Fenton v. Collum

Kirby, J., (after stating the facts). Under section 5057, of Kirby’s Digest, a person having color of title who has paid the taxes for seven years in succession upon unimproved and uninclosed lands, where at least three of the payments have been made since the passage of the law, acquires the title thereto by limitation. Towson v. Denson, 74 Ark. 305; Updegraff v. Marked Tree Lamber Co., 83 Ark. 154; Rachels v. Stecher Cooperage Works, 95 Ark. 7; Paragould Abstract & R. E. Co. v. Coffman, 100 Ark. 582. It is not disputed that appellee’s deed from the Blassingames did not operate to convey title, nor that it was color of title to the lands in controversy, and that appellee paid the taxes thereon for seven years in succession under same, but only that the lands were not unimproved and uninclosed, within the meaning of the act. The land, or a considerable part of it, was cleared and fenced and had been in cultivation for some time, and was cultivated by appellee’s grantors and their tenants for two years, the last crop being produced in the year 1900. The fence was old and out of repair, and it was that year broken,’ and the land could not be said to have been inclosed thereafter, although the fence was not entirely destroyed, and there are some rails around it at different places yet. This court has used the word “wild” interchangeably with the words “unimproved and uninclosed,” relative to lands claimed under said statute, and held that a finding that lands were wild was sufficient to show that they were “uninclosed and unimproved.” Towson v. Denson, supra; Rachels v. Stecher Cooperage Co., supra. It was obviously the intention of the Legislature that the statute should relate only to lands in a state of nature — wild that had not been cleared, improved, or enclosed, and it was not intended that the title to lands cleared, fenced or in cultivation could be acquired by limitation by the payment of taxes, as specified in said act, such lands not being unimproved and uninclos’ed, within the meaning of it. It may be that when fields, once cleared and cultivated, have been abandoned and permitted to go to waste and grow up in briars and brush and the fences become dilapidated and destroyed, the lands will be regarded as unimproved and uninclosed, as though they had never been, but we think this condition must be shown before the title to lands, once improved and inclosed, can be acquired by the payment of taxes in accordance with said law. In other words, if the lands are shown to have been improved or inclosed during any of the seven years, the successive payment of taxes for which would have conferred title upon the person paying the taxes if they had been unimproved and uninclosed, it would defeat claimant’s title thereto. The undisputed testimony shows that the lands were not unimproved and uninclosed within the meaning of the law, and appellee acquired no title thereto by paying the taxes thereon for seven successive years under color or title. King v. Campbell, 89 Ark. 450; Wheeler v. Foote, 80 Ark. 435. It follows the chancellor erred in holding otherwise, and the decree is reversed and the case is remanded, with directions to dismiss the complaint for want of equity.