O'Neal v. Ross

Hart, J., (after stating the facts). In the case of Goodwin v. Garibaldi, 83 Ark. 74, the court, speaking through Mr. Justice Riddick, said: “When a land owner, through mistake as to his boundary line, takes possession of land of an adjacent owner, intending to claim only to the true boundary, such possession is not adverse, and, though continued for the statutory period, does not divest title; but when he takes possession of the land under the belief that he owns it, incloses it and holds it continuously for the statutory period under claim of ownership without any recognition of the possible right of another thereto on account of mistake in the boundary line, such possession and holding is adverse, and, when continued for the statutory period, will divest the title of the former owner, who has been thus excluded from possession. Shirey v. Whitlow, 80 Ark. 444; Wilson v. Hunter, 59 Ark. 626; 1 Cyc. 1038 and cases cited; St. Louis S. W. Ry. Co. v. Mulkey, ante p. 71. In cases where a fence is believed to be on the true line, and the claim of the purchaser is to the fence, even though the established division is erroneous, there is a clear intention to claim to the fence as the true line, and the possession does not originate in an admitted possibility of a mistake. In the case before us, the testimony of the defendant shows that, prior to his purchase of the land in September, 1901, the fence had been built upon the line established between lots 6 and 8, and lot 12 and the east half of lot 13 by a survey made by one Brandt. When lots 6 and 8 were purchased by the defendant, they were enclosed, and he claimed to the fence between the property he purchased and that now owned by the plaintiff. He claimed to a line visible and known, and his actual possession was coextensive with that boundary. The testimony on the part of the defendant shows that he took possession of the land under the claim and belief that it was his own, and has held it by adverse possession for the statutory period of seven years. The court found that there was no equity in plaintiff’s complaint, and dismissed it. This amounted to a general finding of the facts in favor of the defendant, and, according to the settled law of this State, the finding of fact made by a chancellor will not be disturbed on appeal, unless it is against the weight of the evidence. We have carefully considered the testimony as shown by the record, and are of the opinion that the finding of the chancellor is not against the preponderance of the evidence. The decree will therefore be affirmed.