Daily Development for Friday, September 19, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; PERMISSION: Adverse possessor’s use is “hostile” even if it permits tenants of true owner to park on its land.

England v. Eaton, ___ S.W.3d ___ , 2008 Westlaw  1734935 (Ark. Ct. App. 4/18/08).

In 1990, England purchased a tract of  land and began using a building located on the tract in dispute that was adjacent to England's property and owned by Eaton. England maintained and improved the disputed tract, used the building for his business, ran cattle on the western part of the disputed tract, made improvements to a road running through the western part of the disputed tract to the building, and constructed a gravel parking lot located on the western part of the property, and in fact fenced some of the tract in order to control the cattle.  The fence lasted nine years.  The adverse possession period in Arkansas is seven years.

In 2006, England conducted a survey and realized the disputed tract was owned by Eaton.  Soon thereafter, England brought an adverse possession action. While Eaton conceded she was unaware that a building existed on the east side of her property, she attempted to distinguish England's adverse use of the two portions of the disputed tract by arguing that her tenants used the first 30 feet of the road constructed by England.

The evidence also showed that England gave some of  Eaton's tenants, a motorcycle club,  permission to park in the gravel lot, and that he acknowledged Eaton's ownership of the lot. Thus, Eaton argued, England’s use was not “exclusive.” England had permitted the club to use his parking lot periodically when they conducted rallies - about once a year.  After 2006, but before filing suit, England had commented to one of the tenants that they were permitted to use the land “because [Eaton] owns in anyway.”  Eaton herself only visited the land three times in twenty years - a true absentee landowner.

The trial court after actually visiting the property twice to get a sense of the physical layout, resolved these issues by (1) excluding the first 30 feet of the road from the part England adversely possessed, and (2) splitting the property into east and west portions, finding that England proved he had adversely possessed the eastern portion of the strip, but not the western portion. On appeal, England conceded Eaton's use of the 30-foot strip, but argued that arbitrarily splitting the remainder of the property constituted clear error.

The Arkansas Court of Appeals reversed, by a 3-2 vote.  It began by reciting the established elements of adverse possession: possession of the disputed property must be continuous for more than seven years and must be visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. Because Eaton's tenants used the driveway on the 30-foot strip to access Eaton's property, the court agreed with the circuit court's resolution as to that strip. It distinguished, however,  Eaton's tenants' use of the western portion beyond the 30-foot strip. In Anderson v. Holliday, 986 S.W.2d 116 (Ark. Ct. App. 1999), the court held that permissive use by others does not destroy the exclusiveness of an adverse claimant's possession. While Anderson involved permissive use by the public, the court here held that this principle governs as to those holding record title as well.

The court noted that nothing in the record indicated Eaton or her tenants ever attempted to oust England or assert rights in the property. In addition, although England acknowledged Eaton's ownership after he obtained a survey of the property, this did not outweigh the clear preponderance of the evidence showing England's assertion of exclusive dominion over the property for 16 years. Finally, the court held that dividing the property in half had no adequate basis under the facts of the case, and therefore the arbitrary resolution of the dispute constituted clear error. England's use of the property (including the western portion) was sufficiently exclusive, and he became the owner of the property as a result.

Two judges dissented. They reasoned that "[n]either this case, nor any other, supports the premise that an adverse possessor has any legal or equitable authority to grant permission to a record owner to use the property titled in his or her name," and given the court's standard of review (clear error), the trial court's decision should be affirmed. The dissent discussed the facts in more detail, focusing on Eaton's use of the rental house and warehouse near the road on her property, the distinction between England's use of the eastern and western portions of Eaton's property, and England's admissions that he did not own the property and that his use was not exclusive. The dissent emphasized that a court conducting an appellate review of an equity matter should not reverse unless it determines that the trier of fact's findings were clearly erroneous. The dissent also noted the importance of the trial court's physical inspection of the disputed tract (twice) due to the complexities
of the facts, and believed the majority should not have ignored the trial court's first-hand knowledge of the property. It concluded that the trial court's findings were far from clearly erroneous, and the line dividing the property should be upheld.

Comment 1: There have been other cases where the true owner’s use of the adversely possessed land has been with the clear permission of the adverse possessor.  They have reached the same result. But this case seems more equivocal than those.  The dissenters would hold that permitting the true owner on the land always is fatal to the hostility requirement.  The majority maintains that where the true owner’s actions are not possessory in character, they can be dismissed as permitted by the adverse possessor and not inconsistent with hostility.  The editor is somewhere in between.  Although minor, occasional intrusions by the true owner are unlikely to disturb hostility any more than intrusions by strangers, a significant, periodic occupation, such as that involved here, would appear to derive out of the continued possession of the adjacent parcel actually possessed by the true owner, and would constitute a break in the continuity, exclusivity and hostility of the adverse possession
activity.  There are, it is true, cases in which true owners have intruded openly on the adversely possessed land for some time, but usually in such cases the true owners are acquiescing in the permission the adverse possessor gives, basically conceding the adverse possessor’s claim.   That didn’t occur here.  

Comment 2:  But there is some question here of the adverse possessor’s hostility.  First, there is the statement that “it’s [Eaton’s] land anyway.”  The court viewed this as “some evidence” of a lack of hostility, but noted that it happened after adverse possession would have run anyway and after the survey.  The editor isn’t convinced.   There is not much indication that the survey told England anything that he didn’t know already, and the statement suggests that England was simply relying on Easton’s implied permission in using the unused property as a parking lot.  Of course, the editor can’t dispute that the exclusive use of the buildings gave England adverse possession of those portions of Eaton’s land, but the rest of the possession was far more equivocal, and more consistent with a simple “borrowing” of Eaton’s land while Eaton didn’t need it.  Also, the majority doesn’t make enough of Eaton’s claim that she hired land maintenance people to mow the land.  The editor would h
ave left the trial court’s determination undisturbed, as the dissenters argued.

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