith, Brian Smith, Nakia Jupiter, Ahman Smith, Jesse Bouchee, Larry Bouchee, Stephanie
Rahnama, Thomas Bouchee, Gail Camper (also known as Gale Louise Camper), Sarah Y.
Phillips, Keith D. Phillips, Nikki Devona Hobson, and Melchester Phillips Jr.

4
trespass, unlawfully withholding possession of the property, and unjust enrichment.4

¶11. On July 6, 2023, the chancellor held a trial on the Commission’s complaint and the

Appellants’ counterclaims. The chancellor heard testimony from Marc Broome, a

professional engineer; Todd Jackson, the executive vice president of the Area Development

Partnership (ADP); and seven of the Appellants.

¶12. Jackson testified that the ADP staff serves as the economic and development staff for

the Commission. Jackson explained that in his role as Executive Vice President, he is

responsible for preparing property located in the Industrial Park for success in business

development. Jackson testified that in approximately 2020 a company had shown interest

in a parcel of property in the Industrial Park, and the parcel included the two acres at issue.

Jackson explained that based on the company’s interest in the parcel of property, he became

involved in laying out a site plan, which included performing title searches to ensure that the

property could be properly transferred to the buyer. Jackson testified that in late 2021 or

early 2022, while performing these title searches, the Commission first discovered that it did

not have clean title to the two acres at issue

¶13. The Appellants testified that they had no knowledge of the 1945 deed conveying the

two acres at issue to Luther and Carrie. Notably, the Appellants also testified that they had

no knowledge that Luther and Carrie owned the two acres at issue until the Appellants were

4
The record also reflects that in August 2022, the Commission filed an “Application
to Clerk for Entry of Default with Supporting Affidavit” against several Appellants who
failed to answer, defend, or otherwise plead. See M.R.C.P. 55. A Clerk’s entry of default
was entered on August 9, 2022, and the Commission filed a motion for default judgment the
following day. The chancellor executed a default judgment against the Appellants who
failed to answer.

5
served with the Commission’s complaint for adverse possession. The Appellants

acknowledged that Carrie did not list the property in her will, and the Appellants admitted

that they did not possess any evidence proving that Carrie still owned the two acres at issue

when she died in 1971.

¶14. The parties submitted numerous exhibits into evidence, including the 1945

administrative deed conveying the two acres at issue to Luther and Carrie; Carrie’s last will

and testament; the petition to probate Carrie’s will; the order admitting Carrie’s will to

probate; the order closing Carrie’s estate; the November 30, 1978, warranty deed conveying

nineteen acres of real property to the Commission, excepting the two acres at issue; a 1983

subdivision plat of the Industrial Park that included the two acres at issue as property of the

Industrial Park; a September 25, 1985, warranty deed executed by the Commission and

conveying an easement to the City of Hattiesburg for laying, constructing, and maintaining

a water line in and across the nineteen-acre parcel, including the two acres at issue;

Protective Covenants for the Hattiesburg Industrial Park adopted in August 1988; a January

15, 2001 warranty deed conveying certain real property from the Commission to the Board

of Trustees of the Pearl River Community College (PRCC) District, including the two acres

at issue; and an April 9, 2002, warranty deed conveying the same real property, including the

two acres at issue, from the Board of Trustees of PRCC District back to the Commission.

¶15. After all the witnesses testified, counsel for the Commission moved to dismiss the

Appellants’ counterclaims based on their lack of standing. The Commission argued that the

Appellants failed to prove any ownership of the two acres at issue and also failed to provide

6
sufficient credible evidence as to any damages for their claims of trespass, unlawfully

withholding possession of property, and unjust enrichment. Upon questioning by the

chancellor, counsel for the Appellants admitted that there had been no heirship proceedings

to determine the heirs of Luther and Carrie. Counsel for the Appellants requested that the

chancellor hold the adverse possession proceedings in abeyance and allow the Appellants to

initiate heirship proceedings. The chancellor denied this request as untimely.

¶16. After the trial, the chancellor entered a very thorough findings of fact and conclusions

of law in the final judgment, determining that the Commission met its burden of proving by

clear and convincing evidence that it acquired title to the two acres at issue by adverse

possession. Because the chancellor found in favor of the Commission on its adverse

possession claim, the chancellor dismissed the Appellants’ counterclaims.

¶17. The Appellants now appeal.

STANDARD OF REVIEW

¶18. When reviewing the decisions of a chancellor in this context, this Court applies a

limited standard: “we will accept a chancellor’s findings of fact as long as the evidence in

the record reasonably supports those findings. In other words, we will not disturb the findings

of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was

applied.” Frazier v. Frazier, 31 So. 3d 1218, 1219-20 (¶4) (Miss. Ct. App. 2009). “The

chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility

of witnesses and the weight of their testimony.” Id. at 1220 (¶4). “We review questions of

law de novo.” Id.

7
DISCUSSION

¶19. The Appellants argue that the chancellor erred in finding in favor of the Commission

on its claim of adverse possession. The Appellants also submit that the chancellor erred by

dismissing the Appellants’ counterclaims for trespass, unlawful withholding possession of

the property, and unjust enrichment.

I. Adverse Possession

¶20. Caselaw interpreting Mississippi Code Annotated section 15-1-13(1) provides that “a

party may claim title to property after ten years’ actual adverse possession.” Anderson v.

Jackson, 338 So. 3d 629, 641 (¶25) (Miss. Ct. App. 2022). A party claiming title to property

by adverse possession must prove by clear and convincing evidence that his possession of

the property was “(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.” Id. “Proof of the elements of adverse possession can overlap.” Id.

¶21. On appeal, the Appellants argue that the Commission failed to prove four of the

elements of adverse possession by clear and convincing evidence: claim of ownership, actual

or hostile, open, notorious and visible, and continuous and uninterrupted for a period of ten

years. Therefore, we will limit our discussion to these four elements.

A. Under Claim of Ownership

¶22. Section 15-1-13 provides that an adverse possessor must possess the subject property

under a claim of ownership for a ten-year period. Miss. Code Ann. § 15-1-13. Here, the

chancellor found that the Commission “has clearly acted as the owner and possessor of the

8
subject two acres since September 25, 1985, when it conveyed a utility easement to The City

of Hattiesburg and did not specifically except the subject two acres.” In support of her

finding, the chancellor referenced testimony regarding the “maintenance, mulching, bush

hogging, engineering surveys, cultural surveys, marketing the property for business

development, and the various other acts” performed by the Commission since 2015. The

chancellor determined that these actions openly demonstrated the Commission’s “stake of

claim” over the property.

¶23. The Appellants argue that because the Commission failed to put the record owners of

the two acres on notice that the Commission was adversely possessing the property, the

chancellor erred in her finding that the Commission met its burden as to the claim of

ownership element. The Appellants maintain that none of the heirs or descendants of Luther

and Carrie had any knowledge of any adverse claim on the two acres at issue until they were

served with the Commission’s complaint for adverse possession in 2022.

¶24. However, as acknowledged by the chancellor, the record is unclear whether Carrie

Bouchee still owned the two acres at issue at the time of her death in 1971. The 1945

administrative deed clearly conveyed the two acres at issue to Luther and Carrie Bouchee.

Luther predeceased Carrie, and he apparently died intestate.5 In 1971, Carrie executed a will

in which she gave, devised, and bequeathed her property to three of her grandchildren.

Carrie’s will did not specify any real property that she owned at that time.

¶25. Carrie died in 1971, and her will was admitted to probate in 1972. The petition to

5
At trial, Luther’s granddaughters testified that Luther did not have a will.

9
probate Carrie’s will stated that the only real property in Carrie’s estate consisted of “a

modest dwelling house and [real] property located in Forrest County, Mississippi[.]” The

petition included a description of the real property, and, as stated, the real property listed in

the petition is not the two acres at issue. The chancery court entered an order admitting

Carrie’s will to probate, and the order reflected that Carrie’s estate consisted of “a modest

dwelling house and [real] property located in Forrest County, Mississippi[.]” The order

further specified that the real property listed in the order “is all of the real property of the

Estate.”

¶26. In 1977, the administrator of Carrie’s estate petitioned the chancery court to close

Carrie’s estate “subject to being reopened upon the Petition of an interested party[.]” The

petition stated since the opening of Carrie’s estate, no claims had been probated. The

chancery court entered an order closing Carrie’s estate, specifying that the estate could be

reopened upon petition of an interested party and payment of all court costs.

¶27. At the hearing below, the Appellants confirmed that Carrie’s estate had never been

reopened. The chancellor noted that Carrie’s will did not expressly mention the two acres

at issue, and she inquired as to whether Carrie’s estate file contained any documents

identifying the two acres at issue as part of Carrie’s estate at the time the estate was probated.

Counsel for the defendants responded, “No.” The chancellor expressed concern that the

estate file did not contain a deed or other documents showing that the two acres at issue were

owned by Carrie at the time that the administrator filed the petition to probate Carrie’s will.

¶28. In her final judgment, the chancellor found that the Commission “properly noticed

10
every would-be and/or potential heir of the estates of Luther of Carrie Bouchee,” but the

chancellor clarified that any “would-be heirs” were responsible for pursing a claim “to

establish their heirship rights and potential ownership interests in any assets or property that

would have been part of” the estate of Luther and Carrie. The chancellor determined that

“[n]one of this was accomplished.”

¶29. Nonetheless, the lack of heirship determinations and the Appellants’ ignorance as to

their potential heirship rights to the two acres at issue are not sufficient to defeat the

Commission’s claim for adverse possession. The purpose of the adverse-possession statute

is “to resolve the problem of inattentive landowners who ignore their property over a long

period of time.” Buford v. Logue, 832 So. 2d 594, 601 (¶16) (Miss. Ct. App. 2002). The

supreme court has also stated that “ignorance of his or her legal rights by a person against

whom land is claimed by adverse possession is no defense against the running of the statutes

of limitations[.]” Bonds v. Bonds, 226 Miss. 348, 361, 84 So. 2d 397, 401 (1956).

¶30. Additionally, “[w]hen determining whether an adverse possessor has staked a proper

claim of ownership,” the relevant inquiry focuses on whether the actions of the would-be

possessor—here, the Commission—were sufficient to “fly [its] flag over the lands” in a

manner to put the actual owners on notice that the property was being “held under an adverse

claim of ownership.” Franco v. Ferrill, 342 So. 3d 1176, 1188-89 (¶30) (Miss. Ct. App.

2022). “The possession must be sufficient to put another on notice, actual or imputable, of

an adverse claim to his property.” Trotter v. Gaddis & McLaurin Inc., 452 So. 2d 453, 457

(Miss. 1984). We must also keep in mind that “both the quality and quantity of possessory

11
acts necessary to establish a claim of adverse possession may vary with the characteristics

of the land.” Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998). This

Court has held that “[a]dverse possession of ‘wild’ or unimproved lands may be established

by evidence of acts that would be wholly insufficient in the case of improved or developed

lands.” Id.

¶31. At trial, Jackson testified that for many years, the property at issue was “raw land.”

Jackson explained that ADP, which serves as the economic and development staff for the

Commission, prefers to leave property in the Industrial Park “forested for as long as possible”

until they determine that the property is “ready for development.” Jackson explained that this

minimizes the Commission’s costs of maintaining the property. Jackson testified that

between approximately 2007 and 2011, the Commission spent funds to perform

environmental and engineering due-diligence studies on several parcels of property within

the Industrial Park, including the two acres at issue. Jackson explained that this project

entailed engineers and archeologists performing various surveys and studies on the land,

including taking soil samples and determining whether endangered species were on the

property. Jackson estimated that the Commission spent approximately $143,000 on the due-

diligence studies.

¶32. Jackson also testified about the maintenance of the two acres at issue. In 2015, the

Commission harvested pine trees from land in the Industrial Park, including the two acres

at issue. In approximately 2018, the Commission spent money to remove the tree stumps and

remaining bushes from the property. Jackson testified that after harvesting the pine trees in

12
2015, the Commission continued to maintain the property by bush-hogging it and performing

general maintenance to make sure the land was “presentable” when showing it to companies

interested in purchasing the land. Jackson specified that the Commission bush-hogs the

property twice a year, and the City of Hattiesburg picks up trash and litter from the property

on a weekly basis.

¶33. After our review, and keeping in mind the characteristics of the two acres at issue, we

find that the record contains “sufficient evidence of [the Commission’s] possessory acts to

put any owner of the disputed property on notice of [the Commission’s] claim[.]” Franco,

342 So. 3d at 1189 (¶31). We also find that the record contains sufficient evidence to support

the chancellor’s finding that the Commission proved by clear and convincing evidence that

its possession of the property was under claim of ownership.

B. Actual or Hostile

¶34. The Appellants next take issue with the chancellor’s finding that the Commission

proved by clear and convincing evidence that its possession of the two acres at issue was

actual or hostile. “Possession is defined as effective control over a definite area of land,

evidenced by things visible to the eye or perceptible to the senses.” Roberts v. Young’s Creek

Inv. Inc., 118 So. 3d 665, 670 (¶10) (Miss. Ct. App. 2013). This Court has explained:

Possession is hostile and adverse when the adverse possessor intends to claim
title notwithstanding that the claim is made under a mistaken belief that the
land is within the calls of the possessor’s deed. The adverse possessor must
also possess the property without permission, because permission defeats any
claim of adverse possession.

Id. (citations and internal quotation marks omitted).

13
¶35. The Appellants specifically argue that the Commission failed to show that its claim

of title was “made under a mistaken belief that the land is within the calls of the possessor’s

deed.” Id. The Appellants maintain that the Commission “knew since 1978 [that] the two

acres in question[] [were] not part of its deed, as eviden[ced] by the 1978 deed and the 1983

survey.”6

¶36. However, we find that the record does not support this claim. Instead, the evidence

and testimony presented at trial establish that the Commission mistakenly believed that it

owned the two acres at issue. In 1978, the Hattiesburg Area Development Corporation

conveyed a nineteen-acre parcel of real property to the Commission via warranty deed.

Although the two acres owned by Carrie and Luther were situated within the nineteen-acre

parcel, the 1978 deed specifically excepted these two acres. However, over the next four

decades, the Commission consistently filed documents and performed actions that evidence

the Commission’s (mistaken) belief that it owned the two acres at issue.

¶37. In 1983, the Commission filed a subdivision plat of the Industrial Park in the chancery

court. The 1983 subdivision plat included the two acres at issue as property of the Industrial

Park. Two years later, the Commission executed a warranty deed conveying an easement to

The City of Hattiesburg for laying, constructing, and maintaining a water line in and across

6
In their appellate brief, the Appellants claim that “[a] survey was conducted in 1983
. . . and found that the property in question [was] excepted from” the property deeded to the
Commission in 1978. The Appellants cite trial exhibit 1 in support of their claim about a
1983 survey. The Appellants appear to confuse the 1983 subdivision plat, which includes
the two acres at issue as part of the property of the Commission, with a more recent survey
of the two acres at issue performed by Broome in approximately 2021. At trial, Broome
explained that the survey admitted into evidence as trial exhibit 1 was a “recent” survey of
the two acres at issue.

14
the nineteen-acre parcel, including the two acres at issue. In 1988, the Industrial Park

adopted protective covenants to ensure that companies investing in the Industrial Park adhere

to certain aesthetic and zoning standards. The covenants were filed in the chancery court and

have been renewed several times, as recently as 2015. The record reflects that the covenants

include the two acres at issue.

¶38. In January 2001, the Commission executed a warranty deed conveying eight acres of

land to the PRCC. The deed was admitted into evidence at trial, and testimony confirmed

that the land conveyed to the PRCC encroached on the two acres at issue. On April 9, 2002,

the PRCC executed a special warranty deed conveying the same eight acres back to the

Commission.

¶39. Jackson testified at trial that the Commission first discovered that it did not have clear

title to the two acres at issue after Broome reviewed the title commitment to the parcel and

found that the two acres were excepted from the 1978 deed. Jackson estimated that this

discovery occurred in approximately 2021.

¶40. As stated, “both the quality and quantity of possessory acts necessary to establish a

claim of adverse possession may vary with the characteristics of the land.” Walker, 722 So.

2d at 1281 (¶16). Jackson testified that from the inception of the Industrial Park, the

Commission intentionally kept the two acres at issue as “raw . . . forested . . . vacant land”

until the Commission determined that the land was ready for development. As a result, the

Commission did not take any action to make improvements to the property until 2015, when

it harvested the pine trees. In cases like the one before us, where the property at issue is

15
generally undeveloped, “the quantum of proof necessary to establish adverse possession over

the disputed parcel is measurably lower than had the property been improved or developed.”

Scott v. Anderson-Tully Co., 154 So. 3d 910, 917 (¶20) (Miss. Ct. App. 2015). “Possession

of such undeveloped property may be established by a continued claim evidenced by public

acts of ownership.” Id.

¶41. After our review, we find that the Commission performed “public acts of ownership”

sufficient to establish its actual or hostile claim of ownership of the two acres at issue. In

addition to filing subdivision plats, easements, and conveyances in the chancery court, the

Commission performed various maintenance, surveys, harvesting, and other actions on the

two acres at issue that demonstrated its claim on the property. Accordingly, the chancellor

did not err in determining that the Commission met its burden of proof as to this element.

C. Open, Notorious, and Visible

¶42. The Appellants also argue that the Commission’s use of two acres at issue was not

open, notorious, and visible but, rather, “sporadic possession at best.” The Appellants

therefore maintain that the Commission’s actions were not sufficient to “fly a flag over the

property” and put the record owners on notice that their land was held under an adverse

possession claim.

¶43. “In addition to the requirements that possession be under a claim of ownership and

hostile, possession must also be open, notorious, and visible.” Revette v. Ferguson, 271 So.

3d 702, 709 (¶19) (Miss. Ct. App. 2018). This Court has explained that “[f]or possession to

be open, notorious, and visible, the possessor must unfurl his flag on the land, and keep it

16
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.” Anderson-Tully, 154 So. 3d at 917 (¶21)

(internal quotation mark omitted). Again, our determination of whether a party’s possessory

actions were open, notorious, and visible depends on the characteristics of the property.

Walker, 722 So. 2d at 1281 (¶16).

¶44. In the case before us, the chancellor found that

the quality and quantity of the possessory acts by the Commission (e.g.
clearing trees, bushhogging, routine maintenance, conducting various studies
and surveys, marketing for business development, etc.) as well as other acts by
the Commission over the last fifteen or more years are sufficient to establish
the acts of open, notorious, and visible as may be expected of a person or
entity assuming actual possession over land in the industrial park area where
the subject two acres are situated.

After reviewing the record, we agree.

¶45. As stated, the Commission intentionally kept the land in the Industrial Park “raw” and

forested until the Commission determined that the land was ready for development.

Beginning in 1983 with the Commission’s filing of the Industrial Park subdivision plat, the

Commission filed various documents, easements, and conveyances that reflected the

Commission’s ownership of the two acres at issue.

¶46. Jackson testified that since the mid-2000s, the Commission has “continuously”

marketed the property in the Industrial Park to try and “attract a large employer to the area.”

Jackson explained that marketing the property included producing “real-estate flyers on

marketing materials that . . . highlight the property and highlight the advantages of it from

manufacturing standpoint[.]” Jackson confirmed that the two acres at issue were part of the

17
Commission’s marketing efforts “because it was a part of the larger parcel.”

¶47. Jackson also testified that between approximately 2007 and 2011, the Commission

spent approximately $143,000 in funds to perform environmental and engineering due

diligence studies on several parcels of property within the Industrial Park, including the two

acres at issue. In 2015, the Commission harvested pine trees from land in the Industrial Park,

including the two acres at issue. In approximately 2018, the Commission spent money to

remove the tree stumps and remaining bushes from the property. Jackson testified that after

harvesting the pine trees in 2015, the Commission maintained the property by bush-hogging

it twice a year and performing general maintenance to make sure the property was ready to

show to investors. Jackson also testified that the City of Hattiesburg picked up trash and

litter from the property on a weekly basis.

¶48. In Kayser v. Dixon, 309 So. 2d 526, 529 (Miss. 1975), a case involving adverse

possession of timberland, the Mississippi Supreme Court stated that “an important question

is whether the person claiming [ownership] adversely exercises toward the land the same

character of control applied toward property actually his and which he would not have

exercised over property which did not belong to him.” It is clear from the record that the

Commission exercised “the same character of control” toward the two acres at issue as it did

to the property actually deeded to it in 1978. Id.; see also Wicker v. Harvey, 937 So. 2d 983,

994-95 (¶37) (Miss. Ct. App. 2006). The evidence also shows that the Commission did not

“[try] to hide their use of the disputed parcel.” Apperson v. White, 950 So. 2d 1113, 1118

(¶13) (Miss. Ct. App. 2007).

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¶49. Keeping in mind the characteristics of the two acres at issue, we find that the

chancellor did not err in finding that the Commission’s possession of the land was open,

notorious, and visible.

D. Continuous and Uninterrupted for a Period of Ten Years

¶50. Finally, the Appellants argue that the chancellor erred in finding that the Commission

established its continuous and uninterrupted possession of the two acres at issue for more

than ten years. The Appellants maintain that “there is no ten year continuous and

uninterrupted period where the [the Commission] was under the assumed belief that the [two

acres at issue] was its property.” Rather, the Appellants argue that the Commission’s use of

the two acres at issue was intermittent and, therefore, insufficient to establish a continuous

and uninterrupted presence.

¶51. To satisfy the continuous and uninterrupted element of adverse possession,

Mississippi Code Annotated section 15-1-13 requires possession for at least ten years. Here,

the record shows that in January 2001, the Commission conveyed eight acres of Industrial

Park land to the PRCC. This deed reflects that the land conveyed to the PRCC encroached

on the two acres at issue. On April 9, 2002, the PRCC executed a special warranty deed

conveying the same eight acres back to the Commission. Evidence presented at trial shows

that from the time of the 2002 conveyance until the Commission filed its adverse possession

complaint in 2022—well over the ten years required by section 15-1-13—the Commission

was in continuous and uninterrupted possession of the two acres at issue.

¶52. After our review, we find that the chancellor did not err in determining that the

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Commission proved the necessary element of ten years’ continuous possession by clear and

convincing evidence.

II. The Appellants’ Counterclaims

¶53. Because the evidence in the record supports the chancellor’s finding that the

Commission proved title to the two acres at issue by adverse possession, we likewise find

that the chancellor did not err in dismissing the Appellants’ counterclaims for trespass,

unlawful withholding possession of the subject property, and unjust enrichment. See Franco,

342 So. 3d at 1202 (¶76).

CONCLUSION

¶54. After our review, we affirm the chancery court’s judgment granting title of the two

acres at issue to the Commission and dismissing the Appellants’ counterclaims.

¶55. AFFIRMED.

BARNES, C.J., LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ.,
CONCUR. WILSON, P.J., AND McDONALD, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
ST. PÉ, J., NOT PARTICIPATING.

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