Bobby Battles and wife, Joyce Battles v. Marckel E. Dickens

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION III

BOBBY BATTLES and wife, JOYCE BATTLES

APPELLANTS

V.

MARCKEL E. DICKENS

APPELLEE

CA 00-213

November 8, 2000

APPEAL FROM THE FAULKNER COUNTY CHANCERY COURT,

SECOND DIVISION [E-93-971]

HONORABLE LINDA P. COLLIER, CIRCUIT/CHANCERY JUDGE

AFFIRMED

This case involves a property dispute in which appellants, Bobby and Joyce Battles, claim ownership by adverse possession. Appellee, Marckel Dickens, traces his title to the property back through his family for close to one hundred years. The chancellor decided the case in favor of Dickens, quieting title in him and permanently enjoining appellants from encroaching upon the property. For their sole point of appeal, appellants contend that the chancellor erred by finding that appellants had not established by a preponderance of the evidence their ownership of the disputed property by adverse possession. We affirm.

Chancery cases are tried de novo on appeal. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). However, this court does not reverse a chancellor's finding of fact unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence

to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

In order to establish title by adverse possession, a claimant has the burden of showing that he has been in possession of the property continuously for more than seven years and that his possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Id. Whether possession is adverse to the true owner is a question of fact. Id. In reviewing a chancery court's findings with regard to adverse possession, due deference is given to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.

Here, the main portion of appellee's property, which is located in the town of Greenbrier, lies north of Fourth Street, which runs in an east-west direction; he also has title to a strip of property running along the south side of Fourth Street. Fourth Street was an old wagon road that was grandfathered into the city and is now maintained by the city.

Appellants purchased their property in March 1993 from the Teel estate. Their deed contained a description that overlapped onto the strip of land located south of Fourth Street to which appellee holds record title. It is this small strip of land, said to overlap an area approximately thirteen to sixteen feet wide and 456 feet long, running east-west along the south side of Fourth Street, that is involved in this dispute. In particular, this dispute is over the portions of this strip of land that are intersected by the two ends of a horseshoe-shaped roadway built by appellants.

The Teels, who owned the property prior to appellants, purchased it from appellant Bobby Battles' brother, Dean. Dean Battles purchased the property in 1966 or 1967, andbuilt a house with a driveway that extended from the house across the disputed strip to connect with Fourth Street. This driveway, however, is not located on either of the two portions of the strip of land that is now intersected by the new, horseshoe-shaped roadway built by appellants.

When appellants purchased their property in 1993, they planned to build a residential development. They began cutting trees, removing a fence that had existed along the southern boundary of the strip of land for as long as any of the witnesses could remember, and building the horseshoe-shaped road that connects with Fourth Street in two places, on either side of the location where the 1967 driveway had been built by Dean Battles. Appellants' actions in this regard prompted appellee's parents, who owned the strip at that time, to file the instant action on October 13, 1993, to enjoin appellants from encroaching upon the property. Following appellee's father's death and his mother's conveyance of the property to him, the action was revived in January 1998, naming him as a party, and an amended complaint was filed in May 1998.

Appellants did not meet their burden of proving that the Teels, appellants' immediate predecessors in title, exercised adverse possession over the disputed property so as to be able to tack that period of possession onto any other periods to satisfy the seven-year requirement. In fact, there were only two periods of time for which any testimony was presented that could be construed as establishing adverse possession on any portion of the property. The first was the period from late 1966 to 1972, during which Dean Battles testified that he built the driveway connecting his house to Fourth Street (but which does not include the roadway atissue here), mowed the property, and removed a portion of a fence. The second was the period from March 26, 1993, to October 13, 1993, during which appellants began removing the remainder of the fence, cutting the trees, and building the horseshoe-shaped road that connects with Fourth Street in two places, on either side of where the 1967 driveway had been located. However, neither of these two time periods alone satisfies the seven-year statutory period for adverse possession and no other period of adverse possession was proven so as to be able to employ the concept of tacking; therefore, it is not necessary to determine whether the actions of Dean and Bobby Battles would have amounted to adverse possession of any portion of the property. Accordingly, we find no clear error in the chancellor's decision that appellants did not satisfy their burden of proving adverse possession of the disputed portions of property for the statutory period of time.

Affirmed.

Koonce and Griffen, JJ., agree.