Strother v. Mitchell

382 S.W.3d 741, 2011 Ark. App. 224, 2011 Ark. App. LEXIS 222
Court of Appeals of Arkansas·Decided March 16, 2011·No. No. CA 10-920·Published·Cited by 16 cases

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.

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

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