473 S.W.2d 858 | Ark. | 1971
Litman C. Vick, appellant herein, contends that he is the owner, by virtue of adverse possession, of certain lands in Ouachita County, Arkansas. Appellees, Henry M. Berg and wife, and Henry M. Berg as agent and attorney in fact for Gette Berg Jordan and Leah Berg Shyer, assert that they are the owners of the lands in question. On June 25, 1969, Vick filed a petition in the Ouachita Chancery Court alleging that he was the owner and in possession of the 58 acres of land,
As to the first point, we quickly find no merit. Apparently, though it is not entirely clear, counsel for appellees endeavored to establish the chain of title by simply making reference to the deed records. This, of course, was improper, but there was no objection from appellant nor any demand for the introduction of certified copies, or the instruments themselves. We have said that where there are no objections, the point is considered waived when the case reaches the Supreme Court. Allen v. Ozark Land Company, 55 Ark. 549, 18 S. W. 1042. Actually, it is likely that no objection was made because Vick really does not controvert the fact that appellees are the record owners of the lands. In addition, this suit was not instituted by appellees, but by appellant, and the burden is on him to establish his title, rather than rely on any weakness of the title of the Bergs. Rinke v. Shackleford, 248 Ark. 941, 455 S. W. 2d 83. Whether the decree properly quieted title in appellees as against the world is not a matter to concern Mr. Vick, since he is only interested in whether title was properly quieted as against him.
The property claimed by appellant was sometimes referred to in the trial of the case as three separate parcels, these parcels being identified with reference to three fences, and were termed the “outer tract”, the “inner tract”, and the “yard”. The “outer tract” was property inside the “outer fence” but outside the “inner fence”, and consisted of approximately 50.3 acres. The “inner tract” referred to land within the “inner fence” but outside the “yard fence” consisting of approximately 3.6 acres. The “yard” included the land inside the yard fence and the house occupied by appellant, and conn sisted of approximately M of an acre. The court ruled against Vick with respect to both the “outer” and “inner” tracts, but did quiet title to the “yard” in him, and this appeal relates only to the “outer” and “inner” tracts.
Vick stated that he moved to the property 33 years ago, built his house, and had lived there since that time. This was in conflict with a deposition earlier given when Vick said he lived away from the property for seven or eight years, but moved back about 1957; that he built the “yard fence” in 1953; according to the witness, a man named Daniels built the “inner fence” sometime after 1953.
In determining whether he has sufficiently supported his claim, we will briefly discuss these various facts. Let it be said at the outset that, though alleged, he had no color of title, and though having commenced living on the quarter acre some 33 years before the litigation, no claim to the land within the “outer” or “inner” fences was made prior to 1961.
Frank Landers, engaged in the timber business, testified that he bought timber from Berg in the spring of 1966, such timber being located within both the “inner” and “outer” fences, and started cutting it in the fall. He said that he discussed the matter with Vick on the morning he started in on the cutting. According to the witness, Vick asked if Landers were there to cut the timber and the latter replied that he had a deed and was going to cut it all, as well as some timber on other lands that he had bought from other parties. “He said, ‘I wish you wouldn’t cut this first.’ I said, ‘Why, this is the Berg’s timber,’ and he said ‘yes’.” The timber was cut, and Vick neither demanded nor received any money. Several witnesses who frequently had contact with Vick testified that he had never made any sort of claim to the land and Vick himself only mentioned one person that he said he had told of his claim.
Though Vick testified that he had built the “outer fence” in 1961, he did not appear to be at all positive about this fact. For instance, when asked about it during the taking of a deposition in January, 1970, he replied “Oh, it’s been several years ago that I put that fence up around it. * * * It’s been six or seven years ago.* * *” Subsequently, he reiterated a third time that the fence was put up “Six or seven years ago.” Of course, “six or seven years ago” would have only taken his claim back to 1963 or 1964, which would have been less than seven years before the commencement of the action. Other portions of his evidence are also rather in conflict with his claim of adverse possession. After he had taken the stand to testify in rebuttal, the record reveals the following on cross-examination:
“Q. Have you ever paid any taxes on this property?
A. No, I haven’t yet.
Q. Why haven’t you?
A. Well, it hadn’t belonged to me yet [Our emphasis].
Q. It doesn’t belong to you now, does it?
A. Well, I’m in care of it anyway [Our emphasis]. * * *
Q. How come you never did pay any taxes on this land?
A. Nobody never come down and I didn’t own it.
Q. And that’s why you didn’t pay taxes on it?
A. I didn’t own it at that time, no [Our emphasis].
Q. Do you own it now?
A. I figure I do.
Q. Have you paid any taxes on it?
A. No, but I am fixing to.”
In summary, while the record reflects that appellees had notice of Vick’s presence on the land, the record does not reflect that appellees had notice of his claim of ownership. In fact, it appears that Vick was under the impression that all he had to do was stay on the premises for more than seven years, and he would automatically come into ownership. This, of course, is not correct. To the contrary, he had to assert his claim of ownership against the world for more than seven years before that ownership would be established.
In Hill v. Surratt, 240 Ark. 122, 398 S. W. 2d 225, we pointed out that the quantum of proof necessary for a trespasser to establish title to a tract of land by adverse occupancy is greater where he has no color of title, and in such case he must show pedal or actual possession for the extent of the claimed boundaries for the required seven years, and in Lollar, et al v. Appleby, et al, 213 Ark. 424, 210 S. W. 2d 900, we likewise stated that where there is no color of title, the adverse possession is limited to the land actually occupied. It does appear that the quarter.of an acre-awarded Vick by the chancery court was actually occupied, but we agree with the chancellor that the proof relative to the rest of the land sought was entirely insufficient to establish the adverse claim.
Affirmed.
Actually, it appears that the amount of land involved is something over 54 acres.
Daniels, under a lease from Berg, constructed this fence for the purpose of holding cattle, and, according to the evidence, used it for approximately 10 years.
There is a dispute in the evidence relative to when the fences were built, two witnesses testifying that the “outer fence” was not completed until 1968.
From the record:
“Q. When did you decide you were going to claim ownership of the land?
A. Well, about the time I fenced it. I figured it wasn’t nobody coming, I was going to go ahead and fence it up. * * *
Q. * * * When did you first decide you were going to claim that you owned this land?
A. Well, 1 told you I put a fence on it when I figured it.
Q. At the time you built the fence?
A. Yes.”
The northern boundary of the property was on the Ouachita River.
Henry Simpson testified that he had a place about 2,000 feet up the river from Vick; that he knew Berg owned the property, and that he (Simpson) claimed no ownership interest, and that, as far as he knew the other fishing camps had the same status.
