354 S.W.2d 19 | Ark. | 1962
This suit was instituted by appellee as an action in ejectment, and involves the ownership of a strip of land, slightly more than fourteen feet in width, lying between the homes of appellee and appellant, i. e., the issue is the determination of the location of the line between the two properties. The case was tried before the Court, sitting as a jury, and at the conclusion of the evidence, the Court held appellee had acquired title to the tract in question by “open, continuous, and adverse possession for more than the past seven years.” This finding had the effect of placing appellee’s property line to within eighteen inches of appellant’s house. From the judgment so entered, appellant brings this appeal. For reversal, two points are relied upon, as follows:
“L
The Court erred in admitting into evidence Exhibits 1, 2, and 3 to the direct examination of Mrs. Morel, which are photographs purporting to show portions of the premises in dispute, as a proper foundation for their admission was not laid.
II.
The Appellee has not been in such possession of the disputed lands as to ripen into title by adverse possession as contemplated by Arkansas Statutes, Section 37-101.”
III.
The photographs, 3 1/4" by 3 1/4", purport to show appellee’s rose garden, though no flowers are discernible ; in fact, the only plant life that appears is a catalpa tree (which, according to Mrs. Morel, “come up volunteer”, though she had since tended it), and some hedge;
‘ ‘ Counsel for appellee:
Q. Do you know what this is (indicating on picture) ?
A. That is a catalpa tree.
The Court: What property is that catalpa tree on!
Witness: On my property.”
II.
Since the judgment is being reversed, we do not discuss, nor pass upon, the question of whether the Court’s finding that appellee had acquired title by adverse possession, is supported by substantial evidence.
In accordance with our discussion under point one, the judgment is reversed, and the cause remanded. On re-trial, all parties shall be permitted to produce any further proof desired relating to the issue of ownership.
One cannot tell definitely, from these photographs whether the hedge runs continuously for a distance, or is only a “clump” serving as a “screen” in front of a window of the Mason house.