Strother v. Mitchell

382 S.W.3d 741, 2011 Ark. App. 224, 2011 Ark. App. LEXIS 222
CourtCourt of Appeals of Arkansas
DecidedMarch 16, 2011
DocketNo. CA 10-920
StatusPublished
Cited by16 cases

This text of 382 S.W.3d 741 (Strother v. Mitchell) 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
Strother v. Mitchell, 382 S.W.3d 741, 2011 Ark. App. 224, 2011 Ark. App. LEXIS 222 (Ark. Ct. App. 2011).

Opinion

WAYMOND M. BROWN, Judge.

|,This case involves a 1.76-acre tract of land located in Independence County, Arkansas. Appellant Jeffery Strother appeals the trial court’s decision finding that the contested land belonged to appellee David Mitchell. Strother argues on appeal that the trial court erred in finding that he had not proven his claims of boundary by acquiescence or adverse possession. He further contends that the trial court erred in granting Mitchell damages and in granting Mitchell’s motion for Rule 11 sanctions. We find no error and affirm.

David Mitchell and his wife, Laura, received a quitclaim deed for their property on April 9, 2007. David had a survey performed on October 6, 2008, and following that survey, he began to erect a new fence along the property line. Jeffery Strother saw the new construction and tore it down. He also removed survey ribbons on two separate occasions.

12Strother filed a petition to quiet title to the disputed property on March 2, 2009. In the petition, he alleged ownership in the property under the theories of boundary by acquiescence and adverse possession. Mitchell filed a motion to dismiss on March 19, 2009, alleging that Strother failed to include indispensable parties in his complaint. Strother filed a response on March 26, 2009. On April 6, 2009, Strother filed an amended petition including the necessary parties.1 In the petition, Strother alleged that Mitchell was attempting to move the boundary fence “some Thirty feet from the agreed fence and established boundary.” Mitchell filed an answer on April 21, 2009. He filed an amended answer and counterclaim on September 10, 2009.2 In his counterclaim, Mitchell sought damages in the amount of $2,925 (the amount it cost him to build a fence on his property line, part of which was destroyed by Strother). Mitchell also sought treble damages for a total amount of $8,775 as well as other costs and relief to which he might be entitled. An answer was filed on September 18, 2009, denying Mitchell’s affirmative defense.

The hearing took place on April 1, 2010. Jerry Strother testified that he and his wife had lived on the property south of Mitchell’s property for over forty-five years. He said that the property had been in his family for a number of years before that. According to Jerry, he and his father ran cattle on their property. Jerry stated that he was familiar with the Creech ^property.3 He testified that Mr. Creech owned 160 acres of property that was “just all woods.” According to Jerry, Mr. Creech started clearing his land and eventually cleared most of it. Jerry stated that when he received title to his property in June 1960, there was no established fence between his property and the Creeches’ property. He said that Mr. Creech constructed the fence sometime after 1960, and the fence “ran all the way across the property from the West side to the East side.” Jerry stated that he helped to maintain the fence once it was constructed. He further testified that the Creeches had quite a few cattle and a lot of goats. Jerry said that he posted signs on the fence for over thirty years to keep others from coming onto the property to hunt. He stated that the Creeches never came onto his side of the fence except for one time when one of Mr. Creech’s bulls got loose. In regard to the maintenance of the fence, he stated

Both of us maintained the fence if something happened to it. There wasn’t a whole lot [that] happened to it. It was a good fence and you hardly ever had anything unless a tree or something would fall on it or a limb or something like that. But I worked on the fence and he did to [o]. Which ever one of us noticed it was down, why, they fixed it.

Jerry testified that he deeded the property to his children. The property was later deeded to appellant and his ex-wife.4

On cross-examination, Jerry stated that the disputed property had never been cleared. He testified that he ran cattle on the disputed property; that before he was diagnosed with |4Lupus, he went to the disputed strip anytime he wanted to; that he cut wood up there; that he posted signs on the fence for over thirty years; that when purple paint came out, he painted the posts or a nearby tree; and that he helped with work on the fence as recently as ten to fifteen years ago. He also stated that he did not help pay for or build the fence and that he had never bush-hogged, fertilized, or mowed the contested strip.

Danny Robertson testified that he was a professional land-surveyor. He stated that he surveyed a piece of property for Strother. According to Robertson, the fence was extremely old, dating back at least thirty years. On cross-examination, he stated that he thought he saw some old stumps on the disputed strip, but he could not remember. However, he testified that he did not see any cow “patties” or any other signs of use on the property except for evidence that someone had been in there taking down a fence.

Elois Strother testified that she had been married to Jerry for over fifty-five years. She stated that she and her husband filed a lawsuit against the Sheldons in the '80s, but they never went to court. According to Elois, they did not get a court date or anything, they could not even talk to a lawyer. She said that the Shel-dons stopped building the road and did not “come back on the place.” She stated that the Creeches never said anything to them about the lawsuit.

Strother testified that he had been living on the property close to the disputed strip since 1997; however, he said that he had lived somewhere on the property his whole life. According to Strother, as a child, he rode his three-wheeler and motorcycles on the strip. He stated that he cut wood, fixed the fence, ran cattle, and even rented out the disputed strip of | filand. He testified that the renters also ran cattle to the fence. Strother said that he has been cutting trees from the 1.76-acre strip for over twenty years. He acknowledged that the land is rocky and is not good for a “whole lot.” Strother testified, “I [have] never had discussions with the Creech[e]s about them being on my side of the fence or me being on their side of the fence. It was understood as the boundary. We marked it as the boundary. And we treated it as the boundary.” He stated that he took a picture of the fence in January 2009, which reflected purple paint placed on the fence by Mitchell. Strother said that there are at least twenty years of purple paint on the fence. He stated that he had never seen the Creeches, the Fosters, or the Mitchells on his side of the fence until recently. According to Strother, he recently saw Mitchell on the south side of the fence. Strother said that the fence had been up so long that trees had grown into it. He stated that he had made repairs to the fence and that he would “try to go out every month or so.” Strother testified that he had not run cattle “up there in the last few years or so.” He stated that he and his sons hunt, play paint ball, and ride four-wheelers on the property, when the ticks are not so bad. He testified that he has never fertilized or bush-hogged the strip. According to him, he moved “up in the middle of the woods to be left alone.” Strother stated that he liked the area “grown up.” Strother testified that the Creeches had goats and cattle on their property and that he did not recall those goats and cattle coming across the fence.

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Bluebook (online)
382 S.W.3d 741, 2011 Ark. App. 224, 2011 Ark. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strother-v-mitchell-arkctapp-2011.