dissenting. The majority’s opinion is based upon two premises, neither of which is supported by the law or the facts in this case. The majority holds that, as a matter of law, Mrs. Smith’s reservation of a life estate in the O’Dells’ deed explained her continued possession of the Ricketts’ land. I can find no case that supports this premise, and the majority cites none. The reservation of the life estate describing the house and one acre was contained only in the deed conveying ownership to the O’Dells’ land. The separate deed to the Ricketts contained no reservation of any rights whatsoever.
The second premise is that Mrs. Smith’s continued possession of the Ricketts’ property was presumed to be in subordination to the title conveyed to the Ricketts because she was the grantor of the land to the Ricketts, and the trial court erred in finding that the presumption was overcome.
In support of this second proposition, the majority cites Shelby v. Shelby, 182 Ark. 881, 32 S.W.2d 1071 (1930). However, Shelby does not support the majority’s disposition of this case. In Shelby, our supreme court rejected the appellant’s argument that the presumption that a grantor’s possession is in subordination to the title conveyed, unless there is affirmative evidence of a contrary intention, precluded a finding of adverse possession. In rejecting appellant’s argument in Shelby, the court recognized the rule regarding subordination set forth in Stuttgart v. John, 85 Ark. 520, 109 S.W. 541 (1908) (finding that where owners of land lay out a town or an addition to a city or town upon it, platting it into blocks and lots, intersected by streets and alleys, and sell lots by reference to the plat, they thereby dedicate the streets and alleys to the public use, and that such dedication is irrevocable).
However, the court in Shelby found unpersuasive the argument that the general presumption precluded the trial court from finding adverse possession. In finding the presumption had been overcome, the Shelby court noted that “they remained in possession of the north one-third from 1909 to 1926 without question of right” and concluded that “[h]er occupancy and those through whom she claimed, was, under the circumstances ... sufficient notice to appellant of the hostility of the possession.”
The majority states that in this case the “appellees contend that the presumption was gradually overcome or rebutted, because Mrs. Smith’s and their occupancy of the land continued unexplained for an unreasonable amount of time, specifically, since 1986.” Appellees’ argument is well taken given that Shelby, and every case following it, has upheld the trial court’s determination that the presumption was rebutted. See Anderson v. Burford, 209 Ark. 452, 190 S.W.2d 961 (1946) (holding presumption is not continuing, its probative force diminishes with the lapse of time and with long continued possession may cease to exist); Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939) (presumption overcome with twenty-three years of continued possession by original grantor).
In the present case, Mrs. Smith and the O’Dells possessed the disputed one-third acre in this case without question of right from the 1986 division of the property until the survey conducted in 2001, a period of fifteen years. Undisputed possession of the land, openly and notoriously, for a period of fourteen years is sufficient to overcome the presumption that grantor was holding in subordination of his original grant. Shelby, supra (citing Tegarden v. Hurst, 123 Ark. 354, 185 S.W. 463 (1916)).
The majority ignores this well-established precedent and attempts to explain Mrs. Smith’s and the O’Dells’ occupancy of the disputed track by Mrs. Smith’s reservation of the life estate in the O’Dell deed. If Mrs. Smith had reserved a life estate in the entire eighty acres in each grantees’deed, then the majority’s position would have more validity. Unfortunately, the majority does not address the fact that the reservation of the life estate is only contained in the land granted to the O’Dells. Mrs. Smith’s continued possession of the disputed tract after reserving the life estate in the O’Dells’ deed is further evidence that both she and the O’Dells intended to possess the disputed tract. The majority states that Mrs. Smith’s reservation of a life estate in the O’Dell deed “is some indication that [she] thought the disputed land was part of the western one-third; however, what is equally clear from both parties’ testimony is that Mrs. Smith intended for her children to have equal shares of the property.” The majority does not conclude that Mrs. Smith intended the boundary line of the property to pass through the existing house, and the evidence does not support the conclusion that she intended to divide the geographical ownership of the house.
Reversing the trial court on a credibility and factual determination regarding boundary lines when the evidence is equally divided oversteps our bounds. “Whether possession is adverse to the true owner is a question of fact. We also note that a claimant may ‘tack on’ the adverse-possession time of an immediate predecessor in title.” White River Levee District v. Reidhar, 76 Ark. App. 225, 61 S.W. 3d 235 (2001). When the evidence is evenly posed, or nearly so, the judgment of the trial court on the question of where the preponderance of the evidence lies is persuasive. Belcher v. Stone, 76 Ark. App. 256, 998 S.W.2d 759 (1999). The location of a boundary is a question of fact, and we affirm unless the trial court’s finding is clearly against a preponderance of the evidence. Killian v. Hill, 32 Ark.App. 25, 28, 795 S.W.2d 369, 371 (1990). Matters of credibility are for the trial court to determine. Id. Boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question and may be affected by the concepts of acquiescence and adverse possession. Summers v. Dietsch, 41 Ark.App. 52, 849 S.W.2d 3 (1993).
In this case, the O’Dells received a deed and took possession of the house and the one acre subject to Mrs. Smith’s life estate in 1986. Mrs. Smith’s possession of the house and one acre is legally recognized by the O’Dells deed. Any and all rights she had to the Ricketts’ property was extinguished when she conveyed that property to the Ricketts without reservation. One who enters adversely under color of title and actually possesses any part of the tract is deemed to have constructive possession of the entire area described in the document constituting color of title. St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S.W.2d 882 (1944). Where one enters adversely upon an enclosed tract his possession of any part thereof is constructive possession of the entire enclosure. Kieffer v. Williams, 240 Ark. 514, 400 S.W.2d 485 (1966). See also Moses v. Dautartas 53 Ark. App. 242, 922 S.W.2d 345 (1999).
The trial judge’s determination that both Mrs. Smith and the O’Dells treated the land in dispute as their own is a critical factor in determining whether adverse possession was proven. Appellants argue that the nature of the use of the property could not fairly put them on notice that the O’Dells’ use was adverse. However, the continued occupancy of Mrs. Smith and the O’Dells from 1986 forward and the nature of their use of the house, drive, and storage building as a unit, is the very fact that put the Ricketts on notice that the use was adverse. Given the facts presented in this case, the trial judge did not err, and we should affirm.