IN THE COURT OF APPEALS OF THE
STATE OF MISSISSIPPI
NO. 97-CA-01547-COA

DAVID M. COX, PAUL D. EAVENSON AND GULF FORESTRY
ASSOCIATES, INC.    APPELLANTS
v.
F-S PRESTRESS, INC. APPELLEE

DATE OF JUDGMENT:      11/17/1997
TRIAL JUDGE: HON. JOHNNIE WILLIAMS
COURT FROM WHICH APPEALED:        FORREST COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANTS: WILLIAM H. JONES
ATTORNEY FOR APPELLEE:       ROBIN L. ROBERTS
NATURE OF THE CASE:    CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:     TITLE TO REAL ESTATE QUIETED IN
APPELLEE
DISPOSITION: AFFIRMED - 7/20/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:


      BEFORE McMILLIN, C.J., KING, P.J., AND DIAZ, J.
      KING, P.J., FOR THE COURT:

¶1.   This case came as an appeal from the judgment of the Forrest County Chancery

Court which found that F-S Prestress, Inc. should recover $27,118.52 from David M.

Cox and Paul D. Eavenson for the cutting of timber from F-S Prestress's land in

violation of Miss. Code Ann. § 95-5-10(1) (Rev. 1994). The parties are adjoining

property owners and both sides claimed ownership of the tract of land from which

the timber was removed.
¶2.   On appeal, the appellants raise the following issues:

      (1) BOUNDARY LINES DEFINED BY THE BOUIE RIVER
      REMAINED CONSTANT AMONG CONTIGUOUS PROPERTY
      OWNERS EVEN AFTER THE BOUIE RIVER MADE A CHANGE OF
      COURSE BECAUSE THE CHANGE WAS AVULSIVE AND NOT
      THE RESULT OF ACCRETION.

      (2) COX AND EAVENSON ALSO OWN THE ISLAND PROPERTY
      TO THE EAST OF THE OLD CHANNEL BY ADVERSE
      POSSESSION AND UNDER COLOR OF TITLE.

      (3) THE FAIR MARKET VALUE OF THE TIMBER REMOVED
      FROM THE ISLAND PROPERTY WAS $3800 BEING THE
      AMOUNT RECEIVED BY THE SELLER.

¶3. We find no basis for the reversal of the chancery court judgment and affirm that
judgment.

                                       FACTS

¶4.   This case involves a dispute between two adjoining property owners

concerning approximately seventeen acres of land, located on the Bouie River (also

referred to as the Bowie River) in Forrest County. The dispute exists because of the

changes in the course of the river, which acted as the boundary to the lands of the

parties on the east and west of the river. Originally, there was a meander in the river

creating a peninsula of land lying to the east of the river. It is undisputed that the

river changed its course, leaving the peninsula as an island, which lies west of the

new channel of the Bouie River.

¶5.   Wiley Fairchild and James W. Snowden, Jr. purchased land from W. A. Steele
and wife, Corine S. Steele, on April 18, 1957, and then transferred the property to

their company, F-S Prestress, Inc., on May 3, 1957. The property was described, in

part, as

       That part of the W ½ of NE 1/4 lying and being West of Bouie River,
       and that part of the E ½ of the NW 1/4 lying and being West of Bouie
       River, and that part of the NW 1/4 of SE 1/4 lying and being West of
       Bouie River, and NE 1/4 of SW 1/4 and a parcel of land on the S ½ of
       SW 1/4 of SW 1/4 . . . .

¶6.    David M. Cox and Paul Eavenson purchased the adjoining property east of the

Bouie River on January 17, 1989, from First Guaranty Bank for Savings, which had

foreclosed on a deed of trust to Associated Land Developers, Inc. The predecessors

in interest to Associated Land Developers were C. A. Clinton, Jr., and wife, Valcoe

Clinton. The property owned by the Clintons in Section 14 was described as

       Commence at the Northeast Corner of the Northeast Quarter of Section
       14, Township 5 North, Range 14 West, Forrest County, Mississippi, and
       run West 853.7 feet, thence run Southeast along the West line of Illinois
       Central Railroad right-of-way 300 feet to and for the point of beginning;
       thence run South 55 degrees 40 minutes West a distance of 376 feet,
       thence run South 36 degrees East a distance of 494 feet, thence run
       South 71 degrees, 30 minutes West to Bouie River, then run Southeast
       along the Northeast side of said river to the West line of said railroad
       right-of-way, thence run Northwest along said railroad right-of-way to
       the point of beginning . . . .

¶7.    On December 31, 1992, Cox and Eavenson gave Gulf Forestry Associates, Inc.,

Daniel K. McGee, a warranty timber deed to

       All that area considered an island bordered by Bowie River on the north
       and east sides and the old river bed of the Bowie River located in the
      North half of Southeast quarter, Section 14, T5N, R14W, Forrest
      County, Mississippi.

Gulf Forestry paid Cox and Eavenson approximately $2,832.33 for the timber

removed. Another timber company paid them $605.42 and $338.08.

¶8.   The chancery court entered judgment for F-S Prestress, granting it quiet title

to the disputed property and entered judgment in the amount of $27,118.52.

                                   DISCUSSION

¶9.   The first issue is whether the change in the river was through avulsion, which

would not affect title, or accretion. The chancery court awarded the property to the

landowners west of the river on a theory of accretion.

¶10. The law in Mississippi is well settled that changes in a stream or river that

occur gradually over time which change the boundary of the property is referred to

as accretion. An avulsive or sudden change in the course of a river causes the

property lines to stay the same. Robinson v. Humble Oil & Refining Co., 176 So. 2d

307, 316-17 (Miss. 1965). In Sharp v. Learned, 14 So.2d 218, 220 (Miss. 1943), the

court explained

      Accretion or alluvion is an addition to riparian land made by the water
      to which the land is contiguous, so gradually and imperceptibly that,
      though the witnesses may see from time to time that progress has been
      made, they could not perceive it while the process was going on . . . .
      Avulsion is a change in a boundary stream so rapidly or so suddenly
      made, or in such a short time, that the change is distinctly perceptible or
      measurably visible at the time of its progress.
¶11. Dr. Don Williams, associate professor of geography at the University of

Mississippi, testified that the process of the change in the course of the Bouie River

was the result of a long process of erosion and accretion. A series of aerial

photographs from 1942 and 1952 and a topographical map from 1965 showed that the

change in the river was gradual.

¶12. Mrs. Addie Clinton Holliman, whose husband and son were predecessors in

interest to Cox and Eavenson, testified that water began to flow over the new channel

yearly in the early 1960's and that the process of the new channel forming occurred

over a long period of time.

¶13.         This Court "will not disturb the findings of a chancellor when supported

by substantial evidence unless the chancellor abused his discretion, was manifestly

wrong, clearly erroneous or an erroneous legal standard was applied." Broadhead

v. Bonita Lakes Mall, Ltd. Partnership, 702 So. 2d 92, 96 (Miss. 1997). While errors

of law may be reviewed de novo, the standard of review for factual determinations is

the substantial evidence standard. Id.

¶14. We find that the findings of the court were supported by the evidence and reject

the appellant's argument to the contrary.

                                            II.

¶15. The appellants next argue that they are the owners of the property by adverse

possession. The chancery court stated "[b]ecause the Plaintiff has shown that it owns
the property in dispute by a gradual change in the course of the Bouie River, there

is no need to examine the Plaintiff's adverse possession claim." The court also did

not address the appellants/defendants' claim of ownership by adverse possession.

¶16. Miss. Code Ann. § 15-1-13 (Rev. 1995) provides that "[t]en (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." The

adverse possessor must show that "possession of the disputed property was (1) open,

notorious and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5)

peaceful; (6) continuous; and (7) uninterrupted." Rawls v. Parker, 602 So. 2d 1164,

1168 (Miss. 1992).

¶17. The appellants do not make a compelling argument that the court should have

addressed their claim of adverse possession. Their argument is based primarily under

claim of ownership through their predecessors in title. In 1946, the Clinton family

took title to the 105 acres east of the Bouie River. In 1951, Mr. Clinton sold timber

on the property described as the island cutoff by the Bouie River. The burden of

proof was upon the appellants to establish by competent evidence the particular area

claimed by them. Page v. O'Neal, 42 So. 2d 391 (Miss. 1949). Appellants do not

point to any specific acts by them or their predecessors in title which would satisfy
the requirements for adverse possession of the disputed property after the change in

the Bouie River's channel.

¶18. The testimony at trial was that the Forrest County Tax Assessor's Office had

assessed the disputed property to F-S Prestress, Inc. and that they had consistently

paid the taxes. While the payment of taxes alone may not be reason to find adverse

possession, the payment of taxes has been found to be a persuasive point to consider

in finding ownership by adverse possession. Native Lumber Co. v. Elmer, 117 Miss.

720, 723, 78 So. 703, 705 (Miss. 1918). "Discussing the question of the payment of

taxes as evidence of adverse possession, the Supreme Court of the United States says:

'Payment of taxes, as described in the above statement of facts, is very important and

strong evidence of claim of title; and the failure of the plaintiff's predecessors to make

any claim to the lot, or to pay the taxes themselves, is some evidence of an

abandonment of any right in or claim to the property.' In Ewing v. Burnet, 36 U.S. 41,

it was held by this court that payment of taxes on land for 24 successive years by the

party in possession was powerful evidence of the claim of right to the whole lot upon

which the taxes were paid." Native Lumber Co., 78 So. 705, (quoting McCaughn v.

Young, 85 Miss. 293, 37 So. 839 (1905)).

¶19. We find that the chancery court did not err in failing to consider the appellants'

claim of adverse possession.

                                           III.
¶20. The appellants argue that the court should have based the damage award solely

on the amount they received for the timber. The testimony was that the appellants

were paid approximately $3776 for the timber. Gulf Forestry paid $2832.33 and

another company, Southgate, paid $605.42 and $338.08.

¶21. Miss. Code Ann. § 95-5-10(1) provides:

      If any person shall cut down, deaden, destroy or take away any tree
      without the consent of the owner of such tree, such person shall pay to
      the owner of such tree a sum equal to double the fair market value of the
      tree cut down, deadened, destroyed or taken away, together with the
      reasonable cost of reforestation, which cost shall not exceed Two
      Hundred Fifty Dollars ($250.00) per acre.

¶22. The court found that the "fair market value of the trees harvested on the

disputed property is the value of the trees as they stand in the woods." The court

based its findings on the testimony of Kip McGee, vice president of Gulf Forestry

Associates, who stated that "fair market value would be what timber sells for while

it's standing in the woods."

¶22. Mr. McGee was asked to calculate the market value of the timber that was sold

off the property. In his calculations he included the amount received from the mill,

the amount paid to the loggers, and the amount paid to the appellants. To the figure

of $9,128.38, he added $2,730.88 as his calculation of the value of the timber

harvested by Southgate. The figure of $11,859.26 arrived at by Mr. McGee was used

by the court in calculating the award of damages. The court awarded $23,718.52 in
damages or double the amount testified to by Mr. McGee.

¶23. The appellants state in their brief: "The lower court [found] that the fair market

value of the trees harvested was the value of the trees as they stood in the woods, or

$11,859.26. This may be the actual value of the trees, or the amount the logger must

sell the timber for to make a profit, but it is not the fair market value paid to the

owner." The appellants do not offer any authority that the price paid to the owner is

the "fair market value" contemplated by the statute.

¶24. In reaching its conclusion as to the fair market value of timber, the chancery

court had to rely on the testimony or evidence presented. The substantial evidence,

as presented through the testimony of Mr. McGee, supports the finding of the court.

Consequently, this Court affirms the decision of the court.

¶25. THE JUDGMENT OF THE CHANCERY COURT OF FORREST
COUNTY IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO THE
APPELLANTS.    STATUTORY PENALTIES AND INTEREST ARE
AWARDED.

    McMILLIN, C.J., SOUTHWICK, P.J., DIAZ, IRVING, LEE, PAYNE,
AND THOMAS, JJ., CONCUR.    BRIDGES AND MOORE. JJ., NOT
PARTICIPATING
