Harrison v. Collins

Frank Holt, Justice. This is a title dispute to twenty acres of an “oversized forty”:acre tract of land. Appellant claims title by a tax deed-.and payment of taxes thereon. Appellee Collins asserts title through a warranty deed and adverse possession. Appellee National Old Line Insurance Company is Collins’ mortgagee. The chancellor refused to quiet and confirm title in either the appellant or appellee Collins. For reversal both appellant and cross-appellant Collins contend that the chancellor erred in denying their respective claims of title to the land. We agree with the cross-appellant that the title should be vested in him. Appellant claims ownership of the land based upon the assertion that the land is unimproved and unenclosed and that he and Ms predecessor in title have paid taxes thereon for more than seven years under the color of title of a tax deed pursuant to Ark. Stat. Ann. § ST-102 (Repl. 1962). The bases of his claim appear undisputed other than the lands being unenclosed. There is no attack upon the validity of the tax deed. On the other hand, the appellee and cross-appellant, Collins, claims ownership as the successor in title to a 1944 warranty deed and by adverse possession. Appellant argues that the warranty deed upon which Collins relies is defective and that any tax payments made upon the property are based upon an invalid description of the property on the tax books. Even though we should agree with appellant, we think that Collins has acquired title to the property by adverse possession for more than the seven years as is required by § 37-101. A claim of title to property based upon a deed and payment of taxes is subservient to the claim of one who holds possession adversely for the statutory period. Hargis v. Lawrence, 135 Ark. 321, 204 S. W. 755 (1918). There was evidence by Collins and other witnesses that since 1944, the date of the warranty deed conveying this property to appellee’s father who is his predecessor in title, both father and son have continuously exercised adverse acts of ownership to this property. The property was mortgaged several times. For more than twenty years an “island,” including the land in question, was known and considered by the residents of that vicinity as a part of the Collins farm. Collins owns the adjacent lands on the north, south and west of the land in question. On the east side, of the “island,” it appears undisputed that during this time the Collinses and an adjoining landowner maintained a joint fence for their common benefit. This fence was on the property of the adjacent landowner and separated his property from the twenty acres in question. The disputed land lies east of a horseshoe bend or “island” caused by the Little Red River. According to appellee’s evidence the disputed property was surrounded by the joint fence on the east and by appellee’s other property on the south, west and north. 'The “island” property, including the twenty acres in dispute, has been used by appellee and his father for pasturing cattle each year since the property was acquired in 1944. Whenever high water damaged or destroyed the fence, it was rebuilt by appellee and his adjoining landowner to contain their cattle. Appellee Collins conveyed timber cutting rights' which precipitated this action. When possession of property is so conspicuous that it is generally known and talked of by the public or people in the neighborhood, such possession is said to be notorious. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 (1937). In Berry v. Cato, 220 Ark. 36, 245 S. W. 2d 824 (1952), we said: “* * # mllst be guch. as would give notice to the general public of the claimant’s intention to hold adversely. These elements indicating possession must clearly appear where, as here, the land is not inclosed and tax payments are not shown.” Adverse possession ripens into ownership when there are seven years of open, actual, notorious, continuous and hostile possession with the intent to hold adversely and in derogation of another. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 (1952); Dierks Lbr. & Coal Co. v. M. H. Vaughn & J. A. Barnett, 131 F. Supp. 219 (Ark. 1954). In our view, in the case at bar, there was sufficient actual, open and notorious possession of the land in question to vest title in Collins. In Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528 (1963), we said: “Notice of adverse possession may be actual or it may be inferred from facts and circumstances, such as grazing cattle, erection of a fence or improving the land.” We hold that a preponderance of the evidence in the case at bar, upon a trial de novo, establishes title to the property in Collins by his meeting the requirements of adverse possession for more than the statutory seven years. Affirmed on direct appeal; reversed on cross-appeal. Fogleman and Brown, JJ., dissent.