Moses v. Dautartas

Dayton MOSES, et ux. v. Ella DAUTARTAS

CA 95-366                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered May 15, 1996


1.   Adverse possession -- requirements for establishing. -- To
     establish title by adverse possession, appellee had the burden
     of proving that she had been in possession of the property
     continuously for more than seven years and that her possession
     was visible, notorious, distinct, exclusive, hostile, and with
     intent to hold against the true owner.  

2.   Adverse possession -- proof -- sufficiency. -- With respect to
     adverse possession, the proof required as to the extent of
     possession and dominion may vary according to the location and
     character of the land; it is ordinarily sufficient that the
     acts of ownership are of such a nature as one would exercise
     over her own property and would not exercise over that of
     another, and that the acts amount to such dominion over the
     land as to which it is reasonably adapted.  

3.   Adverse possession -- question of fact. -- Whether possession
     is adverse to the true owner is a question of fact.  

4.   Appeal & error -- review of chancery cases. -- Although the
     appellate court reviews chancery cases de novo on the record,
     it does not reverse the decision of a chancellor unless the
     chancellor's findings are clearly against the preponderance of
     the evidence, giving due deference to the chancellor's
     superior position to judge the credibility of the witnesses
     and the weight to be given their testimony.

5.   Adverse possession -- one claiming without color of title must
     show actual possession for seven years. -- The quantum of
     proof necessary for a trespasser to establish title to land by
     adverse possession is greater where the trespasser has no
     color of title; when one is claiming without color of title,
     as appellee did, she must show pedal or actual possession to
     the extent of the claimed boundaries for the required seven
     years.

6.   Adverse possession -- chancellor's finding that appellee
     proved actual possession upheld. -- Where the exact boundaries
     and description of the claimed area were presented in a survey
     and the description was incorporated into the final judgment;
     where appellee and her son testified that their activities
     covered the area in question; and where the chancellor viewed
     the area and assessed the credibility of the witnesses, the
     appellate court held that the chancery court's finding that
     appellee proved actual possession to the extent of the claimed
     boundaries was not clearly against a preponderance of the
     evidence.  


     Appeal from Garland Chancery Court; Vicki S. Cook, Chancellor;
affirmed.
     Dan McCraw, for appellants.
     D. Scott Hickam, for appellee.

     John Mauzy Pittman, Judge.*ADVREP*CA2*                    EN BANC




                                       CA 95-366
                                        
                                                     May 15, 1996      



DAYTON MOSES, ET UX.                 AN APPEAL FROM GARLAND COUNTY
                 APPELLANTS          CHANCERY COURT
                                     NO. 93-620                       
VS.
                                     HONORABLE VICKI S. COOK,
ELLA DAUTARTAS                       CHANCELLOR   
                 APPELLEE
                                     AFFIRMED






                      John Mauzy Pittman, Judge.


     The appellants, Dayton and Betty Moses, appeal from a chancery
court order holding that the appellee, Ella Dautartas, proved
adverse possession of land to which appellants hold legal title. 
We affirm.
     The parties to this appeal own adjoining property in the
Quinn's Lake Park Subdivision in Garland County.  Appellee filed a
complaint in May 1993, claiming ownership by adverse possession to
a narrow strip of land on the western edge of appellants' property. 
Appellee asserted that she had utilized and maintained the area for
over seven years and that a portion of a concrete drainage system
she had constructed had been located in the area since 1985.  No
one resided on appellants' property until appellants bought it in
June 1992 and built a house.  This action was filed after appel-
lants built a fence in the disputed area.
     It is well settled that, in order to establish title by
adverse possession, appellee had the burden of proving that she had
been in possession of the property continuously for more than seven
years and that her possession was visible, notorious, distinct,
exclusive, hostile, and with intent to hold against the true owner. 
The proof required as to the extent of possession and dominion may
vary according to the location and character of the land.  It is
ordinarily sufficient that the acts of ownership are of such a
nature as one would exercise over her own property and would not
exercise over that of another, and that the acts amount to such
dominion over the land as to which it is reasonably adapted. 
Whether possession is adverse to the true owner is a question of
fact.  See Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251
(1990); Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990). 
Although this court reviews chancery cases de novo on the record,
it does not reverse the decision of a chancellor unless the
chancellor's findings are clearly against the preponderance of the
evidence, giving due deference to the chancellor's superior
position to judge the credibility of the witnesses and the weight
to be given their testimony.  Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991); Appollos v. Int'l Paper Co., 34 Ark. App. 205,
808 S.W.2d 786 (1991).
     Appellee, who purchased her property in 1972, testified   that
she and her son, Ray Dautartas, began living on the property in
1976.  She stated that during the following years, she and her son
utilized and maintained the disputed area by stacking lumber and
roof shingles there, by mowing and raking the area, by burning
leaves there, and by uprooting a tree in the area in 1982. 
Appellee also stated that her use of the area could be seen from
the road and that there were no objections to the use.  In
addition, appellee presented bills dated in 1985 for the construc-
tion of the concrete drainage system, which curves around her
garage and is partly in the disputed area.  She testified that an
underground pipe was later installed in the area to improve the
drainage system.  Ray Dautartas testified that he cut grass and
raked leaves in the area and also used it as a storage area for
firewood and shingles.  He stated that the woodpile was approxi-
mately four feet high and sixteen feet long.  Wade Spainhour, who
surveyed the property for appellee, testified that he saw landscape
timber and part of the drainage system in the area.  He stated that
appellee's property to the east of the area was wooded with normal
ground cover but that there was ground ivy in the disputed area,
resulting in that area looking "different."
     Appellant Dayton Moses testified that he and his wife bought
their property in May 1992 and built a house there.  He stated that
during the construction of the house, appellee complained that a
construction worker had intruded on her property.  He also stated
that he did not see any maintenance or use of the disputed area by
appellee.  Mr. Moses testified that aside from trash such as cans,
broken glass, dumped concrete, and a half-buried tire, the only
thing he saw in the area was a tree that had been uprooted and a
pile of dirt.  He stated that when appellee offered to buy a
portion of the disputed area, he refused to sell it.  Appellant
Betty Moses testified that she saw no sign of maintenance in the
area. 
     James Stevens, whose grandmother owned the Moses' property for
many years prior to her death in 1990, testified that he gave the
property a "cursory overview" every four months.  He stated that he
did not see stacks of wood and shingles or anything else unusual in
the disputed area.
     The chancellor, who viewed the property, stated in a letter
opinion that pursuant to the survey presented by Mr. Spainhour and
her inspection of the property, the concrete drainage structure
clearly encroached on appellants' property and had done so in
excess of seven years.  The chancellor stated that appellee and her
son "presumed their encumbrances were proper and immediately took
action when those encroachments were challenged by [appellants]." 
After discussing in detail the testimony presented at trial, the
chancellor concluded that the evidence showed "that for over seven
years the area in dispute was utilized by [appellee] with a clear,
distinct and unequivocal intention that the disputed area belonged
to her.  Moreover, no one challenged the use of this land and,
further, the existence of the underground pipe and concrete
structure is not disputed."
     On appeal, appellants concede that appellee met her burden in
showing adverse possession of "the two or three square feet of
concrete in her garage drainage system that are obviously over the
line."  Appellants argue, however, that appellee failed to show
possession to the full extent of the land she claimed.  The
appellee, who makes her claim without color of title, responds that
she presented sufficient evidence of her possession of the property
and of her intent to hold adversely against the true owner.
     The quantum of proof necessary for a trespasser to establish
title to land by adverse possession is greater where the trespasser
has no color of title.  DeClerk v. Johnson, 268 Ark. 868, 596 S.W.2d 359 (Ark. App. 1980).  When one is claiming without color of
title, as appellee does here, she must show pedal or actual
possession to the extent of the claimed boundaries for the required
seven years.  Id.  Appellants appear to be arguing that appellee
was required to place a structure or improvement on the disputed
area.  We do not agree.  The difference between claiming adversely
with and without color of title was discussed in Clark v. Clark, 4
Ark. App. 153, 632 S.W.2d 432 (1982), as follows:
     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).  Where, as here, one
     enters with neither color of title nor enclosure he is
     unaided by constructive possession and his claim is
     limited to that area over which he maintains actual pedal
     possession.  DeClerk v. Johnson, 268 Ark. 868, 596 S.W.2d 359 (1980).
4 Ark. App. at 159-60, 632 S.W.2d  at 436-37.  Here, appellee
claimed actual possession of the disputed area, not constructive
possession.
     In light of the total circumstances of this case, we find that
the chancellor's findings are not clearly against a preponderance
of the evidence.  The chancellor noted in the letter opinion that
appellee's son corroborated appellee's testimony and stated:
     Specifically, he testified that he worked on the proper-
     ty, cutting grass, raking leaves, cutting and hauling
     wood and also storing shingles for roofing on the
     disputed land.  He testified that the pile of lumber and
     wood as well as the shingles were placed in broad
     daylight behind the garage on the now disputed property,
     and no one ever challenged his or his mother's use of the
     land for those purposes.  The woodpile was highly
     visible, he stated, for it was at least sixteen feet long
     and four feet high.
The chancellor also discussed Mr. Stevens' testimony that there was
no visible sign of encroachment on his grandmother's property. 
Although the chancellor described the testimony as credible, she
stated:  "[H]owever, he was unable to deny the existence of the
concrete drainage structure as well as the drainage pipe.  These
actual encroachments were over seven years old and were readily
visible upon the Court's inspection of the property."
     In the dissent's view, this case must be reversed and remanded
to cure a perceived inconsistency between the chancellor's letter
opinion and the final judgment.  We find this view to be flawed in
several respects.  First, the chancellor's findings in the letter
opinion clearly did not constitute a judgment.
          The decisions, opinions, and findings of a court do
     not constitute a judgment or decree.  They merely form
     the bases upon which the judgment or decree is subse-
     quently to be rendered and are not conclusive unless
     incorporated in a judgment or a judgment be entered
     thereon.  They are more in the nature of the verdict of
     a jury and no more a judgment than such a verdict.
Thomas v. McElroy, 243 Ark. 465, 469-70, 420 S.W.2d 530, 533 (1967)
(citations omitted).  See also Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995).  A final determination of the parties' rights
was not made until the entry of the judgment.  Second, the issue of
any inconsistency between the chancellor's letter and the final
judgment was neither raised by objection or motion below nor raised
by the parties on appeal.  Even if the trial court were in error,
it cannot be seriously argued that the case should be reversed
because to do so would require the application of the "plain error"
doctrine, which we do not have in Arkansas.  Security Pac. Housing
Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Lynch
v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Pharo v. State, 30
Ark. App. 94, 783 S.W.2d 64 (1990).  
     The exact boundaries and description of the claimed area are
presented in Mr. Spainhour's survey, and this description was
incorporated into the final judgment.  Appellee and her son
testified that their activities covered this area.  The chancellor
viewed the area and assessed the credibility of the witnesses, and
the court's finding that appellee proved actual possession to the
extent of the claimed boundaries is not clearly against a prepon-
derance of the evidence.  
     Affirmed.
     Jennings, C.J., and Mayfield and Rogers, JJ., agree.
     Griffen and Neal, JJ., concur in part and dissent in part.*ADVREP*CA2-A*               EN BANC





                                   CA95-366

                                                May 15, 1996


DAYTON MOSES, ET AL.               AN APPEAL FROM GARLAND         
                APPELLANTS         COUNTY CHANCERY COURT
                                   NO. 93-620

V.                                 HON. VICKI S. COOK, JUDGE


ELLA DAUTARTAS
                APPELLEE           CONCURRING IN PART,
                                   DISSENTING IN PART





                   Wendell L. Griffen, Judge.

     I agree with the decision to affirm the chancellor in this
adverse possession case to the extent that actual and continuous
possession is proved for the disputed area north of the concrete
drainage structure.  However, I write to explain my view that the
decree must be reversed in part and remanded to the chancellor so
that it can be reformed to reflect the true extent of the appel-
leeþs actual (þpedalþ) possession.
     The decree was drafted by counsel for appellee at the
direction of the chancellor in an opinion letter dated August 24,
1994.  That letter stated, in pertinent part:
     The primary issue in this case, after one has
examined the property, is whether or not there was
sufficient adverse possession or maintenance on the
property to meet the requirements of adverse possession
concerning that property north of the visible concrete
drainage structure.  The testimony of the Plaintiff
[appellee] and her son indicates that they presumed their
encumbrances are proper and immediately took action when
these encroachments were challenged by defendants
[appellants].  Plaintiff and Plaintiffþs son testified
that the concrete drain had existed for over seven years
and that the other encroachments leading to the road had
existed well over seven years.  Mrs. Dautartas and her
son testified to the following facts:  she purchased the
property in 1976; she mowed and raked and built the
garage with her sonþs help which encroached on the
disputed property; she utilized the disputed area to
stack wood or to store construction materials.

. . . .

Plaintiff is only claiming the disputed area of which she
has maintained actual possession.  This area is the area
from the constructed drainage structure north to Atkin-
sonþs Road.

     Mr. Hickam [counsel for appellee/plaintiff] is
requested to prepare a precedent for entry by the court,
complete with the proper legal description of Plaintiffþs
acquired property and including the findings consistent
with this letter decision.  (emphasis added)

     It is beyond question in actions for adverse possession that
where one enters with neither color of title nor enclosure she is
unaided by constructive possession, and her claim is limited to
that area over which she maintains actual pedal possession.  Clark
v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982).  Appellee claimed
no title by color of title, and conceded the appellantþs legal
title.  Thus, she was a trespasser who claimed title by adverse
possession.  Both the evidence at trial and the chancellorþs letter
opinion limited the area of appelleeþs pedal possession to land
north of the concrete drainage structure.  There was no evidence of
pedal possession south of that point.  The chancellor did not find
that there was evidence of pedal possession south of that improve-
ment.  Therefore, the decree is clearly erroneous because the legal
description of the property that appellant acquired by adverse
possession includes land south of the concrete drainage structure. 
Reversal and remand is necessary if the decree is to be consistent
with the trial proof, and if the result is to be consistent with
established notions of justice regarding the extent that a
trespasser can acquire title by adverse possession.
     I am authorized to state that Judge Neal joins in this
opinion.