Kimble v. Willey

204 F.2d 238, 38 A.L.R. 2d 814, 1953 U.S. App. LEXIS 2418

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 14, 1953
• Docket: 14435_1
• Status: Published

Opinions

RIDDICK, Circuit Judge.

The plaintiff Kimble brought this action against the defendant Willey in the United States District Court for the Eastern District of Arkansas on December 30, 1948. The action was one to quiet title to certain lands in Arkansas of which the District Court had jurisdiction because of diversity of citizenship of the parties. In addition to the denial of the plaintiff’s claim of title and the assertion of his claim of title, the answer of defendant Wil-ley put in issue questions of fact concerning the legal description of the area in controversy, including whether the land was correctly described as within the area of Desha County, Arkansas, as claimed by the plaintiff, or in Arkansas County, Arkansas, as claimed by defendant; and, in the alternative, asserted title in the defendant based upon the claim of adverse possession of the area in controversy for more than seven years prior to the institution of the action under the applicable Arkansas statute of limitations.

The District Court decided all questions concerning the description and location of the area in controversy in favor of plaintiff, holding that the record title to the land was in the plaintiff but sustaining the defendant’s claim of adverse possession. On the first submission of the action we reversed the District Court. This rehearing was granted for a reconsideration of our interpretation and application of controlling Arkansas law on the question of adverse possession.

The facts in the case are stated in the opinion of the District Court, 98 F.Supp. 730, and in our opinion on the first submission of the case, 198 F.2d 812. We are concerned only with the facts pertaining to the question of adverse possession.

The area in controversy is wild, unimproved riparian land, for many years locally known as Cook’s Point, on the Arkansas River. Because of the action of the Arkansas River over many years prior to 1926 uncertainty arose as to the correct description and location of the area in controversy. The record discloses that one of plaintiff Kimble’s predecessors in title acquired the land on February 10, 1933, under a deed of conveyance which described the area in controversy as located in Desha County, Arkansas. And later, on the 31st of July, 1944, because of the uncertainty existing concerning the location of the land, plaintiff’s predecessor received a quitclaim deed from the same grantor reciting that a question had arisen as to the county in which the land was located and the intention of the grantor to convey the land whether located in Desha, Arkansas, or Lincoln County, Arkansas. On the 9th of June, 1947, plaintiff Kimble purchased the land from his immediate predecessor under a deed containing the same stipulations as to the county in which the- land was located. The correct description and location of the area in controversy was not judicially determined until settled in the present action in the District Court.

In June of 1926 the tax collector of Arkansas County sold the area in controversy, described as located in Arkansas County, for delinquent taxes for the year 1925 to T. P. Bass, Jr., a minor. In June 1928 the land sold by the collector remaining unredeemed, the county clerk of Arkansas County issued to the purchaser a tax deed conveying the lands to him. The deed was duly placed of record in Arkansas County. At some time after the sale of the land for taxes by the authorities of Arkansas County, at a date not fixed by the evidence but prior to' October 20, 1930, T. P. Bass entered into possession of the area in controversy on behalf of his minor son, claiming under the tax deed above mentioned, completely enclosed the area by fences and natural barriers, and began to utilize it for grazing cattle.

The District Court found as a fact that the possession of Bass [98 F.Supp. 734] “was actual, open, notorious, hostile, peaceable, adverse, and with the intent to acquire title thereto in opposition to the real owner thereof.” And “That the existence of these fences and the grazing of cattle were sufficient to charge Governor Lowden [Kimble’s predecessor in title, the owner of adjacent lands during the possession of Bass] with notice that the area in controversy was enclosed and occupied.” ¹

T. P. Bass obtained an order from the Probate Court of Arkansas County authorizing him as guardian of his minor son to sell the area in controversy under the description recited in the tax deed to his son. Charles F. Willey, the immediate predecessor in title of defendant Willey, became the purchaser at the sale which was duly approved by the Probate Court. On October 20, 1930, Charles F. Willey received a guardian’s deed from Bass. The District Court found that “in executing this deed, it was Bass’ intention to sell to Willey and Willey’s intention to buy from Bass the area in controversy.” ² On the same day and with the same intention Charles F. Willey leased the area in controversy to Bass for grazing purposes for a term of one year for a consideration of $1 and the agreement of Bass that his continued possession of the area in controversy, after the expiration of one year should be the possession of Willey. The lease provided that the lessor should have the benefit of the fences constructed by the lessee, obligated Bass to keep the fences in repair during his occupancy, to keep out trespassers, and prohibited him from subleasing any part of the land or cutting the timber. The guardian’s deed from Bass to Charles F. Willey and the lease from Charles F. Willey to Bass were promptly recorded in the records of Arkansas County.

On June 15, 1931, Bass, without yielding possession of the area in controversy to his landlord Willey and without notice to Willey, obtained from Governor Lowden for a term of one year for a consideration of $5 a grazing lease of lands including the area in controversy. This lease was not recorded and Willey had no notice of its existence. The lease was never extended or renewed, but it is undisputed that Bass remained in possession, maintaining the fences, and using the area in controversy for grazing cattle until the filing of this action in 1948.

In 1936 Governor Lowden sold timber on certain Arkansas lauds including the area in controversy. The contract for the sale of the timber was never recorded. The purchaser began removing timber in July of 1937 and completed operations by August 18, 1937. Charles F. Willey had no notice of the cutting or removal of the timber prior to 1947.

The effect to be given the Bass-Lowden lease, the Bass-Willey lease, and the timber-cutting operations of 1937 under Arkansas law upon Willey’s claim of adverse possession of the area in controversy for seven years prior to the institution of this action by Kimble presents the problem in this case.

The District Court made the following declarations of law:

“In determining whether or not a claimant has been in adverse possession of a tract of land for the requisite period of time the possession of his tenant is considered as his own * * *. And a tenant in possession under a landlord claiming under one title may not, without yielding possession, acquire a title hostile to that of his landlord or do anything to adversely affect the landlord’s title and possession; nor may he attorn to a title adverse to that of his landlord even though such title is a better title than that of his landlord. * * * ”

Concerning the Bass-Lowden lease:

“At the time this lease was executed Bass was upon the, land as tenant of Charles F. Willey, and under the laws of Arkansas Lowden was charged with notice of Bass’ presence on the land and of the right or title by which he was there. Bass’ action in attempting to recognize and hold under the Low-den title without yielding possession to Willey, and without any notoriety, did not prejudice Willey’s rights nor did it oust him from possession.”

■Concerning the timber-cutting operations in 1937:

“Assuming without deciding that this cutting and removing of the timber interrupted Willey’s possession of the area, it did not validate Bass’ attempted attornment to Governor Lowden, did not change Bass’ possession from that of Willey to that of Lowden, did not oust Willey from possession, and did not change the nature of Willey’s possession. The continued possession of Bass after August 18, 1937, as the tenant of Willey, which possession possessed all of the attributes necessary to make operative the seven year statute of limitations, persisted for more than seven years and vested title to the area in controversy in Charles F. Willey, and defendant has succeeded to his title and is the owner of the land in controversy.”

The question here is whether under controlling Arkansas law Willey’s possession of the area in controversy through his tenant Bass was so interrupted by Bass acknowledgment of the title of Low-den as to deprive Willey’s possession of the element of hostility necessary to the running of the Arkansas statute of limitations. The opinion of the District Court contains a very full and complete survey of the decisions of the Supreme' Court of Arkansas in cases arising between landlord and tenant, vendor and vendee, and dealing with questions of adverse possession. Beyond question, these cases sustain the District Court’s ruling that the possession of the tenant is to be considered the possession of his landlord in cases involving the question of adverse possession, and that a tenant is estopped to deny his landlord’s title without a surrender of possession under his lease. Admitting that none of the cases mentioned dealt with the precise factual situation involved in the present case, the District Court felt constrained in deciding the question of local substantive law to follow a decision of the Sixth Chancery District of Arkansas in the case of Gwinn v. Reed, in which it was squarely held that a landlord’s claim of, adverse possession was not affected by his tenant’s recognition of a hostile title. This opinion of the State court is quoted at length in the District Court’s opinion.

On reconsideration of the record before us, we reach the conclusion that the decision of the District Court should be affirmed. A Federal court, trial or appellate, on a question of local law is required to accept, in the absence of higher and better evidence to the contrary, the decision of a State intermediate court. West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139; Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, Note 7, at page 189, 61 S.Ct. 513, 85 L.Ed. 725.

Nor- is the conclusion reached by the District Court without support in other jurisdictions. For example, the general rule is stated in 4 Tiffany Real Property, 2d Ed., § 1168 (citing many cases), as follows :

“If one is in wrongful possession by his tenant, a question may arise as to whether the tenant’s acknowledgment of the true owner’s title deprives the possession of the element of hostility, so as to interrupt the running of the statute. There are a number of decisions to the effect that such acknowledgment 'does not interrupt the running of the statute, while it has occasionally been asserted that it does cause such interruption. And in a few cases it has been decided that it causes such interruption if the rightful owner does not know of the relation of tenancy. These latter cases would seem to indicate the proper distinction in this regard. If the rightful owner has no reason to suspect that the person wrongfully in possession of his land is so in possession, not in his own behalf but in behalf of another, he is justified in assuming that the person in possession has full power to characterize his possession as being hostile or the reverse, and if such person acknowledges the true owner’s title, the latter is not guilty of laches in failing to take legal proceedings. On the other hand, if the rightful owner has reason to know that the person in possession is in possession merely in behalf of another, he has no right to assume that such person has authority to acknowledge his title, or, by reason of such acknowledgment, to refrain from legal proceedings. In at least one case it has been said that the fact that the landlord is unaware of the acknowledgment by his tenant of the true owner’s title is a reason for not regarding such acknowledgment as effecting an interruption. This view is apparently based on the theory that if the landlord is aware of the acknowledgment by. the tenant, he may be regarded as having previously authorized it, or as being in a position to repudiate it and to recover possession from the tenant.

“Occasionally the asserted inability of the tenant to interrupt the running of the statute by taking a lease from the true owner is in terms based on the rule that a tenant in possession cannot attorn to a third person not having the reversion. But whether the acknowledgment of title takes the form of an attornment, that is, the acceptance of a lease, is immaterial. The tenant cannot usually interrupt the running of the statute in favor of his landlord, by acknowledging title in the true owner, for the reason that he has no authority to make such an acknowledgment. He represents his landlord for the purpose of holding possession against third persons, but not for the purpose of acknowledging the title of third persons.”

Under Arkansas law, as the District Court declared, Lowden when he leased to Bass was charged with notice of Bass’s possession of the land and the right or title by which he held. Hughes Bros, v. Redus, 90 Ark. 149, 118 S.W. 414; Smith v. Southern Kraft Corporation, 203 Ark. 814, 159 S.W.2d 59; Stricker v. Britt, 203 Ark. 197, 157 S.W.2d 18; Clements v. Fuller, 209 Ark. 849, 192 S.W.2d 762; Lollar v. Appleby, 213 Ark. 424, 210 S.W. 2d 900. Lowden at the time the BassLowden lease was executed had no right to assume that Bass had authority to recognize his title. On the other hand, Low-den was charged with notice of all facts which a reasonable investigation of the basis of Bass’s possession would have disclosed. The case of Chicot Lumber Co. v. Dardell, 84 Ark. 140, 104 S.W. 1100, cited in our original opinion, 198 F.2d 812, , has no application on the facts in this case. There it was held that the possession of lands for grazing purposes taken and held under contemporaneous grants from opposing claimants to the title was hostile to neither claimant. In this case, however, Bass had been asserting title to the land for several years before the Bass-Lowden lease was executed, and was in actual and hostile possession of the land under claim of ownership at the time he sold to Charles F. Willey and became his tenant under a lease which was placed of record and which required Bass to hold the land for Willey against hostile claimants.

We conclude that the decision of the District Court is supported by available authority. But even in the absence of such authority, this court will not in this case substitute its judgment for that of the District Court.

“This Court has repeatedly ruled that it will accept the considered views of a District Judge as to doubtful questions of local law. Many of the cases in this Court and the Supreme Court which support that rule will be found in the case of Buder v. Becker, 8 Cir., 185 F.2d 311, 315-316. In Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43, we said: ‘The burden of demonstrating error is upon the Casualty Company. In a case controlled by local law, that burden is a peculiarly heavy one. This Court is not an appellate court of the State of Missouri and establishes no rules of law for that State. We have repeatedly said that, in reviewing doubtful questions of local law, we would not adopt views contrary to those of the trial judge unless convinced of error, and that all that this Court reasonably can be expected to do in such cases is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the local law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and cases cited. If a federal district judge has reached a permissible conclusion upon a question of local law, we will not reverse, even though we may think the law should be otherwise.’ ” National Bellas Hess, Inc. v. Kalis, 8 Cir., 191 F.2d 739, 741.

The opinion and judgment of this court on the original submission of this case are vacated. The judgment of the District Court is affirmed.

1 . To constitute adverse possession under Arkansas law it is not necessary that the adverse claimant enclose the land with fences or erect buildings upon it. It is sufficient that his possession is evidenced by the continued use of the land for purposes for which it is susceptible. Davis v. Strong, 208 Ark. 254, 186 S.W.2d 776.

2 . The identical conclusion was made by the Supreme Court of Arkansas in Bass v. Willey, 216 Ark. 553, 226 S.W.2d 980, decided January 30, 1850, holding that Bass as the tenant of Willey was es-topped to deny Willey’s title.