Mary Abels and Gerald Abels v. Cleo Copelin, Huey Ladon Copelin, and Wayne Copelin

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

CA02-718

March 12, 2003

MARY ABELS AND GERALD ABELS

APPELLANTS AN APPEAL FROM POLK COUNTY

CIRCUIT COURT

v. [NO. E99-255]

HONORABLE GAYLE FORD

CLEO COPELIN, HUEY LADON CIRCUIT JUDGE

COPELIN, AND WAYNE COPELIN

APPELLEES AFFIRMED

This appeal concerns a dispute between neighbors over a .1179-acre strip of land along their common border. The trial judge ruled that appellee Cleo Copelin had acquired title to the strip through adverse possession. We affirm.

Appellant Mary Abels and her son Gerald own 83.5 acres of land in Polk County. Mary bought the property from the First United Methodist Church in May of 1987. She established a joint tenancy with Gerald in 1997. Cleo Copelin owns a tract of land just west of the Abels property. Both properties are bound on the north by Highway 71. The surveyed boundary between the properties is a "forty" line that separates two quarter/quarters.

The tract at issue is a small, triangular strip situated between Highway 71 on the north and County Road 50 to the south. It occupies about fourteen feet of frontage along Highway71 and about sixty-four feet along County Road 50. Its western border runs along the forty line for 184 feet until it reaches County Road 50; its eastern border runs along a ditch between Highway 71 and County Road 50. It is a flat, grassy piece of land.

In March of 1999, a disagreement arose over ownership of the strip when a very large double-decker billboard was erected thereon, pursuant to a lease agreement executed between Cleo and Advantage Outdoor Company. Appellants objected, claiming that the billboard was on their property, and a serious dispute arose between them and Cleo's sons, Ladon and Kenneth, over ownership of the strip. Appellants obtained a survey, which showed that the .1179 acres was included in their property description. Nevertheless, appellees continued to make use of the land over appellants' objections by putting a dog pen on it, storing a camper shell on it, and mowing it.

On August 4, 1999, appellants filed suit to enjoin appellees from trespassing on the strip, renting it to third parties, or otherwise interfering with its quiet enjoyment. They also sought damages for trespass, assault, battery, and other misconduct allegedly committed by appellees during the parties' disagreements over the land. Appellees answered that they had acquired ownership of the strip by adverse possession, and they sought to quiet title to it in themselves.

Following a trial, the judge found that Cleo Copelin had proved adverse possession of the subject property, and he denied appellants' petition for an injunction. Appellants appeal from that ruling.1

To prove the common-law elements of adverse possession, a 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. White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001). 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 own property and would not exercise over the land of another. Id.

We do not reverse a trial court's finding of adverse possession unless it is clearly erroneous. See Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999). A finding 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. Id. We defer to the trial court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.

We first address appellants' argument that appellees failed to prove seven continuous years' use of the strip. They correctly point out that, to constitute effective adverse possession, there must be continuous possession for the full seven-year period. See Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973). If there is a break in the continuity of the adverse holding, the period of limitations begins anew. Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982).

The pertinent proof at trial was as follows. Mary Abels testified that her first notice that appellees claimed the disputed strip came in March of 1999 when the billboard was erected. According to her and her son Jack, who lived on the property with her, she hadplanted wild flowers on the tract, held a flea market on it in May of 1999, and mowed and brush-hogged the area three or four times a year since 1987. Both testified that they had never seen appellees use the tract before 1999.

By contrast, appellees testified to activities on the strip dating back to 1979. The Copelin property was purchased by Cleo and her late husband Huey in 1973. In 1978, Huey established a car business on the land. According to Ladon, Huey directed him and his brother Kenneth to mow the property, beginning in 1979, using the ditch as the boundary line. Ladon testified that he and Kenneth have maintained that area on the west side of the ditch since 1980 by mowing it three to eight times per year. This testimony was corroborated by witnesses who said they had seen Ladon and Kenneth mowing the area up to the ditch for many years. In 1980, Huey hired a man to level the property with a bulldozer. The leveling was done up to the ditch, according to Ladon and Allen Head, the man who performed the work. Thereafter, a mobile home sales business was established on the property from 1981 to 1988. According to Ladon, mobile homes occupied part of the disputed tract during this period. Kenneth Copelin testified that a mobile home mover was located on the disputed tract at various times during these years. The Copelins also operated a portable sign business on their land during the same 1981-88 period, and the signs were stored on the disputed tract.

Ladon further testified that, several times during 1981-85, his father allowed tent revivals to be held on the land, including on the disputed property. This was corroborated to some extent by witness Jake Hooper. Additionally, beginning in 1987, Huey permitted the Assembly of God church to place a sign on the property very close to where the billboardis now located. Although appellants testified that they protested the placement of the sign and agreed to allow it to remain only for one year, others testified that Huey Copelin claimed ownership of the tract and allowed the sign to stay there until 1991 or 1992.

In 1995, Ladon and his wife moved a mobile home onto the Copelin land, very close to the disputed tract. They lived there until 1998. During this time, they mowed the strip up to the ditch, ran a water line underneath the strip, and planted shrubbery and flowers on it. They testified that they had never seen appellants maintaining the west side of the ditch. Appellants assert that the Copelins' activities on the disputed strip cover three distinct time periods: 1) from 1979 or 1980 to 1988 when Huey Copelin operated several businesses on the land; 2) from 1988 to 1995 when the only activity was the intermittent mowing of the strip; and 3) from 1995 to 1998 when Ladon and his wife lived in the mobile home. Appellants assert that none of these periods, either standing alone or when tacked on to a contiguous period, amount to seven years of continuous possession. We disagree.

It is readily apparent that the first time period from 1979 to 1988 covers a span of more than seven years, during which the Copelins made significant use of the strip, if we accept the trial court's apparent determination that the Copelins' testimony was credible. Ladon and Kenneth began mowing the strip in 1979 or 1980; it was leveled by a bulldozer in 1980; mobile homes were placed on it at various times from 1981-88; portable signs and a mobile home mover were placed on it at various times from 1981-88; several tent revivals were held on it between 1981 and 1985; and a church sign was placed on it in 1987. Appellants contend, however, that all pre-1987 usage should be disregarded because in 1987,Huey and Ladon offered to purchase the disputed strip, thereby destroying the adverse character of their usage.

It is undisputed that on March 13, 1987, Huey and Ladon signed an offer to purchase "83.5 acres more or less" from the First United Methodist Church, prior to Mary Abels' purchase of the property. Generally, where a possessor recognizes superior title in another, he cannot support a claim for adverse possession. See 2 C.J.S. Adverse Possession § 78 (1972). Recognition of another's title may be shown by the possessor's offer to purchase the other's interest. Id. See also 3 Am. Jur. 2d Adverse Possession § 104 (2d ed. 2002). However, we do not conclude, under the circumstances of this case, that the Copelins' offer to purchase 83.5 acres amounted to a recognition of another's title to the disputed .1179 acres.

The Copelin offer was for 83.5 acres of land, and it described the land generally by quarters. The offer made no reference to the disputed tract at issue. This distinguishes the present case from Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937), and Vittitow v. Burnett, 112 Ark. 277, 165 S.W. 625 (1914), which are relied on by appellants. In Terral, the court held that the appellee was precluded from asserting adverse possession of a driveway partly because he had offered to purchase the particular, five-foot wide strip of land in dispute. Vittitow is less clear, but we understand it to involve a situation in which the appellant's offer to purchase eighty acres of land from the appellee precluded the appellant's adversely possessing that same acreage.

We view the Copelins' 1987 offer as nothing more than an attempt to buy a large, adjoining tract, without reference to any particular parcel. As such, it did not necessarilyamount to recognition by the Copelins of another's ownership of the disputed .1179 acres. We therefore have no difficulty in holding that the Copelins' activities on the disputed strip between 1979 and 1988 established seven continuous years of possession. In light of our holding, it is unnecessary to address appellants' arguments regarding the nature of the activities that took place after 1988.2

The final argument we address concerns appellants' claim that appellees did not prove an intent to hold the strip adversely. They cite Ladon's testimony that he "only wanted what was ours and had been all my life and that's up to the ditch line" and Kenneth's testimony that he and Ladon were not claiming any land other than what they thought their parents owned. Appellants contend that this testimony belies an intent to adversely possess the strip at issue.

For possession to be adverse, it must be hostile in the sense that it is under a claim of right, title, or ownership, as distinguished from possession in conformity with, recognition of, or subservience to the right of the owner. See Barclay v. Tussey, 259 Ark. 238, 532 S.W.2d 193 (1976). Whether possession is adverse to the true owner is a question of fact. White River Levee Dist. v. Reidhar, supra.

Testimony such as that given by Ladon and Kenneth has often been elicited on cross-examination for the purpose of destroying an adverse possession claim. However, the importof such testimony has been discounted by the courts. The supreme court recognized in Rye v. Baumann, 231 Ark. 278, 281, 329 S.W.2d 161, 164 (1959), that "an honest claimant upon being asked about his intent, unless previously warned, might not think to qualify his answer so as to claim what he considered his own, but would state that he claimed only his own, and on such a chance statement, his claim would disappear." See also Dickson v. Young, 79 Ark. App. 241, 85 S.W.3d 924 (2002), and Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990), where we recognized that if a claimant, acting on a mistake as to the true boundary, takes possession of the land of another believing it to be his own, the intent to retain possession under an honest belief of ownership is adverse possession. That is precisely the situation we have here. Therefore, Kenneth and Ladon's testimony did not destroy appellees' adverse possession claim.

Affirmed.

Baker and Roaf, JJ., agree.

1 Although the tort claims remain pending, the trial court executed a proper Rule 54(b) certificate to permit an immediate appeal.

2 This includes appellants' argument that Cleo Copelin's alleged mental incapacity rendered her incapable of authorizing her sons to adversely possess the strip on her behalf. The activities that took place on the strip between 1979 and 1988 were conducted by or at the express direction of Cleo's late husband Huey Copelin, whose competency is not questioned.