Deidrech v. Simmons

• Decision Date: 13 May 1905
• Citation: Deidrech v. Simmons, 75 Ark. 400, 87 S.W. 649 (Ark. 1905)
• Parties: DEIDRECH v. SIMMONS
• Court: Arkansas Supreme Court

87 S.W. 649

75 Ark. 400

DEIDRECH v. SIMMONS

Supreme Court of Arkansas

May 13, 1905

Appeal from Jefferson Chancery Court, JOHN M. ELLIOTT, Chancellor.

Reversed.

STATEMENT BY THE COURT.

Appellants and appellee are the respective owners of two coterminus lots in the city of Pine Bluff, appellants of lots number one, and appellee of lot number four, of block number seventy-four of Tannehill & Owen's Addition to said city. Lot number one lies immediately north of lot four, and a strip eighty-seven feet wide on the border line claimed by both parties to be within their respective boundaries is the subject of this controversy. They claim title from a common source, Jas. M Hudson, who owned the whole of block seventy-four, and on March 7, 1888, conveyed lot four to Malinda E. Kilpatrick through whom appellee claims title, and on November 14, 1888 conveyed lot one to Silas C. Reynolds, through whom appellants claim title. It is shown that, about the time of the platting of the Tannehill & Owen's Addition, two maps of the city of Pine Bluff, including that addition, were published by surveyors and abstractors of recognized competency, and these maps were generally recognized as correct, and were used as guides in the conveyance of property in the city. According to these maps, lot number 4 of block 74 was 154 feet deep from north to south. One of these maps (White's) shows an alley 12 feet wide running through block 74 between lots 1 and 4; but the other map (Wilson's) does not show any alley, and according to this map the line of lot 1 comes down to lot four, and includes the 12-foot strip shown as an alley on the White map. The official plat on file in the recorder's office does not show any alley. The deed from Hudson to Mrs. Kilpatrick described the property conveyed by lot and block numbers as "being 120 x 154 feet." Mrs. Kilpatrick took possession under her purchase from Hudson, and fenced the lot according to the dimensions named, 120 x 154 feet, and remained in possession until she conveyed to D. Westal July 24, 1894. D. Westal conveyed to W. D. Westal on January 22 1895, who in turn conveyed to appellee, J. B. Simmons October 12, 1897. Neither of the Westals nor Mrs. Kilpatrick ever claimed any land except that which had been inclosed by Mrs. Kilpatrick, and at all times recognized and treated the fence as the true dividing line.

Silas C. Reynolds under his purchase of lot one from Hudson took possession, claiming to be the owner down to the division line established by Mrs. Kilpatrick, and inclosed the same with a fence, using the fence built by Mrs. Kilpatrick on the north line of her lot as the dividing line between the two properties. He erected a substantial dwelling house, outhouses and other necessary buildings, on the strip of land in controversy, believing it to be a part of lot one, and occupied the same as his homestead until he conveyed the property to Manetta Reynolds on August 2, 1894, who, a short time afterwards, conveyed the same to J. W. Clegg, and the title by mesne conveyance passed on down to appellants. In all the conveyances from Hudson to Reynolds on down to appellants the property was described as lot 1 of block 74, and each vendee held possession of the strip in controversy claiming it as a part of lot number 1.

Mrs. Kilpatrick testified as follows: "Mr. Reynolds built his house just north of the fence I had built, and was living there when we moved away. I never claimed at any time the land north of the fence I built. Mr. Reynolds claimed and lived on the land just north of the fence; I never did claim or assert any right to the land that Reynolds fenced in. I saw Reynolds fencing in the land and building the house; we were living there at the time; I never at the time or after claimed any part of the land that he fenced." She further testified that when she built the fence she supposed that there was an alley on the north side of her lot, and that she set her fence so as to leave this alley out, but Reynolds built his fence up to and adjoining her fence, which was thereafter used as a partition fence.

Appellee, Simmons, took possession of lot number 4 under his purchase from Westal in October, 1897. Sometime early in 1901 he caused the line of lot 4 to be resurveyed by J. B. White, the city engineer, who gave to lot four the alley shown by the White map to be, on the north side, and established the north line of lot 4, 12 feet north of the aforementioned division fence. Appellee moved this fence so as to take in the alley without objection from any one; lot number 1 being at that time in possession of a receiver appointed by the United States Circuit Court in a suit therein pending.

On July 15, 1901, one Evans, a tenant of appellant's, removed from the dwelling house erected by Reynolds on the strip now in controversy, and appellee, Simmons, immediately took possession, and asserted claim of title thereto as a part of lot 4.

Appellants thereupon commenced an action of ejectment against appellee for possession of the property, and subsequently filed an amended complaint, setting forth in substance the facts herein recited, and prayed that the boundaries between lots 1 and 4 be declared as established and recognized by all the previous owners since the conveyances from Hudson, and that the possession of lot 1, including the strip in controversy, be awarded to them. Upon appellant's motion, and over the objection of appellee, the case was transferred to the chancery court, where it was finally heard, and a decree rendered dismissing the complaint for want of equity, and quieting the title to the strip in controversy in appellee.

Appellee, in his answer, denied all the material allegations of the complaint, and alleged that the strip in controversy was a part of lot 4 owned by him. He also denied that the possession by appellants and those through whom they claimed title had ever been adverse to this strip of land.

J. J. Martin, a witness introduced by appellee, testified that he was a surveyor by profession, and that he surveyed and platted the, Tannehill & Owen's Addition, and that the strip in controversy was, according to the plat on, record in the office of the recorder, a part of lot 4, which lot he said was 221 feet deep. He further testified that the original plat did not give the, dimensions of the lots in block number 74, but that they could be ascertained with reference to other lands and the line of adjacent lots. J. B. White, one of the makers and publishers of the plat of the city, was introduced as a witness by appellants, and testified that lot four was only 154 feet deep, as shown by his published map, which he said was correct.

Decree reversed.

White & Altheimer, for appellants.

Open, adverse, notorious and continuous possession is sufficient, without color of title. 30 Ark. 656; 33 Ark. 154; 60 Ark. 401; 59 Ark. 627; Buswell, Lim. & Adv. Pos. § 250. Simmons was estopped by his silence. 33 Ark. 465; 53 Ark. 196; 70 S.W. 469; 55 Ark. 296; 62 Ark. 319. Appellees were guilty of laches. 42 Ark. 300; 55 Ark. 92; 23 Ark. 708; 19 Ark. 522; Sand. & H. Dig. § 4815; 19 Am. & Eng. Enc. Law, 239.

Bridges & Wooldridge and Crawford & Gantt, for appellees.

The conveyance carried all of lot four. 1 War. Vend. § 375; 2 Dev. Deeds, § 1020; 15 Ark. 297; 64 Ark. 240. Where one of two coterminus proprietors, by mistake, incloses land of another, intending to occupy only the land called for by his deed, his possession is not adverse. 82 S.W. 834; 59 Ark 626; 35 S.W. 900; 12 S.W. 628; 54 Ia. 119; 15 Ark. 297. The doctrine of estoppel does not apply, there was only a mistake. Big. Estop. 552, 620; Bisph. Eq. 408; 53 Ark. 196; 56 Ark. 380. No lapse of time short of that prescribed by the statute will bar appellee's right. Kirby's Dig. § 5056; 46 Ark. 25; 47 Ark. 301; 67 Ark. 320. Successive trespassers cannot tack possession. Wood, Lim. § 271; Busw. Lim. & Adv. Pos. § 239; 1 Cyc. 1001. The statute of...