Turquett v. Mcmurrain

• Decision Date: 17 November 1913
• Citation: 161 S.W. 175,110 Ark. 197
• Parties: TURQUETT v. MCMURRAIN
• Court: Arkansas Supreme Court

161 S.W. 175

110 Ark. 197

TURQUETT v. MCMURRAIN

Supreme Court of Arkansas

November 17, 1913

Appeal from Howard Circuit Court; Jeff T. Cowling, Judge; reversed.

STATEMENT BY THE COURT.

This is a suit in ejectment by appellant against the appellee for a strip of land about seventy-five feet wide at one end, and about forty-five feet wide at the other end, along the section line between sections 34, in township 9 south, range 27 west, and section 3, in township 10 south, range 27 west also the township line running east and west between said sections. The complaint alleged that appellant was the owner of the southwest quarter of the southwest quarter of section 34, township 9 south, range 27 west, including all the enclosed land, and which, in addition to the above, included the strip in controversy. It also alleged that something over twenty years ago, the line between the land of appellant and the appellee was surveyed and established by I. M. Puckett the county surveyor of Howard County, "with the knowledge, consent and approval" of the appellee, and had been recognized by the appellee, as well as by the appellant, as the line between their land for more than twenty years; that the parties, fifteen years ago, had built a partnership fence on the line thus established; that appellant had been in the adverse possession of the lands claimed by him for more than twenty years. He alleged that since December 31, 1912, appellee had fenced and taken possession of the strip on the south boundary of appellant and had been in the unlawful possession thereof since that time.

The appellee denied that any line was ever established between sections 3 and 34 that was ever acquiesced in until the year 1912, at which time the line was run out by the surveyor of Howard County, and the line established; that in establishing said line, appellant's fence was found to be over the south boundary line between sections 3 and 34, and enclosing certain land in section 3 belonging to appellee, which appellee had always owned, and had the right to the possession of; that appellee owned, and always claimed, all of the northwest quarter of the northwest quarter of section 3, in township 10 south, range 27 west, and appellant was the owner of the southwest quarter of the southwest quarter of section 34, township 9 south, range 27 west, claiming to the section line, and no further; that the land enclosed by appellant belonging to appellee was not held by him under the claim of ownership, but only believing that he was the owner of the land in section 34; that appellant always acknowledged the right of ownership of appellee of all land in section 3 adjoining appellant's land in section 34.

The appellant testified, in part, as follows: He owned eighty acres of land in sections 33 and 34. Appellee's land lay south of appellant's east forty, and, as appellant supposes, is in section 3. He considered the land he had enclosed as his by description in his deed. He claimed the land south of the line established by Surveyor Huddleston as a part of section 34, and had never claimed any land in section 3. Appellant's land had been under fence about twenty-two years. Appellee and appellant made a lane through there for road convenience. The fence was placed about six feet north of appellant's line. This fence remained there about eight years. Appellant and appellee then decided to enclose the road and make a partnership fence between them which they did. The line between appellant and appellee was first established by Puckett, the county surveyor, appellee and appellant being present. Each left six feet space for the road, and they afterward enclosed the road and built a partnership fence on the line established by Puckett. That has been about fifteen years ago. He had been claiming the land to the line as established by Puckett ever since. Had always intended to claim to where this line was run.

The appellee, in part, testified as follows: "I have always contended for the land that was to the section line and Mr Turquett's fence. We put the fence up there, not knowing just where the section line was. I didn't know, and I told him that I didn't know whether it was correct or not. He told me that he didn't know. It was my understanding with him that he claimed to the section line. At the time the wire fence was put up, there was no understanding or agreement that it was to be the line unless it was the section line. It has always been the agreement that the true line should govern as between us. There was an agreement between Mr. Turquett and myself in March, 1912, about the strip of land in controversy. At first he wanted to buy the land, but I would not sell it to him. He then rented it from me, and agreed to pay me the third and fourth of the 1912 crop, and to move the fence, or help me move it, when we got time.

The appellant further testified that he never proposed to buy the strip of land in controversy from the appellee. He rented the land from appellee after Huddleston made his survey in this way (quoting appellant's language): "I said (to appellee), 'You are claiming according to the Huddleston line, and I am claiming according to the Puckett line.' I said, 'I'll make you this proposition: I will rent this land from you, and when this thing is finally settled, if you get the land, I will pay you rent, and if I get the land, I don't owe you anything.' With that condition, I rented the land."

The above is enough of the testimony to show the theory upon which the cause was submitted to the jury.

The court, among other instructions, gave, at the instance of appellant, the following:

"2. You are further instructed that where there is doubt or uncertainty or a dispute as to the true location of a boundary line, the parties may, by parol, fix a line which will, at least, when followed by possession with reference to the boundary so fixed, be conclusive upon them, although the possession is not for the full statutory period; and if you believe from the evidence in this case that the true location of the line between plaintiff and defendant was in doubt or uncertainty, and that the parties agreed upon a line between them, and in furtherance thereof, put a joint fence thereon, and that the parties took possession of the land and cultivated same up to the fence so constructed, then you are instructed the line so fixed is conclusive upon the parties, whether right or wrong, although the possession of the land after agreement is not for the full statutory period of seven years."

The court refused to give prayer for instruction No. 9, as follows: "If you find from the evidence that the plaintiff held possession and claimed ownership of the strip of land in controversy for seven years before the defendant took possession about the first of the present year, this would vest title in the plaintiff, if adverse, and the testimony as to the alleged rent contract can only be considered to determine whether the possession of the plaintiff prior to the time of taking possession by the defendant was adverse to the right or claim of the defendant, and can not be considered at all unless you find that the rent contract was made unconditionally."

But, over the objection of appellant, the court amended the above instruction by striking out the words: "and can not be considered at all unless you find that the rent contract was made unconditionally," to which appellant excepted.

The court granted appellee's request for instruction No. 1, to the effect that the appellant could only acquire title to the strip of land in controversy by reason of open, continuous, notorious, hostile and adverse possession of the same for a period of seven years, and claiming it all the time as his own, and not intending to claim at any time only to the true boundary line between appellant and appellee, "if the jury found that the Puckett survey was not the true line."

And further, in appellee's prayer for instruction No. 2, the court told the jury: "So, if the jury find in this case that the plaintiff, during the time that he has had the land enclosed, only intended to claim to the true boundary line, then his possession would not be adverse within the meaning of the law, and your verdict will be for...