Shirey v. Whitlow

• Decision Date: 05 November 1906
• Citation: 97 S.W. 444,80 Ark. 444
• Parties: SHIREY v. WHITLOW
• Court: Arkansas Supreme Court

97 S.W. 444

80 Ark. 444

SHIREY v. WHITLOW

Supreme Court of Arkansas

November 5, 1906

Appeal from Lawrence Circuit Court; L. B. Poindexter, Special Judge reversed.

Judgment reversed and cause remanded.

J. N Beakley, for appellant.

1. Appellant had the county surveyor to lay off the land he wanted to fence, and has had it fenced, cleared and in cultivation for at least ten years. 59 Ark. 628. The evidence did not justify the giving of instruction 2. It does not tend to show that appellant claimed or fenced the land through mistake as to its boundaries, or that he intended to hold only to the true boundary line wherever that might be. 54 Ark. 336; 42 Ark. 58; 16 Ark. 651; 23 Ark. 289; Ib. 730; 37 Ark. 593; 74 Ark. 22.

2. The judgment is void for uncertainty in description of the land. 34 Ark. 589; 60 Ark. 489; 28 Ark. 372; 12 Ark. 422; 14 Ark 38.

Appellee, pro se.

OPINION

RIDDICK, J.

This is an appeal by A. W. Shirey from a judgment rendered against him in favor of J. M. Whitlow for the recovery of two small tracts of land containing only a few acres. These parties own adjoining tracts of land, and the evidence tends to show that some fifteen or twenty years ago Shirey inclosed these parcels of land with other land owned by him, cleared them and has cultivated them continuously since under the belief that he was the owner thereof.

Whitlow brought this action against Shirey to recover possession of the land.

When a landowner, acting under a mistake as to the true boundary between his land and that of another, takes possession of land of another, believing it to be his own, incloses it, claims title to it and holds possession for the statutory period, he becomes the owner, for such possession and claim of title, though founded on a mistake, would be adverse; but this would not be so if his intention was to claim only to the true line, wherever that may be, for then the possession would not be adverse beyond such line. Wilson v. Hunter, 59 Ark. 626, 28 S.W. 419; 1 Cyc. 1037, and cases cited.

But, while the presiding judge correctly declared the law on this point, he also told the jury that if "the defendant within seven years before the beginning of this suit in any way recognized that the lines claimed by him were not the correct lines, or recognized that the land of plaintiff was in defendant's field," the jury should find for the plaintiff. Now, this instruction was not only incorrect, but under the evidence in this case it was misleading and prejudicial. For there was evidence tending to show that when, a short time before this action was commenced, the plaintiff informed defendant that he had some of plaintiff's land inclosed with land in defendant's field, the defendant asked him if he claimed the rails, and afterwards offered to buy the land from plaintiff. This offer to purchase was to a certain extent a recognition of plaintiff's claim, but at the time it was made the defendant had already been in possession of the land for over seven years. This continuous possession for the statutory period, if adverse, divested plaintiff and his grantor of the title, and gave it to defendant, and the mere fact that defendant afterwards in conversation with plaintiff recognized the justness of his claim to the land did not divest the title from defendant or estop him from asserting such title. If one before the statutory period has run, and before he has acquired title by adverse possession, acknowledges or...