Fletcher v. Stewart

Cite as 2015 Ark. App. 105

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-357

Opinion Delivered February 18, 2015
DELANO JACKSON FLETCHER and
LINDA LOUISE FLETCHER, Husband APPEAL FROM THE CLEBURNE
and Wife COUNTY CIRCUIT COURT
APPELLANTS [NO. CV-12-60]

V. HONORABLE TIM WEAVER,
JUDGE
VERNA STEWART and
LINDA HAYES
APPELLEES AFFIRMED

M. MICHAEL KINARD, Judge

Appellants Delano and Linda Fletcher appeal from the trial court’s order quieting title

to disputed property in appellees Verna Stewart and Linda Hayes. Appellants argue that the

trial court erred in finding that appellees had proved adverse possession and boundary by

acquiescence. We affirm.

Appellees, who are sisters, filed a petition to quiet title by adverse possession against

appellants on March 12, 2012. They later filed amended petitions adding an alternative claim

of boundary by acquiescence and three defendants they asserted may claim an interest in the

property. The subject property was approximately twelve acres in Cleburne County that

appellants had title to by deed but which appellees’ family had possessed for decades.

Evidence at trial established that appellants had title to several tracts of land west of

Center Ridge Road, including the subject property. Appellees had a deed for ten acres east
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of the road; however, family members had possessed the twelve acres west of the road as early

as 1951. Evidence was introduced concerning a 1951 lawsuit brought by G.R. Miller, a

predecessor in title of appellees, against Arvel Elms, a predecessor in title of appellants, to

prevent Elms from building a fence along the west side of the county road that would have

enclosed the twelve acres. Witnesses testified that in 1951 a surveyor established that the line

dividing the properties was west of the twelve acres. Appellees and others recalled that they

were told that Elms did not appear for court but that the matter was settled and a fence was

built on the west side of the twelve acres instead of the east side of it along the county road.

This fence partially remained. Two other fences were later constructed along the western

boundary of the twelve acres. Linda Hayes testified that the parties in the 1951 lawsuit were

told to build fences four feet from the surveyed line.

Appellees’ parents, the Burlesons, began building the home that appellees grew up in

on the subject property in 1956, although they were not deeded the ten acres from relatives

G.R. and Julia Miller until 1967. The Burlesons gardened and raised chickens and cattle on

the subject property. Friends and family members remembered a fence on the west side of

the Burlesons’ property that they understood to be the property line, and the fence was

maintained to keep cows in. Appellees last lived at the home in the early 1970s. Mr.

Burleson died in 1987, but Mrs. Burleson lived on the property until 2005. Mrs. Burleson

never told anyone that someone had threatened to take her land. She later deeded the

property to appellees.

Appellant Delano Jackson Fletcher testified that he bought eighty acres, including the

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disputed twelve acres, from Dorise Chastain in 1991 and 1992. Fletcher had known since the

1980s that the Burlesons lived on the subject property, and he did not believe he was buying

that property when he purchased property from Chastain. He later discovered that the fences

were in the wrong place after receiving a survey from Chastain. Fletcher testified that he told

Mrs. Burleson about his discovery in 1993, and she told him that the matter had been settled

in court a long time ago and that she had a deed to her property. Fletcher checked the

courthouse records then reported back to Mrs. Burleson that the court case showed no

settlement or decision and that her property was actually across the road. He told her that he

was not going to try to take her home and that she could stay there as long as she lived.

In 1995, Fletcher started building a fence west of the Burleson fence even though he

felt like he owned all of the property. He granted an easement right-of-way to Tumbling

Shoals Water Association, Inc., in 1995, and in 2005, he executed an oil-and-gas lease with

SEECO, Inc., which included the subject property. Appellants had not used the subject

property. They introduced evidence that the home and other structures on the property were

in disrepair and that the electricity and water had been shut off for several years.

The trial court found that appellees had proved both boundary by acquiescence and

adverse possession. Regarding boundary by acquiescence, the court found that, since the

dispute over the location of the property line in 1951, a fence was constructed and appellees

and their parents had enjoyed uninterrupted use of the subject property up to the fence. The

court noted that an actual agreement between Mr. Miller and Mr. Elms was not required, and

silent acquiescence is sufficient where mutual recognition of the boundary line can be inferred

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from the conduct of the parties over a period of years. The court also found that the evidence

was undisputed that appellees and their parents had been in possession of the subject property

continuously for more than seven years and that their possession was visible, notorious,

distinct, exclusive, hostile, and with the intent to hold against the true owner since at least

1967 when the Burlesons received their deed to the contiguous property. The court found

that title by adverse possession had vested in the Burlesons no later than 1975. The court

quieted title to the subject property in appellees subject to SEECO’s oil-and-gas lease and to

the easement and right-of-way to Tumbling Shoals Water Association.1 Appellants’ claims

to the property were extinguished and declared null and void.

This court reviews quiet-title actions de novo; however, we will not reverse the trial

court’s findings of fact unless they are clearly erroneous. Smith v. Smith, 2011 Ark. App. 598,

385 S.W.3d 902. A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court on the entire evidence is left with a firm conviction that an error has

been committed. Id. We give due deference to the trial court’s superior position in

determining witness credibility and the weight to be accorded their testimony. Id.

Appellants first argue that appellees failed to prove adverse possession because they did

not have color of title to the subject property. In 1995, the General Assembly added, as a

requirement for proof of adverse possession, that the claimant prove color of title and payment

of taxes on the subject property or contiguous property for seven years. See Ark. Code Ann.

§ 18-11-106. However, if the claimant’s rights to the disputed property vested before 1995,

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The remaining defendant was dismissed prior to trial.

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he need not comply with the 1995 statutory change. Sutton v. Gardner, 2011 Ark. App. 737,

387 S.W.3d 185. If appellees’ rights vested before 1995, as the trial court found, appellees had

to prove only the common-law elements of adverse possession: that they had been in

possession of the property continuously for more than seven years and that their possession

had been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the

true owner. Id. Under common law, our supreme court has recognized that “color of title

is not an essential element to a claim of adverse possession if there is actual possession.”

O’Neal v. Ellison, 266 Ark. 702, 705, 587 S.W.2d 580, 581 (1979). Appellants’ contention

that color of title is necessary for all adverse-possession claims is incorrect.

Appellants next claim that appellees could not have adversely possessed the property

because in 1993 appellants granted permission to Mrs. Burleson to stay on the property.

Appellants’ argument is meritless because it does not attack the trial court’s finding that

appellees’ predecessors in title, the Burlesons, adversely possessed the property since at least

1967. A claimant may tack on the adverse-possession time of an immediate predecessor in

title, as appellees have done here. Smith, supra. A conversation appellants claimed to have had

with Mrs. Burleson nearly twenty years after her title had vested by adverse possession does

not cast doubt on her title. See McLaughlin v. Sicard, 63 Ark. App. 212, 977 S.W.2d 1 (1998).

After an individual obtains title to land by adverse possession, his recognition that another may

have a claim to the land does not divest title to the land from the adverse possessor nor does

this recognition estop the adverse possessor from asserting title. Id.

Appellants’ argument that appellees had abandoned the subject property since 2005 is

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likewise without merit. Adverse possession maintained for the statutory seven-year period

vests title in the adverse possessor as completely as would a deed from the holder of record

title. McLaughlin, supra. Title to realty may not be divested by abandonment alone. Hendrix

v. Hendrix, 256 Ark. 289, 293, 506 S.W.2d 848, 851 (1974). There must be an intent on the

part of the owner to relinquish his claim, and this intent must be accompanied by

circumstances of estoppel and limitation if the abandonment is not by a legal deed of

conveyance. Id. The party asserting abandonment bears the burden of proving it by clear,

unequivocal, and decisive evidence. Id. The trial court was not clearly erroneous in failing

to find that appellants proved abandonment merely by their evidence that the condition of

the property had deteriorated while no one was living on it.

Appellants next contend that appellees could not prove adverse possession of the

mineral estate because appellants had been in actual possession of the subsurface since 2005

by virtue of their oil-and-gas lease. This argument was raised for the first time in appellants’

posttrial brief, and the trial court did not rule on it. An issue must be presented to the trial

court at the earliest opportunity in order to preserve it for appeal. Thompson v. Fischer, 364

Ark. 380, 220 S.W.3d 622 (2005). Where nothing appears in the record reflecting that a

particular argument was formulated before the trial court, or that any ruling was given, the

appellant has waived review of that issue. Id.

Appellants also argue that appellees should be barred by laches or estoppel in

establishing adverse possession because they “sat on their rights” to the detriment of

appellants. Again, appellants failed to obtain a ruling on this argument. This court will not

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consider laches on appeal when the matter was not brought to the attention of the trial court

for a ruling. Higgins v. Higgins, 2010 Ark. App. 71, 374 S.W.3d 56. We hold that the trial

court’s finding that appellees had proved the necessary elements of adverse possession was not

clearly erroneous, and we affirm the decree quieting title in them.

Appellants also contend that appellees failed to prove boundary by acquiescence

because the parties did not recognize a definite fixed boundary and did not mutually agree to

such a boundary. Whenever adjoining landowners tacitly accept a fence line or other

monument as the visible evidence of their dividing line and apparently consent to that line,

it becomes a boundary by acquiescence. Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684

(2005). A boundary line by acquiescence is inferred from the landowners’ conduct over many

years so as to imply the existence of an agreement about the location of the boundary line.

Id. The location of a boundary line is a question of fact. Id. Although equity cases are

reviewed de novo on appeal, we will affirm a trial court’s finding of fact with regard to the

location of a boundary line unless the finding is clearly erroneous. Id.

When the adjoining owners occupy their respective premises up to the line they

mutually recognize and acquiesce in as the boundary for a long period of time, they and their

grantees are precluded from claiming that the boundary thus recognized and acquiesced in is

not the true one, although it may not be. Clark, supra. Appellees and their witnesses testified

that the predecessors in title on both sides had accepted the west fence as the boundary line

since the 1950s. As in Clark, appellants offered no testimony to contest appellees’ evidence

that the previous owners of the land had acquiesced in the boundary line. The trial court was

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not clearly erroneous in its finding of boundary by acquiescence, and we affirm.

Affirmed.

GLADWIN, C.J., and BROWN, J., agree.

Thomas Law Firm, by: Albert J. Thomas III, for appellants.

Terry J. Lynn and Robert S. Tscheimer, for appellees.

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