Deweese v. Logue
| Decision Date | 29 January 1945 |
| Docket Number | 4-7514 |
| Citation | 185 S.W.2d 85,208 Ark. 79 |
| Parties | Deweese v. Logue |
| Court | Arkansas Supreme Court |
Appeal from Lincoln Chancery Court; Harry T. Wooldridge, Chancellor.
Affirmed.
Robert A. Zebold, for appellant.
E W. Brockman, for appellee.
Appellant and appellees are the owners of adjoining lands located in the northeast quarter (NE 1/4) of the southeast quarter (SE 1/4) of section twenty-six (26), township nine (9) south, range seven (7) west, in Lincoln county, Arkansas. Appellant W. E. Deweese owns the west half of this forty-acre tract having acquired title by deed dated September 13, 1926, while appellees, through Thomas Logue now deceased, acquired title to the south 13 acres of the east half of said 40-acre tract sometime in the year 1927. A long-established road runs north and south through said 40-acre tract of land. The premises involved in this controversy are situated west of this road and comprise a 4.71-acre parcel, triangular in shape located between the east and west lines of said 40 acres with the south line of said forty as a base.
Appellant W. E. Deweese moved on the west half of said forty in February, 1927, and erected a fence west of said road which enclosed the lands in controversy. T. S. Logue, under whom appellees claim, moved on the east half of said forty-acre tract in the same year and built a house on the east side of said road which is located on the 13-acre tract, but not upon the disputed parcel. Appellant has continued in possession of the 4.71 acres and has used same as a pasture since he built the fence in February, 1927.
This suit was begun August 9, 1943, by appellee Mae Logue as guardian of her son Kenneth Logue, a minor, for the purpose of restraining appellant from cutting and removing timber from the 4.71-acre parcel in dispute in this action. Appellant filed an answer and cross-complaint making appellee, Mae Logue, a party to this suit individually, pleaded title by adverse possession of the disputed parcel of land and sought to have his title to the lands involved quieted in himself.
The decree of the chancery court found that appellant had acquired the west half of said forty acres and, intending to construct a fence on the east boundary line of his 20-acre tract, through error enclosed approximately 4.71 acres of land belonging to appellees; and that it was his intention at the time to enclose with the fence and to occupy the west half of said forty-acre tract and none other. The court further found that appellant had failed to establish his defense of adverse possession of the 4.71-acre parcel of land; and that appellees had established the allegations of their complaint by a clear preponderance of the evidence and were entitled to the relief prayed. The court thereupon enjoined appellant from asserting title to the property in dispute and allowed him 30 days within which to remove the fence enclosing the 4.71-acre tract or forfeit the right to so remove it. Appellant has prosecuted this appeal to reverse said decree.
The principal question before the chancellor was the nature of appellant's possession of the 4.71-acre tract and whether or not such possession ripened into title by adverse holding of said land by appellant for the statutory period of seven years.
E. A. Harris testified that he was the county surveyor of Lincoln county and that sometime prior to 1931 he assisted government men in making a survey of that part of the county; that in 1931 he made a "check survey" of the lands in controversy. He also testified that he was employed by Vird Hill, brother of appellee Mae Logue, to make a survey of the lands on February 7, 1934; that he found, and the plat which was introduced as evidence tends to show, that the 4.71-acre parcel in controversy is definitely located in the 13-acre tract owned by appellees. He said he told Mr. Hill that he would not make a survey unless appellant agreed to it. After the survey was made, he had a conversation with appellant in which appellant told him he didn't know whether the line run by witness was right or not, but that all he wanted was what was his. He also testified that appellant now has a complete 20 acres in the west half of the forty which does not include the lands in dispute.
Vird Hill, brother of appellee, Mae Logue, testified that in 1931 Joe Thornsberry, a former owner of the 40-acre tract, pointed out the land lines to him, and that later appellant pointed out the place where Joe Thornsberry had told him the line was, and that this was a different place; that they could not agree on the lines and that appellant agreed that a survey be made to determine the correct boundaries; that such survey was made by Jack Harris, Noah Deweese, son of appellant, now deceased, and Dell Deweese, a brother of appellant; that this survey was made in 1934, and after it was made he talked with appellant in the presence of his brother about the survey. At that time appellant said, "If the survey is right that satisfies me." And when his brother Dell assured him that they were positive about the survey, appellant said, Appellant further said that he just wanted what he had a deed to, and that witness informed him that if he was satisfied about the survey they did not care for him using the land as long as he wanted to use it. Witness further testified that he cut timber several times on the disputed tract after the survey without any complaint from appellant.
Appellee, Mae Logue, testified that her husband died in 1929 in the house which is now located on the 13-acre tract; that in 1940, when the controversy arose about the timber cutting on the 4.71-acre parcel in controversy, appellant told her that he just wanted what he owned, what belonged to him. He further said he didn't want anybody else's property.
Ernest Logue, brother of T. J. Logue deceased, testified that he helped Ewell Hill cut timber on appellant's 20-acre tract in 1940 and that they cut up to the line established by Surveyor Harris; that he talked with appellant about cutting the timber on the tract in controversy and appellant told him he would rather wait until the line was fixed right because he didn't want anything except what was his.
Ewell Hill, brother of Mae Logue, testified that he bought timber from ...
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