Wallace v. Ayres

Paul Ward, Associate Justice,

dissenting. I am unable to agree with the majority opinion. My reasons for dissenting will be briefly stated.

One. The Chancellor held that appellant and her predecessors in title did not show title by adverse possession to all of the land she claimed. The Chancellor, under the well established rule of this court, should be affirmed unless his holding is against the weight of the evidence.

Two. The husband of appellant in 1945, received a deed to Lot 11, Humphrey’s addition, Osceola. She has lived in a house on this lot, and also raised a garden thereon, ever since. It is conceded, as held by the Chancellor, she owns that parcel of land. However she claims, in this litigation, more land by adverse possession. As to this additional land, the Chancellor held, and I agree, she failed to show the necessary acts of possession.

The land claimed by appellant is bounded by a levee on the east and south and on the north by Keiser Avenue. There is no legal description of the west line of the property, but appellant claims about 107 feet frontage on the said avenue. The distance from the avenue to the levee on the south is about 300 feet.

Three. The great weight of the testimony as I view it, proves: Lot 11 covers only a portion of the land appellant claims; Lot 11 does not run south to the levee; she has no color of title to the expess land, and; she has not paid taxes on the excess land.

Four. Under the above state of facts it was encum-bent on appellant to prove she exercised actual, pedal possession of the excess land. See: Mooney, et al. v. Cooledge, et al., 30 Ark. 640; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236; Miller v. Kansas City Southern Railway Co., 216 Ark. 304, 225 S. W. 2d 18, and; Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777.

Not only was the Chancellor’s holding supported by the evidence, but there is no definite testimony that appellant actually occupied all of the excess land which she claimed and which the majority opinion gives her.