352 S.W.2d 824 | Ark. | 1962
This is a boundary line dispute. A. B. Smith, Jr. became the owner of a certain forty acres in Saline County by conveyance from his father in March, 1927. A country road, at one time used by the community, was located between this property and that of Smith’s neighbor to the west. Smith built a fence eight or ten feet east of the road. In February, 1958, appellees, H. O. Underwood and wife, acquired title by purchase, of two acres of land lying immediately west of appellant’s land, and thereafter, this dispute arose as to the proper boundary line. Smith instituted suit against appellees, alleging his purchase in 1927, and asserting that he had maintained a fence around the lands purchased since that time; that his possession had been adverse to all persons, and that he claimed all lands which had been under fence. The complaint further alleged that this fence had been cut by appellees, and that the latter had constructed a fence of their own on appellant’s land. The Underwoods denied the allegations, and asserted that they were record owners of the property in dispute, and that Smith had agreed to the erection of the fence which they had placed on the property. On trial, Smith’s complaint was dismissed, and the court held that the east property line was the line as marked by the fence erected by appellees. From such decree, comes this appeal.
We think the evidence establishes Smith’s claim of adverse possession to that portion of the property east of the fence that he had constructed. According to the testimony, he had built a net wire fence with barbed wire on top, with much of it attached to trees. Smith testified that he kept cattle on his land; that his fence was sufficient to hold the cattle on his premises; that he maintained the fence as repairs were needed. Appellant, 60 years of age, stated that his entire forty acres was under fence; the land had been fenced as long as he could remember, and certainly since 1932. His wife testified that to her personal knowledge, the fence had been in its location for twenty years. Several relatives of appellant likewise verified the existence of the fence for far more than seven years, and two neighbors, Lexie Jenkins and Alma G-antz, stated that they were familiar with the location of the Smith fence for periods respectively of thirteen years and twenty-two years. Various photographs, introduced as exhibits, show portions of the fence in question. There is really no contention that the fence was not in existence, though R. G. Anderson, son-in-law of the Underwoods, testified that he would not term it a fence, “It was a bunch of wire wrapped around trees that cows would walk over.” Anderson had entered into a contract to purchase the Underwood property.
The witness had made a payment, but subsequently abandoned his right to purchase the lands.