832 [241 F. E. MCCRAY ET AL v. LYLE B. MARSHALL ET US 5-4063 410 S. W. 2d 595 Opinion delivered January 23, 1967 1. EQUITY-CLEAN HANDS DOCTRINE-WEIGHT & SUFFICIENCY OF EvIDENCE.—Appallants' assertion that appellees were barred by the clean hands doctrine not sustained by the record. 2. ADVERSE POSSESSION-HOSTILE CHARACTER OF POSSESION-PRESUMPTION & BURDEN OF PnooF.—Testimony of subcontractor for an enterprise did not affect appellees notoriety of possession where record failed to show the enterprise's connection with either party and chancellor's finding in favor of appellees before the enterprise entered the premises was sustaind by the evidence_ 3. ADVERSE POSSESSION-POSSESSION BY MISTAKE-WEIGHT & SUFFICIENCY OF EvIDENCE.—Appellants' allegation that appellees were holding the land by mistake held without merit where appellees were definitely claiming they owned the land and preponderance of the evidence showed the land was considered part of the premises owned by appellees and their predecessors in title for more than 30 years and enclosed by a fence enclosed their farm. _ _= whic h _ al _ so 4. ADVERSE POSSESSION-TRIAL-PHOTOGRAPHS, ADMISSIBILITY OF.- U. S. Department of Agriculture aerial photograph was properly admitted in evidence for purpose of showing location of appellees' home and highway where it was ascertained prior to introduction that it accurately showed a picture of the lands involved. Appeal from Saline Chancery Court, C. M. Carden, Chancellor, affirmed. E. L. Schieffler, for appellant. Hull, Purcell, Boswell & Tucker, for appellee. CONLEY BYRD, Justice. Involved in this appeal is the title to 2.4 acres of land described as "all of the E1/2 of NW-1,4 NE14 Sec. 3, T-2-S, R-15-W, lying West of Old Hwy. No. 70." The trial court quieted title to the 2.4 aeres in appellees, Mr. and Mrs. Lyle B. Marshall, as the owners by adverse posession. For reversal the appellants, who are the heirs at law of Mr. and Mrs. W. N. McCray and are the record title holders, relied upon the following points :
ARK.] MCCRAY V. MARSHALL 833 1. Appellees did not come into equity with Clean hands. 2. The record shows that appellees were not claiming hostile to the whole world because they permitted a house to be built on the area by Ouletta Enterprises without objection. 3. Appellees were holding same by mistake. 4. The trial court erred in admitting a photograph. The record shows that the appellants' decedents acquired title to the lands in question by deeds in 1914 and 1918. Mr. and Mrs. W . N. McCray died while appellants w Pr ia in their teens, over forty-five years ago. Appellants testified that they visited the lands from time to time and that same had never been fenced. Mr. Mar-shall testified that when he purchased his 180-acre farm in 1950 the lands in question were fenced in with his farm, that he thought the lands were part of the land which he purchased, and that he had claimed all the way to the highway since he had taken possession of his farm. Neighbors living in thp area whn had been familiar with the lands for more than thirty years, testified that the strip of land in question had been fenced with the farm purchased by Mr. Marshall and that the lands had always been considered a part of the farm owned by Mr. Marshall. This particular controversy developed in 1962 when a survey was made for a county road to the river run-: ning west from Old Highway No. 70, now Highway No. 5. The surveyor at that time informed Mr. Marshall that he had some "lost land" between his and the highway e.. the land was not on the tax books. Thereafter Mr. Marshall had it placed on the tax books for the tax year of 1962 and subsequently offered to give appellants $300 for a quitclaim deed to clear up his record title. It was Mr. Marshall's thinking that it would be cheaper to pay $300 for a quitclaim deed than it would he to bring an netion to quiet his title,
834 MuCnAy V. MARSHALL 1_241 Some time before this action was filed, Ouletta Enterprises, Inc. began construction of a house on a portion of the 2.4 acres which had been platted as Lot 1, Bel Monte Estates Subdivision. However, Ouletta Enter-prices, Inc. was not made a party to the litigation. Appellants ' argument that the Marshals are barred by the Clean Hands Doctrine is apparently based upon certain statements allegedly made by Mr. Marshall on the telephone when he tried to purchase the outstanding record title for $300, with reference to tax payments since 1950 ; and upon the further premise that he knowingly permitted Ouletta Enterprises to build a house on the premises without objection. There is nothing in the record to show that the appellants were misled in any way by the alleged statements, nor is there anything to show how appellants are injured by Mr. Marshall's alleged conduct _-toward—OulettaEnterprises_Conseguent= ly we hold this contention without merit. The second point urged, that the Marshalls were not making a hostile claim to the lands against the whole world, is based upon the testimony of a subcontractor that he built a brick house on the premises for Ouletta Enterprises within view of the Marshall home without objection from the Marshalls. Here again the record fails to show the connection of Ouletta Enterprises with either party, and since there was ample evidence to sustain the chancellor's finding of adverse possession in favor of Mr. Marshall before Ouletta Enterprises entered the premises, we hold this contention to be without merit. Nor can we find any merit in the allegation that the Marshalls were holding the land by mistake. When the evidence is viewed in its entirety, the clear preponderance thereof shows that it was considered part of premises owned by the Marshalls and their predecessors for more than thirty years ; that it had been enclosed by a fence which also enclosed the farm owned by the Mar-
ARK.] 825 shalls and their predecessors ; and that the Marshalls were definitely claiming that they owned the lands. The photograph of which appellants complain is a U. S. Department of Agriculture conservation plan aerial photograph on a scale of eight inches to a mile Before the chancellor permitted it to be introduced it was ascertained that it accurately showed a picture of the lands involved, the location of the Marshall home arid the location of the highway about which many witnesses testified. We think it was properly introduced for these purposes. Affirmed.
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