DIERKS LUMBER AND COAL COMPANY v. Vaughn

• Decision Date: 17 June 1954
• Docket Number: Civ. A. No. 2315.
• Parties: DIERKS LUMBER AND COAL COMPANY, a corporation, Plaintiff, v. M. H. VAUGHN and J. A. Barnett, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

131 F. Supp. 219

DIERKS LUMBER AND COAL COMPANY, a corporation, Plaintiff, v. M. H. VAUGHN and J. A. Barnett, Defendants.

Civ. A. No. 2315.

United States District Court E. D. Arkansas, W. D.

June 17, 1954.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wootton, Land & Matthews, Hot Springs, Ark., for plaintiff.

Rose, Meek, House, Barron & Nash, Little Rock, Ark., for defendants.

DELEHANT, District Judge.

The plaintiff, a Delaware corporation lawfully doing business in Arkansas, instituted this action against the two designated defendants, both citizens of Arkansas. It sought to obtain a judgment or decree quieting in it and against the defendants the title to two designated parcels of Saline County, Arkansas land, the separate parts of which were allegedly claimed by the several defendants. After the institution of the suit, the defendant Vaughn and the plaintiff adjusted their differences in such fashion that he and the land which he claimed were eliminated from the controversy, which persists only between the plaintiff and the defendant Barnett.

Barnett, answering, claims the ownership by adverse possession of the southwest quarter of the southeast quarter of section thirty-five (35), township one (1) North, range eighteen (18), West; and the west half of Lot three (3), northwest quarter of section one (1), township one (1) South, range eighteen (18) West, all in Saline County, Arkansas. The value of the described land exceeds three thousand dollars. Hence jurisdiction unquestionably exists.

Upon the opening of the trial it was made clear to the court that, although Barnett's claim extended to all of the land lately described, evidence would be advanced in support of his possession only of so much of it as lies within the alleged enclosure effected by a fence, a bluff and a river or large creek, which were the subject of considerable testimony and are discussed at length herein.

The case was fully tried on its merits and the court has considered the briefs of counsel together with the evidence. The facts, as found, are now set down.

The record title to all of the land in litigation admittedly stands in the plaintiff under conveyances of approximately thirty years standing. The evidence is silent touching the payment of taxes upon the premises.

The land in suit, although described as two parcels, lies in a single tract. Part of it, that in the southwest quarter of the southeast quarter of section thirty-five (35), lies north of the base line between townships one (1) North and one (1) South, and the rest, that in Lot three (3) of the northwest quarter of section one (1), lies south of that base line. It is unimproved, except to the limited extent that fencing stands on it. The parcel north of the base line with a minor exception immediately hereinafter noted is uncultivated rough scrub timber land. That south of the base line is somewhat less rolling and less generally timbered, and upon it are two cultivated patches, one 3.11 acres and the other 1.15 acres in extent (the latter of which to a noticeable extent and the former very slightly project northerly from the base line) and two other small parcels, one .50 acre and the other .49 acre, of larger patches located mostly on land admittedly belonging to Barnett lying adjacent to and westerly from the land in suit.

The land respecting which evidence was submitted is much longer from north to south than from east to west. Its westerly boundary runs due north and south and a segment of it is the west line of the southwest quarter of the southeast quarter of section thirty-five (35). Considering now only the land allegedly enclosed, its easterly boundary is a small river or large creek with a high bluff for its east bank which first touches the land just a few feet east of its northwest corner and runs in a southeasterly direction to a point slightly south of the base line, and then bends to the southwest and crosses the projection southward of the west boundary of the land in dispute less than one hundred feet south of its southwest corner. An improved highway extends generally in a northerly and southerly direction in the neighborhood of, but not exactly on, the west boundary of the land in suit. Northerly from the base line the highway is fairly near to the boundary line, lying slightly to the west of it at the northwest corner but crossing not far south of that corner into the land in litigation and remaining in it to the base line except for two short crossings or contacts. From the base line, proceeding southerly, the highway remains about, or slightly more than, one hundred feet east of the west line of the land in controversy until it turns quite sharply southwesterly and leaves that land at its southwest corner. Two hundred thirty-five feet southwesterly from the southwest corner of the disputed premises the highway is crossed by a cattle guard. And another cattle guard crosses it about one hundred two feet northwesterly from the northwest corner of the property in controversy.

Barnett is a farmer and school teacher who was reared from boyhood in the near neighborhood of the controverted premises, and owns land lying immediately west of that part of the disputed parcel located south of the base line. His home is three-eighths of a mile southerly from the south limit of the land sued for.

One Joe Tillery owns and occupies the parcel of land which lies immediately westerly from the southwest quarter of the southeast quarter of section thirty-five (35) and immediately north of the base line and Barnett's land just referred to.

For more than fifteen years next before the trial there had been, and at the time of the trial there was, maintained a fence along a course now described. It starts on the westerly river bank at a point one hundred forty-two feet southwest of the southwest corner of the land in suit and proceeds thence westerly to the southerly end of the south highway cattle guard. Beginning again at the northerly end of the cattle guard, it runs in a direction slightly west of north to the base line, being at all points in this course upon land admittedly owned by Barnett. Thence, it proceeds east on the base line to a point nineteen feet west of the southwest corner of the southwest quarter of the southeast quarter of section thirty-five (35). From this point it runs northerly, first for about three hundred feet on Joe Tillery's land, then for some four hundred feet on the land in suit and only slightly east of its west boundary. Returning again to the Joe Tillery land, it continues thereon until it reaches the southwesterly end of the north highway cattle guard. The fence resumes at the northeasterly end of that cattle guard and in a southeasterly curve first over land not involved in the suit crosses the north line of the southwest quarter of the southeast quarter of section thirty-five (35) and enters and is located on, the land involved. Slightly southeasterly from this location the fence reaches a high bluff constituting the east bank of the river and from that point it is no longer continuous. But the river and its high easterly bluff bank form an effective barrier to the passage of animals at all places down the course of the stream to the southwest corner of the litigated property, except at a few short intervals where ravines exist. And these are spanned by crude stakelike barriers adequate, in association with the related terrain, to restrain cattle and horses.

The fence was erected by Barnett, largely, but not entirely, in replacement of like fences maintained in approximately the same location by Barnett's father. Insofar as it rests on Tillery's land, it was installed with Tillery's knowledge and consent. Barnett now maintains, and for more than fifteen years continuously before the trial had maintained the fence.

The fence south of the base line reaches a maximum distance of about six hundred feet west from the land in suit. As it proceeds north from the base line, it is much nearer the property line, ranging from a few feet to a maximum distance of one hundred fifty nine feet near the north end of the fence where it is on Tillery's land. Along most of its course the fence can be seen from the highway; but there are segments of it which are not observable from the highway.

None of the fence is of sturdy modern design or construction. It is somewhat primitive, or perhaps more exactly rickety, yet adequate to confine domestic cattle and horses. It is made generally of barbed wire fastened to standing trees and also to posts, largely of the stake variety. Where it crosses the highway the fence is intercepted; but for those intervals the cattle guards provide fully adequate restraint against the passage of livestock.

Many years ago, and between dates not satisfactorily shown, but ending in 1934, Barnett maintained fencing along the top of the high bank running on the east side of the stream. But this segment of fence has not been kept effective for a long period of time and only traces of it appear, and these at remote and infrequent intervals.

When Barnett was a small boy his father, who was his predecessor in the ownership of the land whose legal title is now vested in Barnett, claimed ownership of the land in suit and regularly used it for the pasturing of his livestock and small parcels of it for the tillage of annual crops. When his father died Barnett succeeded as one of his heirs to the ownership of an undivided share in his father's land and bought the interests therein of the other heirs.

Throughout his ownership of his own land and for more than fifteen years next prior to the trial Barnett has continuously, regularly, and under a claim of ownership, used the land within the boundaries of the fence and the river and bluff for the pasturing of his cattle. This employment has been more general in the area south, than in that north, of the base line, but that has arisen in consequence of the...