The opinion of the court was delivered by: John E. Miller, District Judge.
Plaintiff has moved for summary judgment in this case on the
ground that there is no genuine issue as to any material fact and
that it is entitled to a judgment as a matter of law. Rule 56,
Federal Rules of Civil Procedure, 28 U.S.C.A. To determine this
question the Court must consider the entire record and ascertain
whether there is a genuine issue of fact remaining.
In its complaint the United States alleged that on July 26,
1945, by warranty deed it purchased from the Waldron Hardware &
Mercantile Company certain lands for national forest purposes,
including all of Fractional Section 1, Township 1 North, Range 33
West, in Scott County, Arkansas, containing 181.28 acres, more or
less. The United States sets out the history of the title of
Section 1, tracing it from the original patent issued to Bud M.
Janaway on April 28, 1927, to the Waldron Hardware & Mercantile
Company. The United States further alleged that all taxes levied
against the property up to the date of the purchase by it have
It is then alleged that in 1955 and the early part of 1956 the
defendant entered upon the Fractional Section 1, above mentioned,
and without the knowledge or consent of the United States removed
therefrom timber of a value of $244.60.
The United States prays for a judgment in the amount of
$244.60; that title to the Fractional Section 1 be quieted in it;
and that the defendant be enjoined from further trespass on said
In due time the defendant filed his answer alleging that he is
the sole and exclusive owner of said land, and that he was merely
removing his own timber.
In answer to certain interrogatories propounded by the United
States to the defendant, the defendant stated that his title to
the section in question was based upon a Clerk's tax deed and a
decree of the Chancery Court of Scott County, Arkansas,
confirming the sale for taxes and vesting title in him; and that
he had been in adverse possession of the said section since
November 10, 1947. He further stated that he has paid the taxes
for the years 1946 to date.
Subsequently the United States filed a request for admission of
facts, requesting defendant to admit the chain of plaintiff's
title and to admit that all taxes had been paid on said Section
1 for the years 1931 through 1941 and 1942 through 1945. The
defendant, apparently because he admitted the correctness of the
request, filed no response to the request for admissions, and
they stand admitted as a matter of law. Handley v. City of Hope,
D.C.W.D.Ark., 137 F. Supp. 442; Rule 56, Federal Rules of Civil
Procedure. Ultimately the United States filed a motion for
summary judgment, and that motion is now before the Court for
determination on the basis of the record and of the briefs of the
parties in support of and in opposition to the motion.
It is established without question that title to Fractional
Section 1 involved in this action was in the United States on
July 26, 1945, when it purchased said section from the Waldron
Hardware & Mercantile Company. The only question is whether the
defendant has since acquired title to the section, either (1) by
adverse possession, or (2) by his purported tax title.
The defendant asserts that his adverse possession began on
November 10, 1947, which was more than two years after the United
States had acquired title to the land. Though the rule may
sometimes seem harsh, it nevertheless is firmly established that
adverse possession does not run against the United States. United
States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91
L.Ed. 1889; Simmons v. Ogle, 105 U.S. 271, 26 L.Ed. 1087; Stull
v. United States, 8 Cir., 61 F.2d 826; Nichols v. Council,
51 Ark. 26, 9 S.W. 305; Annotation, 55 A.L.R.2d 554, 563 et seq.,
and many cases therein cited. The only case cited by defendant in
opposition to this rule is the case of Pepper v. Dunlap, 9 Rob.,
La., 283. This Court does not have access to the court's opinion
in the Pepper case, but it has been cited many times as authority
for the rule that adverse possession does not run against the
United States. One example of this may be seen at page 565 of 55
A.L.R.2d, where it is said:
"No possession, however protracted, will confer
title to the occupant, as against the government of
the United States, to any part of the public domain.
Pepper v. Dunlap, 1844, 9 Rob., La., 283, error
dismissed 5 How. 51, 12 L.Ed. 46."
And again, in Pavell v. Berwick, D.C. La., 48 F. Supp. 246, 248,
the court said:
"One cannot acquire land in Louisiana by the
prescription of thirty years as against the United
States. Pepper v. Dunlap, 9 Rob., La., 283."
See, also, Annotation, 76 American State Reports, 479.
No doubt defendant's contention is taken from the italized
portion of the following statement in 2 C.J.S. Adverse ...