Jack Nelson Jones Professional Association
November 26 - December 2, 2018
Collier v. Gilmore, 218 Ark. App. 549, 11-14-2018
This case arose on an appeal from Lawrence County Circuit Court, Honorable Philip Smith, presiding, who found that Garland Gilmore and Lesha Prater (“Gilmore”) prevailed on their adverse-possession claim against Sean and Kim Collier (the “Colliers”).
As the Court of Appeals noted, this mistaken-boundary-line case raised the” most difficult, thoroughly maddening, question in all adverse possession,” whether an adverse possessor’s subjective state of mind, imprecisely often called ‘intent,’ can destroy the hostility needed for possession to be adverse.
No one disputed that the parties in this case all acquired title to their respective properties from the Holders. It is also agreed that, since 1972, Garland Gilmore had farmed either soybeans or rice on the disputed strip of land even though the deed Gilmore received from the Holders did not include it in its description. The Colliers received their homestead in 2012, when heirs or assigns of Lyn and Myrtle Holder conveyed approximately two acres containing the original homeplace to the Colliers as husband and wife.
The disputed area that Gilmore claimed through adverse possession was an irregularly shaped strip to the east of the Collier homestead and a thin strip to the south of the Collier homestead. According to Gilmore’s testimony during the bench trial, Mr. Holder told him at the time that the 1972 purchase included all the land up to a then-existing fence that once enclosed the property where Mr. Holder lived. There was a joint stipulation that an additional five witnesses would have agreed with Garland’s testimony regarding where the Lyn and Myrtle Holder/Gilmore boundary line was located. The Colliers sought to defeat Gilmore’s adverse-possession claim and use the disputed area as a goat pasture. The Holder/Gilmore boundary matters to the Colliers because they were the Holders’ successors to that boundary line and could take no greater title than the Holders held.
Gilmore said at trial that, in 1980, he had leveled the field up to the fence line to facilitate rice farming. The fence was eventually removed; but, according to Gilmore, since 1980, the land he had leveled that abutted the fence remained significantly lower in elevation than the land inside the prior enclosed area. The prior fence-line/rice-levee intersection was the boundary line that Gilmore claimed in this case. The Colliers maintained that the description in their deed controlled and that the boundary line should conform to the deeds, not to the prior neighbors’ (Holder and Gilmore) understanding of where the boundary line was.
During cross examination of Gilmore, the defense elicited that at the time he bought the property, there was a fence line [around the two acres] that the Holders put up, and Mr. Holder explained to Gilmore that the property surrounded by the fence went with the house and the yard and was not part of the property Gilmore was buying. Gilmore testified he asked if that meant he should “just farm up to where y’all have always farmed, and Holder said that was correct. So that is what I did.” Gilmore further acknowledged that regardless of where the survey lines were, he had permission from Mr. Holder to farm the land, but he always believed that he owned the property he was farming, and that he never had any intent to take property that belonged to somebody else, or to have a hostile claim to property that was his.
There was no objection to Gilmore’s reciting what Holder had said. Again, the Court noted that the trial court accepted as fact the stipulated testimony of five witnesses who would have agreed with the essentials of Gilmore’s testimony.
The Colliers called no witnesses during their case-in-chief, so the case was submitted to the court for decision after Gilmore had presented his side. The circuit court took the case under advisement and, in due course, entered an order giving title to the disputed property to Gilmore and his sister, Lesha Prater, finding:
Both parties acquired their respective titles from Holder. At the time of Gilmore’s purchase, Holder reserved ownership of the property inside a then-existing fence. This finding was supported not only by Gilmore’s testimony of statements made at the time of the transaction, but also by the subsequent acts of Gilmore, Holder, and Holder’s successors in interest for a period of 40 years. During that time, Gilmore actively farmed the disputed ground each year with all the associated activities of planting, cultivating, and harvesting of crops and general maintenance of the land. Additionally, he levelled the land up to the fence line, creating visible evidence of the fence’s location that survived the later removal of the old fence. This left a clear boundary of Gilmore’s claimed property.
The Colliers made a timely appeal. Although other points were raised, the adverse-possession claim was the one considered and affirmed by the Court. It noted that Arkansas common law and statutes governed this claim. Under common law, one must show continuous possession of the disputed property for seven years, in an actual, open, notorious, hostile, and exclusive manner, and with an intent to hold against the true owner. The Court noted that while there was older caselaw that a possessor’s subjective state of mind mattered in establishing whether a possession was hostile, the rule now was that the actual conduct of the possessor controlled. This allowed the “hostility” element to be determined by behaviors and not by drilling for a subjective intent.
Colliers contended that sufficient evidence did not support an adverse possession, arguing that Gilmore’s more than forty-year farming of the property was not a hostile use but a permissive one. The Court found that the modern position of American courts is that, as here, the mistaken belief of legal ownership by the possessor and the grantor usually satisfies the hostility requirements. The Court held that its de novo review of the record below did not convince it that the lower court clearly erred by rejecting a “permissive use” theory of the case and concluding that Gilmore sufficiently established his adverse-possession claim. The circuit court could have heard the cross-examination testimony as being, essentially, a recollection of two landowners (Holder and Gilmore) orally confirming, decades ago, what they believed the deed conveyed. Though Holder and Gilmore went out of step with the deed’s land description, they did so under a mutual mistake. Gilmore’s adverse possession legally altered the boundary line between the Colliers’ property and Gilmore’s. Because the circuit court decided the case in accord with the evidence and the law of adverse possession, the Court affirmed its decision that Gilmore proved his claim.