Wilson v. Hunter

28 S.W. 419, 59 Ark. 626, 1894 Ark. LEXIS 96

• Court: Supreme Court of Arkansas
• Decided: November 24, 1894
• Status: Published

Opinion

Battle, J.

This is an action-of ejectment for the recovery of a small part of lot 11 in block 22, in the town of Eorrest City, the width of which is 20 inches. The defendant owns the adjoining lot. One of the grantors, nnder whom she holds it, built a house on it, and in building extended it over on lot 11 about 20 inches. There is no evidence that he, the builder of the house, or any ■one claiming under him, ever held any written evidence of title to lot 11 or any part of it. Plaintiff says he built the house on the 20 inches through mistake, and with no intention of claiming or holding it. The defendant, on the other hand, says that she is entitled to, and does hold, it by virtue of adverse possession thereof held by her and her grantors for the statutory period. The documentary evidence read at the trial shows that the title was in the plaintiff and his grantors. Evidence ■was also adduced which tended to prove the claim of the defendant by adverse possession. The court instructed the jury that if they found from the evidence that the defendant, and the grantors under whom she claims, held ■open, notorious and adverse possession of the land in controversy for seven years before the commencement of this action, the plaintiff could not recover, and to find for the defendant. The jury found for the defendant, and the plaintiff appealed.

The only question of law in the case is', what possession was necessary to enable the appellee to hold the land in controversy? We shall not, in answer to this ■question, attempt to review the numerous cases in which courts have decided similar questions, but shall state our own views, and cite some of the cases sustaining them.

Where land belonging to one of two coterminous proprietors is inclosed or built upon by the other, the intention with which the possession was taken and held is important in determining what rights, if any, were thereby acquired. No right or title can be gained against the owner by mere possession. To bar an action for the recovery of the land so held the possession must be actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely and “in derogation of,” and not in “ conformity with,” the rights of the true owner, and must continue for the full period prescribed by the statute of limitations. There must be an intention to claim title. If one of two adjacent owners inclose or build upon his neighbor’s land, “through mere inadvertence or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area,” as said by the court in Alexander v. Wheeler, 69 Ala. 340, “ but intending to claim adversely only to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner.” But it would be, if he inclosed, or built upon and held, the land under the belief and'" claim that it .was his own, even though the claim of title was the result of a mistake as to the boundaries of his own land. “ In such-a case,” as said in Alexander v. Wheeler 69 Ala. supra, “ there is a clear intention to claim ” the land occupied or inclosed, “and the possession does not originate in an admitted possibility of mistake.” Brown v. Cockerell, 33 Ala. 45; Alexander v. Wheeler, 69 Ala. 340; Abbott v. Abbott, 51 Me. 584; Hitchings v. Morrison, 72 Me. 333; Ricker v. Hibbard, 73 Me. 105; Ayers v. Reidel, (Wis.) 54 N. W. 588; Hamilton v. West, 63 Mo. 93; Walbrunn v. Ballen, 68 Mo. 164; Bunce v. Bidwell, 43 Mich. 546.

In the case at bar, there was evidence adduced at the trial which tended to show an intention to hold the land in controversy adversely, and that the possession of the appellee was in other respects sufficient to bar the appellant from recovering the land.

Judgment affirmed.