LTB Land & Timber Company, Inc. v. Mildred Wren Eggleston
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ARKANSAS COURT OF APPEALS
JUDGE DAVID M. GLOVER
NOT DESIGNATED FOR PUBLICATION
DIVISION II
CA06-98
October 25, 2006
LTB LAND & TIMBER COMPANY,
INC.
APPELLANT
V.
MILDRED WREN EGGLESTON
APPELLEE
APPEAL FROM THE NEVADA
COUNTY CIRCUIT COURT
[CV-2004-42-2]
HONORABLE DUNCAN M.
CULPEPPER, JUDGE
AFFIRMED
This is a property case in which appellee, Mildred Wren Eggleston, as trustee of
the Mildred Wren Eggleston Revocable Trust, brought an action against appellant, LTB
Land & Timber Co., Inc., seeking judgment for possession of disputed lands and for
damages for the value of timber cut by LTB. The trial court found in appellee’s favor,
and judgment was entered on August 22, 2005, declaring ownership of the disputed
property to be in appellee and awarding $15,625.51, plus interest, in damages for the
timber that appellant cut from the disputed property.
Appellant raises two points of
appeal: 1) the trial court’s conclusion that the trees marked with white paint constituted a
boundary by acquiescence is clearly erroneous, and 2) the trial court’s conclusion that
appellee had proven title to the disputed strip of land by adverse possession is clearly
erroneous. Finding no error, we affirm.
David Webb, who conducted the survey for appellant that revealed the property
line problems in this case, testified about how he conducted his survey of the property.
He stated that he was employed by Larry Carlton, on behalf of LTB, in March 2004 to
survey the NW ¼ of Section 22, Township 13 S, Range 22 W in order to establish the
east line of the NW ¼, which would also be the west line of the NE ¼. He explained that
he did not accept a 3/8 inch rod that he found to be the NE corner of the NW ¼ because it
was out of position as far as distance between the two section corners, the NW corner and
the NE corner. Having acknowledged that the rod was already there when he did his
survey, he testified that the only thing for which it could have been set was the North
quarter section of 22. He further stated that after he “ran the section out and when we got
to what we computed to be the center of 22, some 21 feet to the east, we noticed a pine
knot that appeared to be a corner set for Potlatch”; that he could not accept it as the SE
corner because it was too far away from where he found that the corner should be; and
that the last time pine knots were used to mark corners was thirty to forty years ago.
Finally, he testified that a line from the 3/8 inch rod he found to the pine knot would
follow a white painted line that he saw, off and on.
Webb explained that he had referred to some previous surveys but that he did not
find any surveys that said the 3/8 inch rod was set by any registered surveyor. He
acknowledged seeing the white line painted on some trees, but stated that he had no idea
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who had painted it. He stated that based upon his experience as a surveyor, the line that
he established as the east line of the NW ¼ is the dividing line between the NW ¼ and
the NE ¼.
Webb testified that appellee’s son, John Eggleston, was present when he marked
the surveyed line and that the painted line was on one side of his line on part of it and on
the other side of his line on part of it. He said that Mr. Eggleston told him that he
believed the white line was “the line.”
Webb stated that the property was wild and
unimproved with no fences.
Daniel Glaze testified that he had been a forester since 1976 and that he had been
familiar with the property owned by appellee since that time.
He stated that his
knowledge of the white line came from timber cutting that he had noticed over the past
ten years, even though he had not actually been involved in the cutting. He stated that the
most recent cutting occurred in 2004; before that it was five to seven years earlier; and
then about five years before that. He stated that the first two times were selective cut and
the last time all that was merchantable was cut. He explained that the timber was cut on
the NW ¼, which is opposite the Eggleston land; that the party cutting on the adjacent
property stopped cutting at basically the same place each time; and that he was not aware
of the white line at the time, but that he has been told by the Egglestons that the white line
was the line. He explained that the last cutting crossed the painted line but that the
previous ones did not.
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On cross-examination, Glaze stated that the first time he saw the white line was in
2000 or 2001, before the last cutting in 2004. He said that the pine knot shown on the
survey would be the corner but that he had no reason to know of any other corners Webb
might have run from. He acknowledged that he had had no conversations with anyone
from LTB and that he did not actually know why the cutting stopped before the white
line.
Charles Pennington testified that he is a forester; that he had managed timber land
for Mildred Eggleston at various times since 1968; and that he was familiar with the land
appellee owns in the W ½ of the NW ¼ of 22-13-22, south of Hwy. 278. He stated that
while he was managing timber on that land, there was an iron pin just south of Hwy. 278,
and a white line to a corner on the southwest side. He stated that he did not remember if
he saw anything at that corner but that he has seen the stob at the north line and the white
painted line. He stated that he was reasonably sure that “Mr. Boswell painted that line
when he was looking after it for Mrs. Eggleston.” Pennington also explained that he
thought the line was there the first time that he saw the property and that he knew it was
there in the mid to upper seventies. He stated that he did not repaint the line.
Pennington stated that he knew timber was cut on the other side of the white line
more than one time and that one time was in the late 70s or early 80s, and that it was
clear-cut about two years ago. He stated that both times the timber was cut the party
cutting on the adjacent property did not cross the white line. He stated that he has helped
selectively cut appellee’s timber and that appellee did not cut across the white line. He
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stated that when appellee cut up to the line no one ever complained. He acknowledged
that he had never had any discussions with any of the owners of the land on the other side
of the boundary line. He stated that he had cut some timber for Potlatch on the south side
of this property a couple of years ago and that the white line was still there. He said that
he never noticed anyone cutting over the white line and that if they had he would have
noticed it.
He explained that you could tell from looking at one of the photo exhibits
where the line is because there were big trees on appellee’s side and only small trees on
the other side.
On cross-examination, Pennington stated that he did not know who set the pin that
is south of the highway; that he did not recall seeing a pin or a pine knot at the south end;
and that he knew it was at the corner but that he did not recall seeing a pine knot. He
acknowledged that he had never had any conversations with anyone having an interest in
the party opposite appellee’s land about the white line being the dividing line. He said
that Mr. Boswell painted the line in the 1970s.
Appellee, Mildred Wren Eggleston, testified that she had owned the property since
1965 and that she deeded it to her trust in 2000. She stated that she has people who
manage her land; that she was not acquainted with the people who own the adjoining
land; that she had not had any discussions with them; and that she did not know of any
prior disputes as to the lines. She stated that she cut saw logs off her land in 1990 up to
the white-painted line; that a survey had not been done at that time; that the white line
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was the established line since her parents owned the land in 1952; and that no one
complained when she cut the timber in 1990.
Appellee testified that the owners on the other side of the line had cut timber three
times to her knowledge and that they had never cut across the painted line, always
adhering to that line as the common line. She stated that the clear cut occurred one or two
years before it was sold. She stated that the white line is the established line; that she did
not know when it was painted white but that it was that way in the 1970s because she
would look at it; and that she knows where all of her property lines are but that she could
not say that any of them would stand up under a survey.
On cross-examination, Ms. Eggleston stated that
her first knowledge of the
painted line was in the 1970s; that she has been back down there since 1975 full time; that
she would not know if the painted line was there prior to 1976; that she had never had the
land surveyed; that she had never had conversations with the other landowners about the
property lines; that she had not enclosed her property with fences; and that the land was
timberland.
John Eggleston, appellee’s son, testified that
he was familiar with the land
involved in the dispute and had been familiar with it since the mid-1970s; that he had
been involved in managing the property since that time and that he had been in sole
charge since 1983. He stated that the white painted line was there when he first became
familiar with the property; that there was a pin just off Hwy. 278, a 3/8 inch rod; that he
first saw the rod in 1978; that there was a pine knot on the very south end; that once you
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run that half-mile leg where it goes to Potlatch’s corner, there was a pine knot out there;
that he found the pine knot in 1986 or 1987; that Mr. Boswell painted the line in 1975;
and that he (Eggleston) repainted it in 1987, 1992 or 1993, and again in 2003. He stated
that he painted the same trees over and over. He stated that the log cutting appellee did in
1990 stopped at the white line, and that no one ever complained that appellee had cut over
the line.
John Eggleston stated that the timber on the adjoining land had been cut three
times – first in 1975 or 1976, second in 1992 or 1993, and the last time, it was clear-cut in
2003. He stated that appellee did not cut across the white line but rather up to it. He
stated that he had not had any discussions with the adjoining landowners about the
property line; that in the past when he noticed that someone was cutting the adjoining
lands he would go out and flag the line; and that he did that on two occasions. He stated
that when the adjacent property owners cut the last time, which was the clear cutting, Curt
Bean Lumber did it and they placed blue flags along the white painted line. He stated that
he took photos of the area in early March 2004 when the survey was done before LTB cut
the timber. He went through the photo exhibits and explained what each one depicted. In
addition, he stated that the trees were marked with purple paint for hunting leases; the
first time the land was leased to Larry Carlton and Robert Martin and that it was then
leased to RBL Hunting Club. He stated that he considered the white painted line as the
west line of the property and that had never been challenged.
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On cross-examination, John Eggleston testified that the white line was first painted
by Mr. Boswell in 1975 or 1976; that he knew of no painted line prior to that time; that
Mr. Boswell worked for his family; and that the first survey was done by Mr. Webb, who
found the true line to be some feet east of the white painted line on the north end and
some feet west of the pine knot on the south end. He acknowledged that he had never
talked to or met any of the prior owners of the property about the boundary line. He
stated that appellee did not establish the line, she just kept up what was there; that he
understood there was a line there before it was painted; that whenever some cutting was
going on, a representative of his family would be there to tell them where the line was;
that he had no conversations with the owners of the other property; that prior to LTB
buying the property, the owners did not live around the property and he never met them;
that both properties suffered substantial damage from blown down trees in 2004; and that
when those blown down trees were cut, there was no cutting past the survey line
established by Webb in 2004.
In addition to the testimony presented at the hearing in this matter, the parties
stipulated, inter alia, to the following facts:
!
Mildred Wren Eggleston Revocable Trust ... owns the Northeast Quarter of
Section 22, Township 13 South, Range 22 West in Nevada County,
Arkansas.
!
Mildred Wren Eggleston obtained title to the Northeast Quarter from her
parents in 1965.
!
Eggleston Trust obtained title to the Northeast Quarter from Mildred Wren
Eggleston, et ux in 2000.
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!
LTB Land & Timber Co., Inc. ... owns the Northwest Quarter of Section 22,
Township 13 South, Range 22 West in Nevada County, Arkansas ....
!
LTB obtained title to the Northwest Quarter from John Robert Blackeby in
2003.
LTB and its predecessors in title have had record title to the Northwest
Quarter since 1929 when the property was deeded to Cora Epps. This chain
of title is unbroken.
!
!
The two tracts join and each party or its predecessors have paid the taxes on
its tract.
Adverse Possession
Whether possession is adverse to the true owner is a question of fact. Robertson v.
Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004). The standards governing appellate
review of an equity matter are well established. Although this court reviews equity cases
de novo on the record, we do not reverse unless we determine that the trial court’s
findings of fact were 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 conviction that a mistake was committed. Id. In reviewing a trial
court’s findings of fact, we give due deference to the trial judge’s superior position to
determine the credibility of witnesses and the weight to be accorded to their testimony.
Id.
In order to establish title by adverse possession, appellee had the burden of proving
that she had been in possession of the property in question continuously for more than
seven years and that the possession was visible, notorious, distinct, exclusive, hostile, and
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with the intent to hold against the true owner. McWilliams v. Schmidt, 76 Ark. App. 173,
61 S.W.3d 898 (2001). In addition, Arkansas Code Annotated section 18-11-106 (Supp.
2005) provides that in order for a person to establish title by adverse possession, the
person must have actual or constructive possession of the property and have either held
color of title to the property for at least seven years and during that time paid ad valorem
taxes on the property or held color of title to real property that is contiguous to the
property being claimed by adverse possession for a period of at least seven years, and
during that time have paid ad valorem taxes on the contiguous property to which the
person has color of title.
Here, the parties stipulated that appellee held color of title to, and had paid ad
valorem taxes on, property that was contiguous to the land that appellee claimed by
adverse possession for more than the statutory period. Consequently, the only real issue
was whether appellee had been in possession of the lands to which she claimed title by
adverse possession. The trial court determined that appellee had been in possession of the
lands, and we find no clear error in that finding. The property at issue is primarily located
east of a white line painted on trees, and the white painted line roughly approximated that
which would be formed by drawing a straight line from the 3/8 inch rod found by David
Webb, the surveyor, to a pine knot also found by Webb. In addition, there was testimony
that the white line had been there approximately thirty years. Other persons familiar with
the property also testified about the white line. Appellee’s acts of possession included
re-painting the white line on at least three occasions; making it a point to be present and
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to flag the area when the owners of the contiguous property were cutting timber so that
timber was not cut beyond the white line; and leasing the land, including the disputed
portion, for hunting purposes as shown by purple paint markings that followed the white
line in the disputed area. We hold that the trial court was not clearly erroneous in finding
that appellee’s possession satisfied the requirements for establishing adverse possession.
Boundary by Acquiescence
When adjoining landowners silently acquiescence for many years in the location of
a fence as the visible evidence of the division line and thus apparently consent to that line,
the fence line becomes the boundary by acquiescence. McWilliams, supra. It is not
required that there be an express agreement to treat a fence, or by analogy a white painted
line, as a dividing line; such an agreement may be inferred by the actions of the parties.
Id. Acquiescence need not occur over a specific length of time, although it must be for a
long period of time. Id. A boundary line may be established by acquiescence whether or
not it has been preceded by a dispute or uncertainty as to the boundary line. Id. When a
boundary line by acquiescence can be inferred from other facts presented in a particular
case, a fence line, whatever its condition or location, is merely the visible means by which
the acquiesced boundary line is located. Id.
The standard of review regarding boundaries by acquiescence is the same as that
for adverse possession. As with the trial court’s finding that appellee established the
elements of adverse possession, we hold that the trial court was not clearly erroneous in
finding that the white line represented a boundary by acquiescence.
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Although Webb rejected as inaccurate the notations that the rod marked the NE
corner of the NE ¼ of the NW ¼ and that the pine knot marked the SE corner of the SE ¼
of the NW ¼, the trial court concluded that “[t]he white painted line, the 3/8ths inch rod
found by David Webb, surveyor, and the pine knot found by David Webb all are evidence
of what the owners of the two tracts of land believed was the true property line prior to
the Webb survey.” There was evidence that the white line had existed for more than
thirty years; that it corresponded with the 3/8 inch rod and the pine knot; and that
appellant’s predecessors in title had honored the white line in cutting timber on at least
three occasions over twenty-five years, with appellee’s representatives present at the
scene to make certain the line was not crossed in cutting timber.
Finally, we note that appellant also contended that the trial court’s findings of both
adverse possession and boundary by acquiescence were contradictory.
However,
appellant cited no legal authority for its position and made no compelling argument that
the trial court had erred in that regard. Moreover, in Vaughan v. Chandler, 237 Ark. 214,
372 S.W.2d 213 (1963), our supreme court utilized both theories. Accordingly, without
authority and more convincing argument from appellant, we are not convinced that
appellant’s position in this regard provides a basis for reversal.
Affirmed.
C RABTREE, J., agrees.
H ART, J., concurs.
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