McLendon v. Johnston
| Decision Date | 16 October 1967 |
| Docket Number | No. 5--4925,5--4925 |
| Citation | 419 S.W.2d 309,243 Ark. 218 |
| Parties | Evelyn McLENDON, Appellant, v. Dick JOHNSTON, Jr., et ux., Appellees. |
| Court | Arkansas Supreme Court |
Daggett & Daggett, Marianna, for appellant.
Harold Sharpe, Forrest City, for appellees.
The appellant, Mrs. McLendon, and the appellees, Johnston and his wife, own adjoining lands in Marianna. In 1965 Mrs. McLendon began the construction of a house that eventually proved to encroach by about 3.4 feet upon the lot-and-a-half to which the Johnstons have record title. At about the time the house was completed the Johnstons brought this suit to compel Mrs. McLendon to remove the encroachment. This appeal is from a mandatory injunction granting the relief prayed. For reversal Mrs. McLendon relies upon adverse possession and estoppel.
There is hardly any dispute about the facts. Mrs. McLendon formerly owned all three of the contiguous lots now in question. In 1952, when all the lots were unimproved, she sold the north lot-and-a-half to a Mr. Bronson, whose title later passed to Ronald May. In 1954 May built the house that is now owned and occupied by the appellees.
The present controversy really stems from May's having built a picket fence that lacked several feet of being on the true boundary line between his property and that of Mrs. McLendon. May's fencing ran south along part of his back boundary line and then turned east and continued for about two thirds of the distance to the street in front of the house. The illusion that the fence marked the true boundary was doubtless compounded by the fact that the sidewalk in front of May's house was paved only to the point at which it would have intersected the fence if the fence had been extended to the east line of May's land.
When the Johnstons bought their house in 1962 they were told that the east-west fence was not on the line--that they were getting a strip on the other side. By then the east-west part of the fence had deteriorated, and Johnston removed it long before Mrs. McLendon began to build a house on her land. Mrs. McLendon testified that she 'understood' that the fence had been on the boundary. Her contractor accordingly ran a string from the end of the Johnstons' sidewalk to the end of the Johnstons' back fence and positioned the new house with reference to that line. There is no dispute about the fact that the McLendon house does encroach upon the Johnston's property to a distance of 3.4 feet.
We may dispose quickly of the appellant's claim of adverse possession. Until she began to improve her lots in 1965 they were vacant and unenclosed. Hence her assertion of title by adverse possession rests solely upon the fact that her neighbor placed his fence decidedly short of the common boundary. It is firmly settled, however, that ...
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