Emerson v. Linkinogger
2011 Ark. App. 234
Ark. Ct. App.2011Background
- Appellants Melvin and Jeanette Emerson own land adjoining appellees Stephen and Toni Linkinogger and Harold and Luann Christian in Van Buren County, Arkansas.
- Deeds to Emersons were recorded in 2003; Linkinoggers acquired their property in 2008; Christians in 2004 and 2005.
- The boundary between parcels was marked by an old fence, historically recognized by neighbors since the 1930s.
- A March 18, 2008 survey set a boundary line crossing the pasture and toward the Emersons’ side, triggering a dispute when the neighbors sought to fence along the line.
- Appellees filed suit March 17, 2009 to quiet title and establish the boundary; Emersons counterclaimed for quiet title up to the fence based on over 75 years of use.
- The circuit court held that the boundary was the survey line and that Emersons failed to prove adverse (hostile) possession; decree entered May 12, 2010, with appeal filed May 18, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court correctly applied adverse-possession standards. | Emersons argue facts show actual use and hostility; law should apply to deem possession adverse. | Appellees contend no hostility or statutory requirements were proven; boundary should follow the survey. | Adverse-possession not proven; boundary affirmed by survey |
| Whether possession was sufficiently hostile under permissive use to constitute adverse possession. | Clear, continuous use and maintenance of the fence and land evidenced hostility. | Initial use may have been permissive; hostility not sufficiently proven given pre-existing permissive use. | Not clearly erroneous to find no adverse possession |
| Whether the circuit court properly weighed credibility and evidence regarding fence condition and notice. | Evidence showed long, visible acts of ownership consistent with adverse possession. | Fence was deteriorated and not plainly visible; notice was not brought home to owners. | Court’s credibility determinations upheld |
| Whether the court erred in quieting title in favor of appellees based on the survey boundary. | Survey line should be subject to adverse-possession evidence; fence use supports ownership. | Survey boundary should control absent proven adverse possession. | Survey boundary affirmed; no reversal on this issue |
Key Cases Cited
- Rio Vista, Inc. v. Miles, 374 S.W.3d 698 (Ark. App. 2010) (de novo review for quiet-title actions; factual findings reviewed for clear error)
- Moore v. Dunsworth, 2010 Ark. App. 446 (Ark. App. 2010) (adverse-possession standard where facts are undisputed or controlled by statute)
- Cleary v. Sledge Props., Inc., 379 S.W.3d 680 (Ark. App. 2010) (color of title and payment of taxes as statutory elements)
- Tolson v. Dunn, 893 S.W.2d 354 (Ark. App. 1995) (permissive use may become hostile over time; notice required for hostility)
- Hicks v. Flanagan, 782 S.W.2d 587 (Ark. App. 1990) (presumption of permissive occupancy erodes with time when possession unexplained)
- Potlatch Corp. v. Hannegan, 586 S.W.2d 256 (Ark. 1979) (hostility and notice in adverse possession analysis)
- Boyd v. Roberts, 255 S.W.3d 895 (Ark. App. 2007) (fence as notice device; admissibility of evidence of possession and boundary)
- Ford v. Howard, 300 S.W.3d 505 (Ark. App. 2009) (hostility notice in adverse-possession framework)
- Sterne, Agee & Leach, Inc. v. Way, 270 S.W.3d 369 (Ark. App. 2007) (standard for reviewing undisputed facts in trial court)