Fulkerson v. Van Buren

Margaret Meads, Judge,

dissenting. The trial court determined that appellees established their claim for adverse possession of the tract of land they had occupied since 1985. Because I do not believe the trial court’s findings of fact are clearly erroneous or clearly against the preponderance of the evidence, I would affirm.

Reverend Van Burén testified that he became pastor of The Progressive Church in 1985 and that he and other church members immediately began cleaning up the premises, which he described as a “wilderness” and “dumping site.” The land was overgrown with vines and littered with storm debris, and the church building was infested with snakes. They cut down trees, cleared out debris, and cleaned up the highway frontage so that the building became visible from the road. They repaired the building by installing central heat and air, and by replacing the roof, siding, windows, and floor. They added a 40-foot building and office. After two years, the property was in “immaculate” condition, and the congregation received compliments for their efforts from the local community. When asked whether he had treated the property as his own, Reverend Van Burén asserted: “There’s no way that I would have gone to this property and cleared it by hand . . . if I had assumed we didn’t have business being there, the right to be there, or if the church didn’t have the needed possession.”

Reverend Van Burén further testified that he had no dealings whatsoever with appellant until sometime in the early nineties, when appellant stopped by the church, asked to speak to the preacher, complimented him on the church’s efforts to improve the appearance of the church and grounds, but was silent as to his ownership of the site. It was not until 1992 that appellant, through his attorney, notified appellee that he (appellant) owned the land and was willing to negotiate a lease with the church. Subsequently, appellant personally spoke to Reverend Van Burén about a lease. Ultimately, appellant’s attorney sent appellees a demand to vacate dated November 4, 1994, and filed the ejectment action in May 1995. All during this time, The Progressive Church steadfastly refused to negotiate with appellant, asserted its intent to remain in possession, and defied eviction efforts. Reverend Van Burén repeatedly asked appellant for a quitclaim deed to the premises. He contended there were never any “negotiations” with appellant for a lease, and “the only reason lease was mentioned is because Mr. Fulkerson dominated the conversation. You only talk about what Mr. Fulkerson wants to talk about. It doesn’t matter what you say.”

To establish adverse possession which ripens into ownership, the claimant must prove possession for seven years that has been actual, open, notorious, continuous, hostile, and exclusive, accompanied with an intent to hold against the true owner. Utley v. Raff, 255 Ark. 824, 827, 502 S.W.2d 629, 632 (1973). The majority believes appellee failed to establish the requisite intent to hold against the true owner, because once appellant asserted his ownership and the church “recognized” appellant’s ownership right, the church’s occupancy ceased to be adverse, thus interrupting the seven-year statutory period. I disagree.

First, I do not believe the church recognized appellant’s ownership. Church members began to occupy the premises in 1985, using the building regularly, without interruption, and without notice of appellant’s ownership until 1992. After being notified of appellant’s title and after receiving a demand to vacate and later an eviction notice, they continued to occupy the premises, using the building regularly and without interruption. By their actions, the congregation continued to repudiate appellant’s ownership even through the date of trial and beyond. To date, they have been in continuous possession for almost thirteen years.

Second, I believe the church clearly demonstrated a hostile intent within the meaning of the law. As this court stated in Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990):

The word hostile, as used in the law of adverse possession, must not be read too literally. For adverse possession to be hostile, it is not necessary that the possessor have a conscious feeling of ill will or enmity toward his neighbor. Claim of ownership, even under a mistaken belief, is nevertheless adverse. (Citation omitted.)

Id. at 46-47. Additionally, for possession to be adverse, it is only necessary that it be hostile in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to, the superior right of the owner. Barclay v. Tussey, 259 Ark. 238, 241, 532 S.W.2d 193, 195 (1976). For the reasons stated in the previous paragraph, I cannot say that appellee’s possession was “in conformity with, recognition of, or subservience to” appellant’s rights.

Third, it appears to me that appellee established seven years of possession with all the qualifying factors before appellant ever asserted his ownership.

I would affirm.

Stroud, J. joins in this dissent.