State v. Hatchie Coon Hunting & Fishing Club, Inc.

John Mauzy Pittman, Chief Judge,

dissenting. I believe that the majority opinion is laden with superfluous facts and unduly complicates what is essentially a simple issue. Whether the entire property is permanently and totally submerged, and whether the property was formed by accretion or avulsion, are points that are interesting but irrelevant. Furthermore, because the State is only claiming that part of the property that is submerged, it simply does not matter that isolated portions of the property are not, in fact, part of the riverbed. The crucial issue in this case is adverse possession. I would reverse and remand because adverse possession was conclusively established at trial.

The majority asserts that the State cannot demonstrate the hostile intent necessary to prove adverse possession because it never attempted to exclude any member of the public from the property, and because it is not “in privity” with the duck hunters who have undisputedly used the disputed property for over twenty years. This is specious. This case began because duck hunters who had used the property for many years claimed that they were entitled to continue doing so because a public right to do so had been established by widespread public use of the property for hunting purposes. The State, reluctantly, was joined in the proceedings. The State itself never adversely possessed the property and does not claim to have done so. Nevertheless, given its interest in riparian property, public lands, and the regulation of hunting and fishing in Arkansas, the State was a proper party for permissive joinder and has standing to represent the public at large on appeal by asserting on behalf of the public that public title by prescription was created by long, notorious, and hostile use of the property for hunting and fishing by the public. See, e.g., State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014 (1917), cert. denied, 247 U.S. 512 (1918).

The majority relies on the general rule that incursions into the land of another for the purpose of hunting and fishing do not signify an intention to appropriate land’s for one’s own use. It should be added that this rule is applicable only to unenclosed lands, and its ancient origin was explained by the Arkansas Supreme Court over 150 years ago:

In Broughton vs. Singleton, 2 Nott & McCord’s R. 338, Mr. Justice Johnson said: “Our ideas of those injuries, for which the action for trespass will lie, are principally derived from the English authorities, and I am disposed to think they are followed, without a proper regard to the vast difference between the situation of the two countries, so that in pursuing the letter, we lose sight of the principle. There, almost every foot of soil is appropriated to some specific purpose; here, much the greater part consists in unenclosed and uncultivated forest, and a part in exhausted old fields, which have been abandoned, as unfit for further cultivation, in which the cattle of the citizens feed at will. There, it is as practicable as necessary to protect the occupants against those petty trespasses; here, it is wholly impracticable; and, I think, unnecessary. The attempt to give this protection to unenclosed land, would overwhelm us in a sea of petty litigation — destructive of the interest and peace of the community. Upon this principle, it was determined in the case of McConico vs. Singleton, 2 Con. Rep. 244, that hunting on unenclosed lands, was not such a trespass as would sustain an action,” See.

Bizzell v. Booker, 16 Ark. 308, 319 (1855). I think this is instructive, and that we, too, should beware of pursuing the letter of the law only to lose sight of the principle. Although it may be good and sensible policy in the usual case to hold that use of unenclosed lands for hunting or fishing is not sufficient to put the landowner on notice that the use is hostile, this is not a usual case. Because the property in question has been inundated with water for decades, the only possible use that can be made of the property is to tie a boat to the tip of a long-submerged tree for the purpose of hunting or fishing, and the appellee has not only admittedly permitted the public at large to use the property for this purpose without protest for a period in excess of twenty years, its members have actually paid strangers to the property for the privilege of using the property which it now claims to own.

Without regard to whether appellee consented to the innun-dation, and without regard to whether the initial use by the public was permissive, appellee’s acquiescence for decades to the public’s placement and use of duck blinds on the property caused any initial permissive use to change over the years to hostile use sufficient to establish adverse possession. There was extensive evidence that members of the public have attached duck blinds there for decades before this suit was brought. At the preliminary injunction hearing, for example, Don Hancock testified that his father’s duck blind had been there for thirty-eight years. At trial, the individual defendants testified further about their decades-long use of the area.

This testimony was not denied by appellee. To the contrary, Mr. May admitted that, between 1965 and 1990, appellee did not put up any boundary-line markers; that it told no one not to hunt or fish on the property; and that it never asked anyone to move the Hancock blind, which was “the best, or the second best blind on the river.” He also admitted that, in the early 1970s, he himself actually paid to use the property when he rented the Hancock blind from a Mr. James, and later, other club members rented it from Mr. James’s grandson. In fact, he said, there were about six blinds by non-members on the area in question.

Mr. May explained appellee’s failure to take action for so many years as follows:

One, we’re kind of an absentee owner. Most of our members live in Memphis. We’ve got a significant investment over there in clubhouses and tractors and boats, and boathouses, all that kind of stuff that could be easily tampered with and destroyed if the people in the area were mad at us. We perceived that raising much Cain with blind owners might generate that madness. And at the time, back before the 90’s, when suddenly more blinds came in, it wasn’t affecting our rights enough to take any action on it. That’s why we didn’t take any action — not that we didn’t recognize our rights — we just thought it would be better for the club not to take action.

Permissive use can become adverse if notice of hostility has been brought home to the owner by holding so open and notorious as to raise a presumption of notice equivalent to actual notice. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). I submit the only possible conclusion to be drawn in this case is that the uninterrupted public use gave rise to the public’s title by prescription, and I would reverse on that basis.

Bird, J., joins in this dissent.