Samuel Wallace and Mary Wallace v. Rail Resources, LLC

2022 Ark. App. 506, 657 S.W.3d 875

• Court: Court of Appeals of Arkansas
• Decided: December 14, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 506 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-21-463

SAMUEL WALLACE AND MARY Opinion Delivered December 14, 2022 WALLACE APPELLANTS APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70CV-18-440] V.

HONORABLE SPENCER G. RAIL RESOURCES, LLC SINGLETON, JUDGE APPELLEE AFFIRMED

BART F. VIRDEN, Judge

Samuel and Mary Wallace appeal the Union County Circuit Court’s ruling denying

their petition for adverse possession.1 We affirm.

I. Relevant Facts

In October 2006, Mary and Samuel Wallace bought a 3.5-acre parcel of land

containing a residential home from Edwin Alderson, Jr., individually and as an executor of

1 The court ruled on several other claims raised by both parties. The court found that the Wallaces had an implied easement regarding the driveway and sewer lines on the disputed property. The court also quieted title in RR’s 16.5 acres, denied RR’s claim for damages stemming from the delay of the removal of trees from the property, and granted RR an award of damages for conversion. The court also denied RR’s request for ejectment and enjoined the Wallaces from entering RR’s property. There are no issues on appeal stemming from these other rulings. the estate of his deceased wife, Janie Alderson.2 The Wallaces’ property is a sectioned-off

parcel of the Aldersons’ original 20 acres. The remaining 16.5 acres belonged to Edwin. The

Wallaces began living in the home immediately after closing. In January 2018, Tracy

Alderson sold the remaining 16.5 acres to Rail Resources, LLC (RR), owned by John Hill

and Jerry Ramsey.3

On September 13, 2018, the Wallaces filed a petition for prescriptive easement. A

small section of the Wallaces’ driveway was located on RR’s land, and since their purchase

of the property in 2006, they had used that section of driveway to access their property. Also,

the Wallaces’ sewer and utility lines ran underneath the driveway. The Wallaces asserted that

they had acquired an easement pursuant to twelve years of open, notorious, hostile, and

adverse use of the section of driveway and their sewer and utility lines. RR counterclaimed,

arguing that the Wallaces were trespassing on the property, and they should be ordered to

remove their utility and sewer lines.

2 The Wallaces’ property is located at 3701 Calion Road in El Dorado. 3 It is not entirely clear from the record when the 16.5 acres became the property of Edwin Boyd Alderson Properties, LLC, which is the entity that sold the land to RR in 2018. The warranty deed executed in January 2018 granting the land to RR was signed by Tracy Alderson, who was identified as

the person authorized by said Limited Liability Company to execute such instrument, stating her capacity in that behalf), to me personally well known (or satisfactorily proven to be such person), who stated that she was the sole Trustee of the Edwin Boyd Alderson Land Trust, Manager of Edwin Boyd Alderson Properties, LLC, an Arkansas Limited Liability Company and was duly authorized in this capacity to execute the foregoing instrument for and in the name and behalf of said Limited Liability Company[.]

2 On October 19, 2020, the Wallaces filed an amended petition for prescriptive

easement, declaratory judgment quieting title, and injunctive relief. The Wallaces contended

that title to a 5.475-acre tract of land adjoining the south and west boundary of their

property, formerly belonging to the Aldersons and now the property of RR, should be

quieted in their name. The Wallaces claimed that they

moved onto their property with the understanding that the strip of land running along the South and West boundaries of the survey attached to the original petition, and which they maintained, mowed, and improved was their own property included within the legal description of their special warranty deed.

They also requested that the court enjoin RR from driving heavy equipment over

their utility lines located under the driveway to prevent them from being damaged and from

tearing down any existing structures or building on the disputed land.

At the trial, Mary Wallace described their family’s use of the disputed property from

2006 to 2018, as follows.4 In February 2007, shortly after the Wallaces took possession of

their property, they received a letter from Edwin regarding some antique bricks he believed

Mary’s brother had taken from his property and admonishing them for cutting down a white

oak tree. In the letter, Edwin informed the Wallaces that the bricks must be returned and

stated that “I am asking you again to please respect our property rights.” The Wallaces

responded by letter, explaining that they mistakenly believed the white oak had been on their

property and denying that Mary’s brother took the bricks. The Wallaces asked Edwin to

4 Mary testified that she and her husband paid the taxes on their 3.5 acres adjacent to the disputed property every year since they purchased it in 2006.

3 consider selling them the disputed property situated “a short distance beyond the barn, a

short distance beyond the clean outs with a straight line to the street giving us ownership of

the driveway.” Mary explained that at the time of the sale, they believed that the entire

driveway was included in the property they were buying; however, at closing they learned

that it was not and chose to go forward with the purchase anyway. Edwin did not agree to

sell them the disputed property and, according to Mary, never gave them permission to use

the 5.475 acres. The Wallaces claimed that over the twelve years before RR bought the

adjacent 16.5 acres, they maintained the disputed property by clearing brush; planting grass,

flowers, and a garden; and using an excavator to create and maintain hiking trails on the

property. The Wallaces stated that they had cookouts on the property, built a storage

structure to house equipment, and used the barn on the disputed property for storage of

equipment and wood. The Wallaces’ neighbor, Richard Mason, testified that he assumed

the disputed property was a “carve out” that belonged to the Wallaces and that they

maintained the disputed property the way it had been maintained by the Aldersons before

the sale. Mason stated that he had never discussed ownership of the property with the parties.

Tracy Alderson contradicted Mary’s recollection, describing the Wallaces’ use of the

disputed property as expressly permissive. Tracy explained that in 2005, at her father’s

behest, she readied the 3.5 acres and the house on it for sale. The Wallaces made the highest

bid, and Edwin accepted their offer. Immediately after the sale, during a phone call between

her, her father, and the Wallaces, Tracy gave the Wallaces permission to use the adjacent

5.475 acres for recreation, clear the underbrush in the wooded area to their liking, and use

4 the barn on the property for storage of their tractor. Tracy testified that the trails on the

disputed property had been there since she was a little girl and were created for horseback

riding. Tracy recalled that the disputed land had always been cleared for their family’s use,

but Mary had expressed that she wanted more of the underbrush removed, which she (Tracy)

consented to. During the next twelve years, Tracy routinely drove her Jeep around the

remaining 16.5 acres, including the disputed property, to check on it. Tracy testified that she

noticed that the trails were overgrown, and trees had fallen and had not been removed.

During one visit, she noticed that the Wallaces had built a gazebo on the land, which did

not bother her; however, when the Wallaces painted the barn to match the gazebo, Tracy

called them and ordered them to remove the paint immediately. She told Samuel Wallace

that “you can’t do that to things on my property or I’m going to limit your access.” Tracy

stated that she did not revoke permission to use the disputed property and barn. In 2018,

after the sale of the property to RR, Tracy decided to have the barn demolished because

painting had ruined it, it was “time to let that go,” and the expense of moving it was

prohibitive.

In early 2018, RR purchased the remaining 16.5 acres from Edwin Boyd Alderson

Properties, LLC. John Hill, co-owner of RR, testified at the trial, that after he bought the

16.5 acres, he walked around the property and saw overgrown brush with no signs of any

caretaking. RR hired Jeff Beavers to cut trees on his property. Beavers testified that he was

hired to clear RR’s land but ceased work after one day because Mary Wallace saw them on

the disputed property and threatened to shoot him and his son. Mary denied threatening to

5 shoot the Beavers and testified that she told them that she “felt like” shooting their

equipment because she was worried the heavy equipment would damage her utility lines. In

a text exchange, Mary asked if Hill was cutting trees, and John responded, “Yes I did. They

are my trees to cut.” Mary acknowledged Hill’s ownership, replying “Amen I have no

problem with the trees out just making sure it was you thank you.” Mary did not respond to

Hill’s follow-up question regarding her threatening Jeff Beavers and his son. Mary testified

that the texts were “a lie,” and she did not agree that the trees were Hill’s to cut.

Subsequently, Hill hired Andrew Simpson to cut the timber. Simpson flagged the

boundary lines, and when he returned to the property a few days later, he saw his flags in a

burn pile on the Wallaces’ property. Simpson also saw on the burn pile survey stakes that

had been on the boundary line when he tied his flags. Mary Wallace confirmed that she had

told the gardener to pull up the stakes so that he could mow. The El Dorado Police

Department and the Arkansas Department of Agriculture investigated the removal of the

survey stakes as a criminal matter.

The circuit court entered a detailed order finding, in relevant part, that the Wallaces

had an easement by implication regarding access through the driveway and sewer lines. The

court rejected the Wallaces’ claim of adverse possession and found that the Aldersons

granted them permission to the enter the disputed property, maintain it as it had been

maintained before the sale (removing brush and fallen trees), and use the barn for tools and

equipment storage. The court determined that Alderson did not revoke permission to use

6 the barn when the Wallaces painted it without her permission. The court quieted the title

in RR’s 16.5 acres. The Wallaces timely filed their notice of appeal.

II. Discussion

The Wallaces’ argument on appeal centers on whether their use of the disputed land

was permissive. First, they assert that Tracy had no authority to dictate how they could use

the land because she did not sell them their property, and she did not own the remaining

16.5 acres. Second, the Wallaces contend that their use of the land was not expressly

permitted and was, in fact, hostile. Third, they alternatively argue that if their use was

permissive, it ripened into adverse possession. The Wallaces’ arguments are not well taken.

We will not reverse findings of fact unless they are clearly erroneous. Further, whether

possession is adverse to the true owner is a question of fact. Strother v. Mitchell, 2011 Ark.

App. 224, at 17, 382 S.W.3d 741, 752. In reviewing a circuit court’s findings of fact, we give

due deference to the circuit court’s superior position to determine the credibility of the

witnesses and the weight to be accorded their testimony. Id.

Adverse possession is governed by both common and statutory law. To prove the

common-law elements of adverse possession, a claimant must show that he has been in

possession of the property continuously for more than seven years and that his possession

has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against

the true owner. Horton v. Taylor, 2012 Ark. App. 469, at 9, 422 S.W.3d 202, 209. It is

ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of

such a nature as one would exercise over his own property and would not exercise over the

7 land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id.

In 1995, the General Assembly added, as a requirement for proof of adverse possession, that

the claimant prove color of title and payment of taxes on the subject property or contiguous

property for seven years. See Ark. Code Ann. § 18-11-106 (Repl. 2015). Permissive use of

property can defeat an adverse-possession claim. Collier v. Gilmore, 2018 Ark. App. 549, at 7–

8, 562 S.W.3d 895, 899.

First, without citing to authority to support their argument, the Wallaces baldly claim

that Tracy was without authority to give permission to them to use the disputed property.

Appellate courts will not address arguments unless they are sufficiently developed and

include citation to authority. Cleary v. Sledge Props., Inc., 2010 Ark. App. 755, 379 S.W.3d

680; thus, we will not address this aspect of the Wallaces’ argument.

Second, the Wallaces contend that the circuit court erred when it found that the

Aldersons gave them express permission to use the disputed property and contend that their

use of the land was hostile. We disagree.

The court heard conflicting testimony regarding whether the Wallaces’ use of the

land was expressly permissive. At the trial, Mary testified that they had cut trees, bush-hogged,

and mowed the disputed 5.475 acres. She recounted planting a garden on the land and

hiking on the trails that they kept cleared. Mary stated that they built a gazebo on the

disputed property, painted the barn, and housed their equipment in the barn, and they had

done all of this without permission for over seven consecutive years. Conversely, Tracy

testified that she expressly gave the Wallaces permission to enjoy using the land for recreation

8 and told them they could use the barn on the property to store their tractor and other

equipment. Tracy recounted several incidents when the Wallaces were chastised for their

misuse of the property (cutting down the white oak tree, moving bricks, and painting the

barn) and were told to “please respect” the Aldersons’ property rights; however, Tracy

testified that neither she nor her father ever revoked the Wallaces’ permission to use the

land. Indeed, Tracy told the Wallaces that, though their painting of the barn was not

acceptable, she was not revoking their permission at that time.

Essentially, the Wallaces ask us to reweigh the evidence in their favor; however,

resolution of conflicting evidence and determination of witness credibility are within the

province of the fact-finder. Horton, 2012 Ark. App. 469, 422 S.W.3d 202. The circuit court

weighed the testimony and evidence and found Tracy’s testimony that the Wallaces’ use of

the land was expressly permissive was more credible. The circuit court did not clearly err in

determining that the Wallaces’ use of the disputed land was permissive.

Alternatively, the Wallaces argue that their permissive use of the disputed property

ripened into adverse possession. In support of their argument, the Wallaces cite Collier v.

Gilmore, 2018 Ark. App. 549, at 6, 562 S.W.3d 895, 898. In Collier, Gilmore believed he

owned the disputed tract of land for forty years, and during that time, he possessed and

farmed the disputed property; however, Gilmore was mistaken on where the relevant deed

placed the true boundary line. Gilmore had bought the land from the Holder family forty

years before, then mistakenly farmed soybeans and rice over their south and east property

lines. During the trial, Gilmore explained that Holder had told him that his purchase

9 included this strip of land “up to a then-existing fence[.]” Id. at 2, 562 S.W.3d at 897. In

1980, Gilmore levelled the land “up to the fence line, creating visible evidence of the fence’s

location that survived the later removal of old fence.” Id. at 4, 562 S.W.3d at 898. Eventually,

the fence was removed, but the mistaken boundary line was still clearly visible on the surface

of the land. The Colliers, the owners of the disputed property, asserted that Gilmore could

not have adversely possessed the land because his use of the land was not hostile, as both

Gilmore and Holder were mistaken about the true property line. This court favored the

adverse possessors’ conduct over their intent when determining whether their use of the land

was hostile and held that “the possession was ‘hostile’ because it was to an extent greater

than the deed anticipated; and his conduct was not subordinate to Holder’s property

interests or done with Holder’s permission.” Id. at 9, 562 S.W.3d at 900. The facts in Gilmore

are distinguishable from those in the instant case. Here, there is no mistake as to the

boundary line that resulted in decades-long hostile use of the later disputed property. Mary

testified that at the closing, she was aware that the disputed land and a section of the driveway

were not included in the sale. In the instant case, all parties knew exactly where the boundary

line was, and there was testimony that Tracy regularly inspected the disputed property

because she believed that it belonged to her family, and the use of the land was discussed

between the parties over the years.

The evidence supports the circuit court’s decision that the Wallaces’ use of the

disputed 5.475 acres was permissive, and permission was never revoked. This factual

determination depended heavily on the circuit court’s opportunity to observe the witnesses

10 and assess their credibility. We defer to the circuit court’s superior position to determine the

weight to be accorded the testimony. See Horton, supra. The circuit court’s finding that the

Wallaces failed to establish adverse possession was not clearly erroneous, and we affirm.

Affirmed.

BARRETT and HIXSON, JJ., agree.

McKissic & Associates, PLLC, by: Jackie B. Harris, for appellants.

Stone & Sawyer, PLLC, by: Phillip A. Stone, for appellee.