Langhorst v. Rogers

Wood, J. This is a suit to quiet title to a fractional quarter section of land in Logan County, Arkansas. The land is described in the complaint as the west half of lot two, north-east quarter and the south half of north-east quarter of section six, township eight north, range twenty-three west. The appellee claimed title to the south half by virtue of a .a deed from the Commissioner of State Lands executed April 19, 1888, and possession thereunder for more than seven years, and he claims title to the south half by virtue of the seven years statute of limitations. Thé south half contained eighty acres, and the west half of lot two north-east quarter contained 54.88 acres. To the latter tract appellee set up title only by virtue of the seven years statute of limitations, but he did not claim to hold the west half under any color of title. The appellant answered, denying appellee’s claim of title to the lands in controversy by the statute of limitations, and setting up title in himself by virtue of a deed from the Little Rock & Ft. Smith Railway Company, of date July 7, 1882. It was not ■disputed that the title to the lands in controversy was in the Little Rock & Ft. Smith Railway Company prior to their forfeiture and sale for taxes. And appellee does not contend that the tax sale was valid. His only contention in the court below and here is that the commissioner’s deed gave him color of title to the lands •described therein, and that he took possession of the south half •of the north-east quarter under said deed, and has held them openly and adversely for a period of more than seven years. As to this tract appellant concedes here that the decree of the chancellor was correct, and should be affirmed, and it is so affirmed. So the only controversy here is as to the west half lot two of north-east quarter. Appellant concedes that appellee had ^‘possession of a residence thereon and one or two acres around •same, but contends that the possession was obtained through its tenant, and that such possession was not adverse to appellant. Appellant also contends that, even if appellee had adverse possession of the residence and the few acres surrounding it, such possession could only give him title to that which he actually occupied, and not to the whole tract. There is evidence to warrant the finding of the chancellor that the possession of the house and the few acres around it on the west half which appellee held through his tenants was adverse. The evidence shows that he took possession of this, regardless of any claims of appellant, and held it openly, adversely and continuously for more than the statutory period. But the proof shows that only the house and three or four acres around it was in the pedal possession of appellee. The evidence does not show that he had adverse possession to the residue of this tract. True, the evidence shows that the tenant of appellee cut rail, post, building and board timber, and got their fire wood from both the tracts. But this alone was not sufficient to constitute title by adverse possession. Chatfield v. Earle Improvement Co., 81 Ark. 296; Dickinson v. Connerly, 81 Ark. 258. One witness testified that he fenced about twenty acres of the woodland “on these lands” the year he cultivated them, but he does not show that any of the fencing was on the west half, or if so how much was inclosed and where. There is no evidence in the record, except what we have mentioned, tending to show that appellee held pedal possession of any of the west half of lot two, except the house and about four acres around it. The land was inclosed under a district fence in 1899, but this suit was begun.in November, 1905. So appellee did not hold the lands under this enclosure for a sufficient time to give him title under the seven years statute of limitations. The appellee, having no color of title to this tract, could only acquire title by adverse possession to such of it as he actually held possessions pedis. Dickinson v. Connerly, supra. The evidence is not sufficient to show title by adverse possession to any of the west half of lot two north-east quarter, except about four acres on which the houses were situated, and appellee does not designate the portion of the tract where this four acres is situated. As the court decreed appellee title to the whole tract, he was not called upon, under the decree, to demand any lesser portion. But, as the court erred in decreeing ■title to the whole of the west half in appellee, he may, when the cause is remanded, if he so elects, define the three or four acres upon which the houses are situated, and which he occupied for the statutory period, and have a decree accordingly. As to this, the cause has not been fully developed. Long v. Charles T. Abeles & Co., 77 Ark. 156. Opinion delivered December 21, 1908. Appellee is also entitled to have the taxes prorated on the west half of lot two north-east quarter, and to have a decree for taxes he paid on the portion of the tract to which he has no title. For the error indicated, the judgment is reversed and cause remanded for further proceedings, not inconsistent with this opinion.