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

Paul E. Danielson, Justice,

dissenting. Because the majority has misconstrued both the facts and the law in this case, resulting in a deprivation of Hatchie Coon’s property, I respectfully dissent. The decision relied upon by the majority does indeed make clear that the State can “take,” by prescription, lands that it has extended by artificial means. See State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014 (1917). However, the State’s action must be taken without the consent of the landowner. See id. at 321-22, 200 S.W. at 1016 (“When the waters of natural navigable lakes in this state are extended by artificial means, so as to cause the land of riparian owners to be flooded, without their consent, and this condition is not merely temporary, but is continued for a sufficient length of time for the standing waters to produce a distinctive new high-water mark for the waters of the lake bed, this gives the state, as the owner of such lake bed, the possession of the lands so covered to the high-water mark.”). This is clearly so because possession of lands with permission renders a claim of adverse possession without merit. See, e.g., Dotson v. Aldridge, 246 Ark. 456, 438 S.W.2d 464 (1969). See also 3 Am. Jur. 2d Adverse Possession § 47 (2008) (observing that adverse possession cannot be permissive and permissive possession is not adverse).

The issue in the instant case, as the majority correctly states, is whether Hatchie Coon consented to the State’s flooding of its property. The majority concludes that express consent to the flooding was required, but was not present; I disagree. A review of the record reveals multiple letters between members of Hatchie Coon and the Arkansas Game and Fish Commission. In those letters, Hatchie Coon was clearly requesting a raise in the water levels in the area, which clearly included Hatchie Coon’s property. These requests evidence Hatchie Coon’s knowledge that its property would be affected by any flooding and its consent to the Commission’s actions.1 Hatchie Coon specifically welcomed the interest of the Commission in the area, and Hatchie Coon specifically offered its assistance to the Commission in its efforts. How much more specificity is required to demonstrate consent to the Commission’s efforts?

The doctrine of adverse possession presupposes that the holding must be adverse to the owner. We have observed that if the original use and possession was permissive, it cannot become adverse until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice, equivalent to actual notice. See Mikel v. Development Co., Inc., 269 Ark. 365, 602 S.W.2d 630 (1980). Moreover, the evidence of the adverse holding when the original entry is by permission must be very clear. See id.

Here, the majority adopts the reasoning of our court of appeals in White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001), and holds that the “circuit court clearly erred in finding that Flatchie Coon consented, either expressly or implicitly, to the inundation of the island.” The problem is that the Reidhar case did not involve near the level of consent that we have in the instant case. There, the Levee District admitted that there was no evidence that it gave the appellees, who were found to have adversely possessed the property at issue, “express permission to clear and cultivate the land in dispute.” 76 Ark. App. at 229, 61 S.W.3d at 238. Instead, the Levee District merely argued that “the mere existence of a benefit accruing to the District” by the appellees’ and their predecessors’ occupation “implied the existence of permission.” Id. at 229-30, 61 S.W.3d at 238. That is clearly distinguishable from the situation here, where members of Hatchie Coon clearly approved of, encouraged, and offered their assistance to, the Commission’s efforts to flood the area.

It is clear to me that the Commission’s efforts in the area, which included Hatchie Coon’s property, were in no way adverse to Hatchie Coon. Not only were the State’s actions not adverse, Hatchie Coon permitted the State’s activities and, thereby, consented to them. For these reasons, the majority errs in its conclusion that the State acquired title to the property at issue by adverse possession, and I respectfully dissent.

Gunter, J., joins.

Indeed, the majority opinion acknowledges that the flooding by the Arkansas Game and Fish Commission was at the request of Hatchie Coon members and the St. Francis Lake Association.