dissenting.
|7The question in this case is whether an amicable agreement to move a fence is tantamount to permission to use land. I find no law which supports that proposition; therefore, I respectfully dissent.
The majority opinion adequately sets forth the relevant law and facts of this case. The important fact is that the fence was moved by agreement of the parties with no intent to move the property line. The Lynches knew that they still owned and could control the use of the property on the appellees’ side of the fence. That property was used by the Bateses and their predecessors in title to their own benefit. As these acts were done on property that the Lynches knew and claimed as their own, the Bateses’ actions are an open, notorious, and hostile use of the land.
There is no evidence in the record that the Lynches gave permission to Dale Langford, the Masseys, or the appellees to use the land. The majority finds permission by implication through appellant’s silence. Permission is defined as the act of permitting, Websters II New Collegiate Dictionary, (1st ed.2001). In this case there is no evidence that the Lynches gave anyone permission to use the “jog” property. The testimony specifically stated that the property line remained the same after the fence was moved. Simply because property is not fenced does not mean that an adjoining landowner has permission to use that property.
I find no Arkansas cases where the concept of implied permission has been applied to adverse possession. On the contrary, there are three cases which seem to indicate that permission must be expressly given. In State of Arkansas v. Hatchie Coon Hunting and Fishing Club Inc., 372 Ark. 547, 279 S.W.3d 56 (2008), the hunting and fishing club brought an Inaction, in which the State was joined as a party, seeking a determination that it owned an island that had been formed in a navigable river. The club argued that it had impliedly consented to flooding the island in question and that implied permission was sufficient to defeat the State’s claim for adverse possession. Id. at 554, 279 S.W.3d at 60-61. The court disagreed, holding that there was no evidence that the club expressly consented to the permanent flooding. Id. at 558, 279 S.W.3d at 63. More was required on the part of the club to establish that it consented to the island’s inundation. Id. at 558, 279 S.W.3d at 64.
In deciding Hatchie Coon, the supreme court adopted this court’s reasoning in White River Levee District v. Reidhar, 76 Ark.App. 225, 61 S.W.3d 235 (2001), where landowners brought an action to quiet title in a parcel of the levee district’s property that the landowners had adversely possessed for more than seven years. As in the instant case, it was admitted that there was no evidence that the levee district gave the landowners’ predecessor in title express permission to clear and cultivate the land in dispute. Id. at 229, 61 S.W.3d at 238. The District argued that the mere existence of a benefit accruing to the District by virtue of the landowners’ occupation implied the existence of permission. Id. Our court stated that no authority was cited for that proposition and that “we are unwilling to hold that a collateral benefit that results to the owner from a possessor’s use is sufficient to declare the use permissive.” Id. at 230, 61 S.W.3d at 238.
Finally in Roberts v. Jackson, 2011 Ark. App. 335, 384 S.W.3d 28, two members of the majority joined me in affirming the trial court’s finding that Jackson had established a prescriptive easement. In Roberts there was testimony that Jackson’s neighboring landowner, |9Ms. Rogers, was “part of the family” and that Jackson assumed it was okay to be on the property between the houses. Id. at 5-6, 384 S.W.3d at 31-32. Rogers and her husband claimed that the only conclusion that could be made was that Jackson had actual or implied permission to use their property. Id. at 6, 384 S.W.3d at 32. We held that the trial court’s finding of adverse use was not clearly erroneous stating that “there was no testimony that they (appellees) ever requested or were granted permission.” Id. at 7, 384 S.W.3d at 32. Each of these cases indicate that permission must be expressly given.
My view of the testimony is that the moving of the fence was amicable. I cannot agree with the majority that the initial use of the property was amicable because there is simply no evidence in the record on that point. The Bateses bought the property adjacent to the jog and continued to use the jog as theirs. A landowner, acting under a mistake as to the true boundary, takes possession under an honest belief in ownership, and there is no adverse purpose. Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444 (1906). Here, the Bateses clearly intended to take to the fence, which is a hostile taking. Since the 1989 survey, the Bateses continued to exert control over the land known to be across the property line. I do not agree that the Lynches’ silence equates to “permission to use the land.” Therefore, I dissent.