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Morrison v. Carruth

Court of Appeals of Arkansas, Division II

April 8, 2015



Walters, Gaston, Allison & Parker, Attorneys at Law, by: Michael N. Harry, for appellant.

Milligan Law Offices, by: Phillip J. Milligan, for appellee.



Page 318


Appellant Linda Morrison owns a parcel of land that abuts another parcel owned by appellee Donavea Carruth. A nine-and-a-half-foot-wide strip runs along the parties' common boundary line. Morrison filed a petition for declaratory judgment and to quiet title, alleging two separate theories: 1) that the strip was encompassed by her property description; or 2) alternatively, that she had adversely possessed the land by maintaining, using, and improving the property. The Sebastian County Circuit Court determined that Morrison failed to meet her

Page 319

burden of proof on either theory. On appeal, Morrison argues that the circuit court erred in finding that she failed to meet her burden of proving the common-law elements of adverse possession. We find no error and affirm.

This court reviews adverse-possession and quiet-title actions de novo on the record and will not reverse a finding of fact by the trial court unless it is clearly erroneous. Parkerson v. Brown, 2013 Ark.App. 718, 430 S.W.3d 864. In reviewing a trial court's findings of fact, this court gives due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Strother v. Mitchell, 2011 Ark.App. 224, 382 S.W.3d 741.

Morrison moved onto her property in 1980 and purchased it in January 1982. At the time she bought the land, a storage building that had been on the property for twenty years and a dog pen encroached onto the disputed nine-and-a-half-foot-wide strip. The exact distance of these encroachments was not specified but was estimated as being anywhere from inches to maybe a foot or so. It was undisputed that a ditch was contained within the nine-and-a-half-foot-wide strip and that Morrison's water meter was located about a foot beyond Carruth's side of the ditch. It was also undisputed that the water meter had been in that location at the time Morrison purchased the property. Morrison planted pine trees along her side of the ditch in 1981, and she subsequently planted some crape myrtles next to the pine trees. At some point, Morrison had a compost area within the disputed strip, but that compost area had been removed by the time of trial. Morrison offered no survey of the boundary lines and conceded that she did not have any idea, based on the land description contained in the deed, where her boundary lines actually were. Morrison never erected a fence on the property, but she did put up a dog pen in April 2013. This was the first structure that she had built on the disputed strip of land.

Carruth moved onto her property in 1985, with the understanding that the strip running along the boundary was within her land description. She supported this understanding with the sworn testimony of Christine Woods, who owned the property directly behind Morrison's property and who had initially sold the property to Morrison, that the ditch was entirely within Carruth's property boundary. Carruth acknowledged that the storage shed and original dog pen encroached onto the disputed strip, but only by a minimal amount. The dog pen that Morrison built in 2013 was the first time that any structure had been erected that directly encroached on Carruth's property. Both Morrison and Carruth claimed to have been responsible for mowing and maintaining the disputed tract.

Based upon this evidence, the circuit court entered an order denying Morrison's petition for declaratory judgment and quiet title. The court first rejected Morrison's claim that she was the record owner of the property, noting that she never introduced a survey or other competent evidence to support her claim that the property at issue lay within the legal description set forth in her deed.

Second, the court rejected Morrison's adverse-possession claim for failure of proof. The court found that the pine trees were planted before Carruth became Morrison's neighbor; therefore, they were not evidence of adverse possession against Carruth because she could not have been aware that they were planted in derogation of any property rights she ...

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