Daily Development for March 10, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

BOUNDARIES; JUDICIAL INTERPRETATION: Mississippi court evaluates discretion of Chancellor in making boundary adjustments, declaring fence ownership, prohibiting fence construction.

Kleyle v. Mitchell, 736 S.2d 456 (Miss. App. 1999)

Beland owned a 215 acre parcel. He sold 92 acres to Kleyle. Kleyle had the property surveyed and immediately built a fence along what he believed to be a line eighteen inches inside his boundary. He indicated he did this to protect his livestock from contact with that on neighboring property (presumably he expected his neighbor to build his own fence along the true boundary should his neighbor ever run cattle.)

Later, Breland sold another parcel, adjacent to Kleyle's parcel, to Mitchell. A surveyor retained at this time to survey Mitchell's boundary concluded that Kleyle's surveyor had erred, and that Kleyle's fence in fact encroached several feet into Breland's property. But, in order to avoid problems, the surveyor drafted a deed description that used Kleyle's fence line as the boundary. This left a strip of land between Mitchell's boundary and Kleyle's true boundary (as determined by Mitchell's survey) that had not been legally conveyed to either. The chancellor referred to this property as the " Holiday Strip."

Kleyle was not happy with this, since he maintained that the boundary line was eighteen inches beyond his fence. A dispute arose. Ultimately, Breland conveyed the "holiday tract" to Mitchell and Mitchell brought a boundary adjudication lawsuit.

The chancellor in the trial court retained another surveyor, who concluded that indeed Kleyle's fence was built over the boundary, but not by quite as much as Mitchell's surveyor had concluded. The chancellor, however, attempted a "Solomonic resolution" of the problem. He ordered: (1) to establish the boundary in the center of the " Holiday Strip" basically splitting the difference even though his own surveyor had concluded and the chancellor agreed, that this deprived Mitchell of some land; (2) to declare that Mitchell owned the fence Kleyle had built to the extent that the fence was on property allocated to Mitchell by the decree; (3) to prohibit Kleyle from building a new fence more than eighteen inches from the newly established boundary.

Kleyle appealed, but Mitchell did not.

On appeal, the Mississippi Court of Appeals upheld the chancellor's setting of the boundary at a location that the chancellor acknowledged was not the legal boundary, since Mitchell apparently was content to give up some land in order to get a peaceful resolution, and did not appeal. The appeals court, however, reversed the other two parts of the chancellor's opinion.

First, the court held that when a party builds an encroaching fence, the proper remedy is to order that that party remove the encroachment, not to declare the encroachment to be owned by the owner of the property.

Second, the court held that Kleyle had a perfect right to build a fence right along his property line, and that the court had no power to restrict Kleyle's fence building or any other activity on his land that did not amount to a nuisance.

Three judges dissented from the affirmance of the chancellor's ruling on the boundary line. In their view, even though Mitchell did not appeal, the chancellor had no business finding the boundary to be something other than what it legally was.

Comment 1: The dissent raises an interesting point. Even granting that Mitchell didn't appeal, isn't there a public interest in the stability of land boundaries that would suggest that the court ought to require that the chancellor's finding be in accordance with the chancellor's own finding that the boundary was where the chancellor's surveyor placed it?

Comment 2: Also of interest here is the holding about the fence. A fence built in error is not a gift, but can be retrieved. In fact, a number of statutes dealing with "good faith improvers" grant discretion to the court to require compensation to a party who, through good faith mistake, makes improvements to the land of another. Such statutes, however, also contain language permitting the court to leave the improvements where they are without compensation. In light of the court's ruling here, would such statutes, if so applied, amount to a taking of property without just compensation?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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