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Collier v. Gilmore

Court of Appeals of Arkansas, Division IV

November 14, 2018

SEAN COLLIER AND KIM COLLIER APPELLANTS
v.
GARLAND GILMORE AND LESHA PRATER APPELLEES

          APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT [NO. 38CV-13-65] HONORABLE PHILIP SMITH, JUDGE

          Ford & Cook, PLC, by: Bryce D. Cook, for appellants.

          Murphy, Thompson, Arnold, Skinner & Castleberry, by: Kenneth P. "Casey" Castleberry; and Grider Law Firm, PLC, by: M. Joseph Grider, for appellees.

          BRANDON J. HARRISON, JUDGE.

         Hostility. It's a term of art under Arkansas's adverse-possession law and is front and center in this appeal, which primarily asks: Can Garland Gilmore and Lesha Prater prevail on their adverse-possession claim against Sean and Kim Collier if Garland Gilmore believed he owned the disputed tract of land for some forty years, has possessed and farmed the disputed area for the same length of time, but was initially mistaken on where the relevant deed placed the true boundary line? This mistaken-boundary-line case "brings us to 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 hostility." William B. Stoebuck & Dale A. Whitman, The Law of Property § 11.7, at 857 (3d ed. 2000).

         I.

         In addition to the common-law element of hostility, the testimony elicited from Garland Gilmore during the bench trial on his adverse-possession claim-and the Colliers' 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-decide this case. The Holder/Gilmore boundary matters to the Colliers because they are the Holders' successors to that boundary line and can take no greater title than the Holders held.[1]

         No one disputes that the parties in this case acquired title to their respective properties from the Holders. It is also agreed that, since 1972, Garland Gilmore has farmed either soybeans or rice on the disputed strip of land although the deed Gilmore received from the Holders did not include the disputed land. The disputed area that Gilmore claimed through adverse possession is 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 that the 1972 purchase included all the land up to a then-existing fence that once enclosed the property where Mr. Holder lived. The Colliers seek to defeat Gilmore's adverse-possession claim and use the disputed area as a goat pasture.

         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 has remained significantly lower in elevation than the land inside the prior enclosed area. The prior fence-line/rice-levee intersection is the boundary line that Gilmore claimed in this case. The Colliers maintain that the description in their deed controls and that the boundary line should conform to the deeds, not to the prior neighbors' (Holder and Gilmore) understanding of where the boundary line is.

         Here is the most important colloquy from Gilmore's testimony during the bench trial:

Defense counsel: . . . And you said that at that time there was a fence line [around the two acres] that the Holders put up and-or there was a fence there, is that correct?
Gilmore: Yes.
Defense counsel: And you had a conversation with Mr. Holder about that: is that right?
Gilmore: When I bought the place, Mr. Holder, he said that now "Gilmore," he said, "what you are buying, this right here that's under fence don't go with what you are buying," He said, "That goes with the house and the yard." And I said: "Mr. Holder, just farm up to where y'all have always farmed?" And he said, "That's correct." . . . So that's what I did.
Defense counsel: So is it fair to say that regardless of where the survey lines were, you had permission from ...

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