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