Jack Nelson Jones Professional Association

October 9-15, 2017

Smith v. Boatman, 2017 Ark. App. 488 (September 27, 2017)


This appeal comes from the Craighead County Circuit Court, Eastern District, honorable John N. Fogelman presiding. This case involves a claim for adverse possession.


Irving Smith and Malinda Smith, own property adjacent to property owned by Lonnie Boatman and Flora Boatman. When the Smiths purchased their property in 2011, there was an old wire fence traveling north to south, which encroached onto the Smiths’ land as surveyed. Mr. Smith made this discovery after surveying his recently purchased property, and in 2012 he tore down the wire fence and built a new fence near the location of the surveyed boundary. Shortly thereafter, the Boatmans filed a petition to quiet title against the Smiths, alleging that the old wire fence had served as the boundary line between the two properties for at least forty years. The Boatmans claimed ownership of the disputed strip of land by adverse possession and boundary by acquiescence. The Boatmans asked that the Smiths be ordered to remove the new fence and pay damages for removal of the Boatmans’ pecan tree that was located on the disputed strip.


At trial, Lonnie Boatman testified that he had lived on his property since 1967, when he was a child, and that the fence was built around 1970. Lonnie’s father sold him the property in 1988, and the Boatmans have lived there ever since. Mr. Boatman and the Boatmans’ neighbors, Terry Wycoff and Jim Taylor, testified that the Boatmans maintained the land up to the fence and grew a garden there every year. According to Mr. Boatman, no one other than him had ever maintained his side of the fence since he bought his property in 1988. The previous owner of the Smith property was Barton’s Lumber Company, and Lonnie stated that they never had any discussion about who owned the now-disputed strip of land. Flora testified, and added that the Boatmans’ pecan tree had been on the strip since 1981; and that they used the pecan tree to sell pecans in the fall and made about $100 per year.


Mr. Smith testified that he conducted his survey after he noticed a survey marker to the east of the old fence. He also stated that, while he was building the new fence, Mr. Boatman never tried to stop him. Mr. Smith further testified that Mr. Boatman told him he might as well take out the pecan tree too. He testified that although Mr. Boatman did tell him that his father had put up the old fence, Mr. Boatman never claimed to own the land up to the fence until filing the lawsuit. Mr. Boatman rebutted, however, that he never gave Mr. Smith permission to tear down his fence or his pecan tree. In fact, Mr. Boatman stated that he called the local police department when he saw the excavator tearing down the fence.


Ultimately, the trial court quieted title to the disputed land in the Boatmans, finding that the Boatmans acquired the disputed strip of land by adverse possession and boundary by acquiescence. The trial court ordered the Smiths to move the new fence to the location of the old one and to pay $400 in damages for the destruction of the Boatmans’ pecan tree. The Smiths appealed.


The Smiths first argued that the trial court erred by determining the Boatmans acquired the disputed land by adverse possession. The Court explained that, in order to prove ownership of land by adverse possession the party claiming possession must show continuous possession of the property for seven years. The claimant must also prove that possession was actual, open, continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner.


The Smiths specifically contended that the actions of the Boatmans’ predecessor in title failed to satisfy the requirements of being hostile and accompanied with an intent to hold against the true owner. They suggested that the actions of the Boatmans’ predecessor were best described as having constructed a fence that mistakenly strayed from the legal property line and enclosed a portion of the neighboring land. Characterizing this as an unintended mistake as to the location of the true boundary, the Smiths posited that it was insufficient to satisfy the hostility element or the intent to hold against the true owner as required of an adverse possessor.


The Court explained, however, that regardless of whether Mr. Boatman’s father’s placement of the fence was by mistake, if the intention was to hold property adversely, the statutory period for adverse possession runs regardless of any mistake as to boundary or title. When a landowner takes possession of land under the belief that he owns it, encloses it, and holds it continuously for the statutory period under claim of ownership, without recognition of the possible right of another on account of mistake, such possession is adverse and hostile to the true owner. In this case the Boatmans presented four witnesses who testified that the Boatmans had claimed the disputed strip of land inside their fence, maintained it, and exercised control over it for far longer than the required seven-year period. The Boatmans’ occupation of the property included bush hogging, harvesting pecans, and maintaining a garden up to the fence line. There was no evidence that the Smiths’ predecessors in title had ever claimed ownership or tried to exercise control of the disputed strip of land between the time the fence was constructed in 1970 and the time the Smiths bought the property in 2011. According to the Court, it is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Accordingly, the Court concluded that the Boatmans satisfied the hostility element and demonstrated an intent to hold against the true owner, and thus acquired the disputed land by adverse possession. Because the Court found the Boatmans acquired title to the land by adverse possession, it did not discuss the issue of boundary by acquiescence. Affirmed.