Roberta Dismuke Cooper et al. v. Charles Johnson et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

ROBERTA DISMUKE COOPER, et al.

APPELLANTS

V.

CHARLES JOHNSON, et al.

APPELLEES

CA 01-219

January 30, 2002

APPEAL FROM THE OUACHITA COUNTY CHANCERY COURT

[E-99-75-1]

HON. HAMILTON HOBBS SINGLETON, JUDGE

AFFIRMED

This appeal involves a claim of adverse possession relating to several tracts of real property in Ouachita County, Arkansas. The chancellor quieted title in favor of appellants in some, but not all, of the property they claimed by adverse possession. Appellants allege the chancellor erred in his failure to quiet title in their favor in all disputed land. We affirm.

Appellees, the heirs at law of Georgia Johnson (now deceased), filed suit against appellants Roberta Dismuke Cooper and Grover Cooper. The appellees' complaint alleged that they were the owners and were in possession of the following described land located in Ouachita County, Arkansas: "The SE1/4 of the NW1/4, the SW 1/4 of the NE 1/4 and the NW 1/4 of the SE 1/4 of Section 12, Township 15 South, Range 17 West." The appellees further alleged that the appellants had trespassed and encroached upon the above described land, and asked the chancery court toenjoin them from maintaining any fences or other improvements upon the appellees' land and to quiet title in favor of them against the "apparent adverse claims" of appellants.

In response, the appellants alleged that they (and their predecessors in title) have been in possession of the disputed property continuously and openly for more than fifty years and that they have marked the boundary lines by fencing and other means to define and delineate the property that they claim. Additionally, appellants asked the chancellor to quiet title in their favor. Appellants argued that several landmarks identify the true boundary, which was beyond the line set in a survey commissioned by appellees and conducted by Lamar Kelly. Specifically, appellants claimed that the west line of the appellees' property is 108.17 feet north (established by yellow markings and an old net fence) and the east line is 256.72 feet north (marked by an old beech tree that is no longer in existence) of the line set by Kelly's survey.1

A portion of the property in dispute (1.31 acres and 0.233 acres) has been fenced by appellants. The larger portion is currently being used as a cow pasture (and was used by the appellants' predecessors as a pea field). The smaller portion is part of appellants' front yard.

At trial, appellees admitted that appellants fenced part of the property in dispute and that appellants had been using the fenced property since around 1979. Appellees were aware that appellants had sold timber from the fenced area. Although appellees asked appellants to remove the fence, at trial appellees admitted that they did not press the issue beyond a mere request. However, appellees testified that sometime in 1999 they noticed that appellants were attempting to claim landoutside of the fenced area. The appellants had marked certain trees with ribbon, paint, and rough burning. Appellees approached appellants about these new marks, and appellants responded that the marks represented where the boundary's true "line is supposed to be." In support of their claim that appellants did not adversely possess this area between the fenced area and the new markings, appellees introduced evidence of a variance in the timber on the disputed property. The proof showed that the timber type in the disputed area was more like the remaining portion of the disputed property (the area that appellees held legal title to) than the property titled to appellants.

The chancellor quieted title in favor of appellants in the two fenced areas (1.31 acres and 0.233 acres) after determining that they had proven title to the enclosed area by adverse possession and ordered Timberland Surveys Inc. to prepare plats of these two areas for the court. All the land in dispute that was not specifically described by the prepared surveys was quieted in favor of appellees. The appellants argue that the evidence presented at trial does not support the chancellor's decision, and they urge us to reverse the chancery court.

Chancery cases are reviewed de novo on appeal. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). We do not reverse the chancery court's findings unless they are clearly erroneous. Id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999).

To prove the common-law elements of adverse possession, the claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Anderson v. Holliday, supra. It is ordinarily sufficient proof of adverse possession that the claimant's acts of ownership are of such a nature as one would exercise over his ownproperty and would not exercise over the land of another. See id. Whether possession is adverse to the true owner is a question of fact. Id.

Here, the appellees have been in possession of the land north of the south boundary line of their property continuously for the past twenty years (except the fenced area that was awarded to appellants). Once appellees became aware that appellants were attempting to adversely possess the additional land in question, the appellees immediately filed suit to quiet title. The timber patterns support their claim. Further, the appellants have not proven that their adverse claim to the remaining portion of the land was "visible, notorious, distinct, exclusive and hostile." In light of this evidence, the chancellor's finding was not clearly erroneous.

Affirmed.

Hart and Griffen, JJ., agree.

1 In one of the exhibits used at trial, the additional north 108.17 feet claimed by appellants on the west boundary line is handwritten in an incorrect location. It is actually placed on a portion of land that is already owned by the appellants (three acres that they acquired from Dixie Warren), instead of along the appellees' property line. However, the transcription error does not impact the validity of the chancellor's decision.