Emerson v. Linkinogger

382 S.W.3d 806, 2011 Ark. App. 234, 2011 Ark. App. LEXIS 256
CourtCourt of Appeals of Arkansas
DecidedMarch 30, 2011
DocketNo. CA 10-1002
StatusPublished
Cited by5 cases

This text of 382 S.W.3d 806 (Emerson v. Linkinogger) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emerson v. Linkinogger, 382 S.W.3d 806, 2011 Ark. App. 234, 2011 Ark. App. LEXIS 256 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

| Appellants Melvin and Jeanette Emerson appeal the May 12, 2010 decree filed by the Van Burén County Circuit Court quieting title to the disputed land in favor of appellees Stephen and Toni Linkinogger and Harold and Luann Christian. Appellants argue that the circuit court erred in its application of the law and in finding that they failed to prove that their possession of the disputed property was adverse and hostile. We affirm.

Appellants own property located in Section 9, Township 10, Range 15, in Van Burén County, Arkansas, adjacent to property owned by appellees. Appellants obtained title to the property by deed executed by Melvin Emerson’s mother’s trust and filed on July 29, 2003. The property was previously purchased in 1950 by his stepfather, Mr. Dillard Hall, who bought the property from his in-laws, who had homesteaded the land in 1892. Melvin |2Emerson has been familiar with the property since his mother married Mr. Hall, approximately twenty-five years ago.

The Linkinoggers obtained their property by warranty deed filed on March 19, 2008. The Christians obtained their property by warranty deeds filed on November 16, 2004, and March 3, 2005. The alleged boundary line between the properties was an old fence that had been in existence since the 1930s. Appellees commissioned a survey, dated March 18, 2008, which designated a boundary that went well into the pasture used by appellants. When appellees attempted to construct a fence on the survey line, they were stopped by appellant Melvin Emerson, who claimed that they had no right to construct the fence. On March 17, 2009, appellees filed a petition to quiet title and for an injunction seeking to establish a boundary line between the properties. On March 25, 2009, appellants filed an answer to the petition and a counterclaim seeking to quiet title up to the fence, based upon over seventy-five years of uninterrupted use.

A trial was held on April 9, 2010. At trial, appellant Melvin Emerson testified that he had run cattle on his land and the disputed pasture land for approximately twenty-five years. He explained that his stepfather had used the property to graze goats and other animals from the time he purchased his land in 1950. Additionally, appellant Melvin Emerson testified that he employed Con Agra to till the soil in the pasture and spread “chicken sludge” on the tilled soil for fertilizer. He explained that he and his family have plowed the property, sowed grass seed, cut hay off of it, grazed cattle, and hunted on the property the entire time they have gowned it and that the use of the property extended up to the fence line. Mr. Emerson did acknowledge that a thicket had grown up around the fence and that, since the filing of the lawsuit, he had made improvements to the fence. It is undisputed that the pictures of the fence that were introduced into evidence were taken after repairs to the fence were made.

Appellants introduced the testimony of Vesta O’Neal, who also owns property adjacent to appellants along the old fence line. Mrs. O’Neal testified that she moved to this property in 1936. She testified that she considered the fence to be the property line and that the fence had been in the same location since the late 1930s. She explained that appellant Melvin Emerson’s stepfather and predecessor in interest, Mr. Hall, ran cattle on this property for as long as she could remember.

Mr. Christian testified that, not only was the fence line overgrown with brush and not visible, but also that the fence was ineffective in that it allowed appellants’ cattle to escape onto his property. Mr. Christian explained that he had tried to fix the fence line by picking the fence up and nailing it to the post as a courtesy to Mr. Emerson. The cattle had previously been kept inside Mr. Emerson’s property because of the vines and the growth around the fence line, but once Mr. Christian began clearing out the overgrown woods, which included the fence line, and building a field, the cows began to cross the dilapidated fence.

Appellees argued that the requirements for adverse possession had not been established; therefore, the property line should be the survey line. The circuit court agreed with appellees, ruling that the property line was established by the survey and that appellants had not proven 14that their occupation of the disputed property was “adverse and hostile.” A final decree was filed on May 12, 2010, and a notice of appeal was filed on May 18, 2010.

We traditionally review quiet-title and boundary-line actions de novo. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698. We will not, however, reverse findings of fact unless they are clearly erroneous. Id. Further, whether possession is adverse to the true owner is a question of fact. Id. We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. Id. A finding is clearly erroneous if, “although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed.” R.K. Enters. LLC v. Pro-Comp Mgmt. Inc., 372 Ark. 199, 204-05, 272 S.W.3d 85, 89 (2008). In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position to determine witness credibility and the weight to be accorded their testimony. Thurlkill v. Wood, 2010 Ark. App. 319, 374 S.W.3d 790.

While the above standard applies to findings of fact, appellate courts will not defer to the circuit court on a question of law. Jones v. Abraham, 67 Ark.App. 304, 310, 999 S.W.2d 698, 702 (1999). The circuit court’s decision will be reversed if it “erroneously applied the law and the appellant suffered prejudice as a result.” Id. A question of law is presented where the facts are “undisputed or unequivocal.” Sterne, Agee & Leach, Inc. v. Way, 101 Ark.App. 23, 31, 270 S.W.3d 369, 376 (2007). Where the facts are not disputed in an adverse-possession case, the question presented on review is purely one of law. Moore v. Dunsworth, 2010 Ark. App. 446, 2010 WL 2103533.

| Appellants initially argue that the discretion of the circuit court was limited in this case because there was no dispute regarding the facts forming the basis of appellants’ adverse-possession claim. They submit that the Christians do not possess any information regarding the use of the property or the fence prior to their purchase of the property in 2004, and the Linkinoggers possess very limited knowledge regarding the property before it was purchased in 2008. Appellants point out that appellees did not present any other evidence at trial regarding appellants’ use of the property, or the history of the fence, for any time prior to their ownership. Thus, appellants claim that there was no issue of fact decided by the circuit court in finding that they did not prove their claim of adverse possession.

Appellants claim that the only dispute in this case is the application of well-established law to the uncontradicted facts.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gangle v. Spiry
2018 SD 55 (South Dakota Supreme Court, 2018)
Jenkins v. Jenkins
2017 Ark. App. 642 (Court of Appeals of Arkansas, 2017)
Klenakis v. Klenakis
2017 Ark. App. 36 (Court of Appeals of Arkansas, 2017)
Lafferty v. Everett
2014 Ark. App. 332 (Court of Appeals of Arkansas, 2014)
Smith v. Smith
385 S.W.3d 902 (Court of Appeals of Arkansas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
382 S.W.3d 806, 2011 Ark. App. 234, 2011 Ark. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emerson-v-linkinogger-arkctapp-2011.