Case of the Day – Tuesday, December 27, 2016



We often wish we recalled more from our real property law classes taken our first year of law school, much longer ago than we’re willing to admit. But we still recall our amazement when we first heard about the doctrine of adverse possession. It seemed at once shocking and exciting to us that an enterprising trespasser could move onto someone else’s land, and – if they squatted long enough – graduate from trespasser to owner for free. Is this a great country or what?

We shared beers with classmates and argued about which fact patterns would let the Freddy Freeloader family get title from Albert Absentee, just because the Freeloaders squatted on the property. In fact, we can still recall the property-law mantra: open, notorious, exclusive, continuous and hostile. AdvPosChklst040407That is, for whatever period the statute requires, commonly 21 years (but it can vary by state), the squatter must take possession of the land openly and notoriously. The possession must be continuous and unshared with anyone who actually has the right to the land. Finally, it must be adverse to the landowner’s interest. It seemed simple to us. What we didn’t know as law students but we know now is that judges generally don’t like giving away someone else’s property to a party claiming by adverse possession, and as a result, meeting the adverse possession test isn’t always that easy to do.

But it can happen. Today’s Arkansas case is a prosaic illustration of how this is so, and how courts sometimes shape the adverse possession tests to do justice. The Boyds and Robertses were friendly rural neighbors. For decades, both families had always thought that the old, run-down fence dividing their properties was the boundary. The Robertses and their predecessors had used all of the land up to the fence, planting grass, grazing cattle, maintaining the fence, clearing brush – even paying the taxes – for over 20 years. The Boyds accepted things the way they were. After all, everyone knew the fence was the boundary.

The time came when the Boyds had a survey done and discovered that everyone was wrong. The fence wasn’t the boundary. Instead, the Boyds owned a whole lot more property than they ever thought they did. Even after discovering that, they didn’t push the Robertses back, but instead let the fence stand. It was a good fence, and made for good neighbors.

proptug040407But finally, the Boyds made plans to sell their place to Winningham, someone who wasn’t so friendly. Winningham and the Boyds told the Robertses to move back to the property line, and Wimmingham tore down the old, overgrown fence. Litigation (not hilarity) ensued.

Generally, if a squatter “encloses” the land with a fence, the act of enclosure is enough to meet the “open and notorious” requirement for adverse possession. Here, Boyd’s buyer strove mightily to convince the court that the Robertses had never really possessed the disputed land, but the Court was not impressed. The old fence didn’t really “enclose” anything, but it made an “open and notorious” claim, even if the parties believed all along that the Robertses’ possession was righteous. It seemed hardest for the Court to swallow the fact that the Robertses had paid the taxes on the disputed land. Somehow, it just didn’t seem fair to pretend the Boyds had controlled it all along.

It might not have been a “good fence” … but it was good enough.

Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (Ark.App. 2007). The Boyds purchased their property in 1981. At that time, a barbed-wire fence ran between their property and the property to the east, which was purchased by the Robertses in 1990. The Boyds had a survey performed in 2002 that revealed the true property line ran from 75 to 96 feet on the Robertses’ side of the barbed-wire fence. Pursuant to the survey, new boundary lines were marked and staked.

AdvPosCartoon040407During the summer of 2004, after seeing the markers, Mr. Roberts contacted Mr. Boyd and was informed that the Boyds were claiming the property according to the new markers. Mr. Roberts was further informed of the Boyd’s intention to sell the property to Winningham. The disputed area was used as a pasture and a hay meadow. Boyd had known for 22 years that the true line was east of the fence but did not know the true line’s exact position because of the drainage ditch. Instead, he had just gone by the fence.

The trial court found the Robertes to have possessed the disputed property by maintaining the fence, mowing as close as possible to the fence, and running horses on the disputed area. The Boyds and Winningham did not dispute that the Robertses had color of title and paid the taxes on their property or that the Robertses’ activities lasted more than seven years. The trial court found that the Robertses intended to adversely possess the property because they believed that they owned the property. It held that the title should go to the Robertses, and it even awarded them $511 for destruction of the fence. Winningham appealed.

Held: The award of the disputed property to the Robertses was upheld. Winningham argued that the disputed area was not enclosed because the fence surrounding it was degraded prior to its removal by Winningham. While the construction of a fence is not necessary to constitute adverse possession, fencing the disputed area is an act of ownership evidencing adverse possession.

We wish this shirt had been around when we were in law school - it would have made the doctrine of adverse possession much more real and understandable for us ...

We wish this shirt had been around when we were in law school – it would have made the doctrine of adverse possession much more real and understandable for us …

The fact that the fence may have been degraded did not necessarily mean that the property was no longer enclosed. The question was properly whether the enclosure, like other acts of possession and claims of ownership, was sufficient to “put the true owner upon notice that his land was held under an adverse claim of ownership.” Here, the Court said, the fence was visible enough so that all of the parties knew it existed when they purchased their respective properties. Furthermore, the parties undisputedly treated the fence as the boundary between their properties. On these facts, the Court said the property was sufficiently enclosed so as to provide notice that the Robertses were claiming the land up to the fence.

Winningham also argued that the Robertses did not actually possess the entire disputed area because a ditch prevented them from mowing all the way to the fence. But the Court found that because the disputed tract was enclosed, the Robertses’ possession of any part thereof is constructive possession of the entire enclosure. Winningham maintained that the Robertses’ possession was not “open and notorious.” The Court held that actual possession of real estate was notice to the world of claim or interest of one in possession, regardless of whether such claimant had on record a written instrument creating in him an interest or title. Notice of adverse possession could be inferred from facts and circumstances, such as grazing livestock, erection of a fence, or improving the land. Here, the Robertses’ activities were visible to all and were the type that would normally be done by one claiming ownership.

Title to the disputed area was transferred by the Court to the Roberts family.

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