Schrader v. Schrader

101 S.W.3d 873, 81 Ark. App. 343, 2003 Ark. App. LEXIS 247
CourtCourt of Appeals of Arkansas
DecidedApril 2, 2003
DocketCA 02-677
StatusPublished
Cited by12 cases

This text of 101 S.W.3d 873 (Schrader v. Schrader) 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
Schrader v. Schrader, 101 S.W.3d 873, 81 Ark. App. 343, 2003 Ark. App. LEXIS 247 (Ark. Ct. App. 2003).

Opinion

Terry Crabtree, Judge.

This is a real-property case involving a dispute between two brothers. The Saline County Chancery Court found that the appellees, Bruce and Mary Schrader, had adversely possessed the disputed land, awarded them treble damages for destruction caused to their property by the appellant, and awarded them attorney’s fees. On appeal, appellant claims that the trial court erred (1) in ruling that appellees acquired the land in question via adverse possession, (2) in awarding appellees treble damages, and (3) in awarding appellees attorney’s fees. We affirm.

Although chancery cases are reviewed de novo on the record, the appellate court does not reverse unless it determines that the chancery court’s findings of fact were clearly erroneous. Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Material v. Stump, 69 Ark. App. 219, 10. S.W.3d 926 (2000). In reviewing a chancery court’s findings of fact, the appellate court gives due deference to the court’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

On May 29, 1998, the appellant, Ronald Schrader, filed a quiet-title action against property owners on four sides of his eighty-acre tract of land. Appellees own property that adjoins the west side of appellant’s land. Ronald Schrader and Bruce Schrader lived on the property, which is now owned by appellees, as children. In 1976, appellees bought the property from Ronald Schra-der and Bruce Schrader’s grandfather, who had owned it since 1928. In the 1930’s their grandfather installed a fence along the east side of his property. Ronald Schrader bought the land that borders the east side of his brother’s property in 1993 from a non-relative. After Ronald Schrader filed his quiet-tide action, he presented to the trial court a recent survey to prove that the sixty-year-old fence was not on the actual property line between his property and his brother’s property. Appellees counterclaimed that they adversely possessed the property in question. In support of their argument, they pointed to the fence erected over sixty years earlier, their maintenance of the disputed property, and the fact that they planted crops on the land.

On June 29, 2000, the trial court found that appellees had adversely possessed the disputed property and granted appellant an easement by necessity on a lane leading to his property. On August 6, 2001, appellees filed a petition against Ronald Schrader for damages to their fence and property and requested a permanent injunction restricting Ronald Schrader from entering their property. Appellees also complained that Ronald Schrader had violated the court’s previous order with regard to the boundary line. Upon motion by appellant, the matter was merged into the quiet-title action as it was not fully adjudicated at that time. On December 3, 2001, the trial court entered an order, which permanently enjoined appellant from entering appellees’ property.

On March 5, 2002, the trial court awarded appellees treble damages for appellant’s deliberate destruction of their plants, crops, and fence materials. The trial court also awarded appellees attorney’s fees and costs due to appellant’s disregard of the court’s previous determination as to the correct location of the boundary line between the two properties and the violation of the permanent injunction entered by the court on December 3, 2001.

At trial, appellant requested the trial court to state for the record the reason it denied admission of certain exhibits offered by appellant. The court stated:

At the conclusion of the testimony approximately two years ago, I went out to the property with [the parties’ attorneys]. I walked the property. I thought it was very, very clear regardless of where the actual survey lines may be, that where the actual lines, whether you call it title by acquiescence or adverse possession, were, considering the pond, considering how one part of the disputed property was mowed and well-kept and the other was basically undergrowth. There was a ridge around the pond. There was then a creek on the other side, as I remember. And that’s why. And it’s been two years, and I think it’s clear as it can be where the property line should be, in fact, as opposed to perhaps wherever the survey line is.

After both parties rested, appellant moved for a directed verdict on the issues of adverse possession based on (1) the absence of proof of hostile intention and (2) the requirement of Ark. Code Ann. §18-11-106 (Supp. 1997) that a party claiming adverse possession must prove payment of taxes on the property in issue or on contiguous property. The trial court took the motion under advisement.

For appellant’s first point on appeal, he contends that the trial court erred in finding that appellees adversely possessed the land in dispute because appellees failed to present proof of payment of ad valorem taxes on the property. The Arkansas General Assembly amended the statutory requirements for proof of adverse possession in Act 776 of 1995, now codified at Ark. Code Ann. § 18-11-106. In order for a claimant to establish tide by actual adverse possession under the new law, the claimant must prove color of title and payment of taxes in addition to all of the elements necessary under existing adverse possession law in the state of Arkansas. Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999). Arkansas Code Annotated § 18-11-106 (Supp. 1999) states:

(a) To establish adverse possession of real property, the person, and those under whom the person claims, must have actual or constructive possession of the property being claimed and have either:
(1)(A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property.
(B) For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or
(2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of tide.
(b) The requirements of this section are in addition to all other requirements for establishing adverse possession.

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Bluebook (online)
101 S.W.3d 873, 81 Ark. App. 343, 2003 Ark. App. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrader-v-schrader-arkctapp-2003.