dissenting. I respectfully dissent from the opinion affirming the chancellor’s decision in this case. I cannot agree that the chancellor applied the proper law and that he did not limit his determination solely to finding whether appellees were required to have “actual knowledge” of appellants’ adverse claim. Further, I would hold that limiting fees for appellants’ attorney to $2000 was an abuse of the chancellor’s discretion and was contrary to law.
The majority has concluded that, although the chancellor’s order was “inartfully written,” he apparently intended to say that he denied Hopper’s claim of adverse possession both because there was “no evidence of any actual notice” that Hopper gave to the appel-lees and their predecessors in title to merit Hopper’s prevailing on his claim of adverse possession, and because Hopper’s acts of hostility were insufficient to put appellees on notice that he was claiming title to the land by adverse possession. While I believe that the majority is generous in its description of the chancellor’s decree as inartful, I believe that the majority has been even more generous in its interpretation of what the chancellor meant. It is clear to me that the chancellor based his decision to deny Hopper’s claim of adverse possession solely upon the premise that actual notice of his claim was required to be given, but was not. However, without regard for whether the chancellor based his decision upon both the lack of actual notice and the insufficiency of his acts of hostility, I believe that the chancellor’s finding that Hopper’s acts of hostility were insufficient is clearly erroneous.
While I recognize the heavy burden on a tenant in common to prove adverse possession against other blood-related tenants in common, the law does not render such a claim impossible. Notwithstanding the majority’s strained interpretation of the chancellor’s decree, the chancellor held that because Hopper failed to prove actual notice to the other tenants in common, his claim of adverse possession failed. However, the cases do not hold that for a tenant in common to prevail on a claim of adverse possession against a blood-related tenant in common, the plaintiff must give actual notice of his claim. As the majority observes, to prevail on a claim of adverse possession, a plaintiff tenant in common must either give actual notice of his claim or “commit sufficient acts of hostility so that their knowledge of his adverse possession is presumed.” Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999); see also Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980); Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967); McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960); Wood v. Wood, 51 Ark. App 47, 908 S.W.2d 96 (1995); and Welder v. Wiggs, 31 Ark. App. 163, 790 S.W.2d 913 (1990). Furthermore, in Welder v. Wiggs, supra, we held both that a landowner (who, admittedly, was not a blood relative of the adverse claimant) had a duty to keep herself informed as to the adverse occupancy of her property, and that actual notice to an uninformed tenant of a claim of adverse possession is not essential to the success of the claimant. I am aware of no legal authority, nor can I perceive of any logical reason, why a blood-related tenant in common should be relieved from the same duty. In the case at bar, there is no evidence that any of the appellees knew or sought to discover whether they had any claim to an interest in the land here involved until Hopper’s action was initiated. More importantly, there is no evidence that any of the appellees or their predecessors in title inquired, over a period of more than fifty years, whether they had any liabilities for the taxes, assessments, or other expenses that necessarily accompany the ownership of an interest in land in this state.
In the case at bar, Hopper lived on the land with his father from the time he was born in 1923 until he graduated from high school in 1941. He then went off to college, but his studies were interrupted by three years in the Navy during World War II. After the war, he completed his education and spent a career teaching and working until he retired in 1979. Hopper’s father, Lawrence, was in sole actual possession of the land from 1947, when his mother died, until his death in 1975. During that time, Lawrence exercised all incidents of ownership over the land, including possession, tax payments, receiving rents and profits, and the construction and maintenance of improvements. Lawrence’s sole income during his lifetime was derived from the land. Hopper acquired his title in the land by quitclaim deed from Lawrence sometime prior to 1975. From that time forward, Hopper was in sole possession of the land; the land was assessed only in his name; he paid all the taxes and assessments on the land (even appearing before the equalization board to get the taxes reduced); he retained all the rents and profits from the land (including proceeds from rental, oil and gas leases, and timber sales); he made permanent improvements by clearing land and planting pine trees; and he was believed by his neighbors to be the sole owner, and generally treated the land as his own because he justifiably believed that he was.
We have held that the acts of ownership exercised by one claiming to be the owner of land are ordinarily sufficient if they are of such a nature one would exercise over his own land and would not exercise over the land of another. Dillard v. Pickler, supra. If the above-described acts by Lawrence and Hopper are not sufficient acts of hostility from which knowledge of an adverse claim can be presumed, I do not know of any evidence that would qualify.
While Hopper justifiably believed himself to be the sole owner of the land for almost twenty-five years, the appellees had no knowledge whatsoever and made no attempt to inquire whether they had an interest in the land. In Welder v. Wiggs, supra, we held that where one claimed title to land under color of title, he need not give notice of his adverse claim to others residing in distant places about whose existence, whereabouts, or claims he is unaware. The majority opinion does not explain how one in possession of land, believing himself to be the sole owner thereof, gives actual notice of a claim of adverse possession to putative tenants in common about whom he is unaware. Another impractical result of the majority’s decision is pointed out by appellant: he notes that an undivided one-sixth interest in the land is subject to the claim or claims of heirs whose identities and whereabouts are still unknown, and whose interest(s) in the proceeds from the partition sale will eventually escheat to the state because Hopper has not provided these unknown persons with actual notice.
On the issue of attorney’s fees, I also believe that the chancellor’s award was an abuse of discretion and contrary to the law. After the chancellor decided that Hopper had failed in his attempt to establish his claim of adverse possession, he granted Hopper’s alternative prayer for partition of the land involved. Arkansas Code Annotated section 18-16-419(a) (1987) requires the court in land-partition cases to award a reasonable fee to the attorney bringing the suit. Section 18-16-419(b) provides that in assessing such a fee, the court shall consider only services of the attorney that are of common benefit to all parties.
At the hearing on the attorney’s fee, Searcy W. Harrell Jr. stated that he spent 43.75 hours on the partition portion of the case. An examination of the pleadings alone reveals the vast amount of work that must have been involved in reconstructing the Hopper family tree and in obtaining actual or constructive service of process on them. Without stating any reason other than that “it becomes a real problem to determine when the plaintiffs attorney quit working for his client and began working for the owners,” the chancellor awarded only a $2,000 fee. This statement by the chancellor illustrates his misunderstanding of Ark. Code Ann. § 18-60-419(b), which permits compensation to the attorney bringing the suit for services that are of common benefit to all parties. Harrell was expected and required by ethical considerations to represent only the interests of his client. It is when the attorney’s pursuit of his client’s interests results in a common benefit to all the parties that the attorney bringing the suit is entitled to be compensated for those services from the proceeds of the partition sale. The fact that Hopper also benefitted from Harrell’s services, along with the other co-tenants, is not a permissible reason to deny compensation to the attorney for those services.
In concluding that the record supports the chancellor’s fee award, the majority opinion notes that “the time spent in searching for the missing heirs was as necessary for the quiet-title action and adverse-possession action as it was for the alternate prayer for partition.” This statement indicates that the majority suffers from the same misunderstanding of the meaning of section 18-60-419(b) as did the chancellor. The very fact that Harrell’s services were necessary for both the primary and alternative branches of the lawsuit is what justifies a fee for those services to the attorney bringing the partition action. Under the majority’s theory, appel-lees’ attorneys may benefit from Harrell’s work that inured to their benefit without paying anything for it. This is what is sought to be prevented by section 18-60-419.
For his 43.75 hours devoted to services that inured to the common benefit of all the parties to this action, Mr. Harrell should be paid at least $5,000 from the proceeds of the partition sale. One hundred twenty-five dollars per hour is not an unreasonable rate of compensation for an attorney admitted to the bar in 1964.