ARK.] WINTER V. RAGAN. 709
WINTER V. RAGAN. 4-4283
Opinion delivered May 11, 1936. ADVERSE POSSESSION.—Where appellant and predecessor had been in actual adverse possession for more than 30 years, her possession was not broken by her participation in a survey of the lands, since title had vested in her by limitation long prior to the survey, and in an ejectment suit to recover the possession from such owner verdict should be instructed for defendant. Appeal from Baxter Circuit Court ; John L. Bledsoe, Judge ; reversed. Nat T. Dyer, for appellant. Northcutt & Northcutt, for appellee. JOHNSON, C. J. This ejectment action was instituted by appellee, 'Mollie E. Ragan, against appellant, Kate Winters, in the -1=t xter o ircuit r ourt to recover the following tract of land located in Mountain Home, Bax-ter County, Arkansas, namely : Beginning at the NAV corner of the SW 1/ 4 of NE1/ 4 , section 9, township 19, north range 13 west run south 131/2 rods for a beginning point, run thence south 15 feet, thence east 16 rods, thence north 15 feet, thence west 16 rods, to place•of beginning. The following map clarifies the issues and identifies the small tract of land in controversy, same being-ideal tified on the map as "disputed strip."
710 WINTER V. .RAGAN. [192 Paul. • Mtn. Home Colleke 'Property. Cross, — Roads 4.• • 15 rcids enclosure g G. L. Arnett, ,1-1: L.' r Winter Clayton Liv , ingston or Mtn. garden 0 house Home College Tract. disputed strip -cs D garage 0 house Ragan Tract ••• 48 rods Paul Conlep Tract, fiavis Appellant answered ap p . ellee'S 13),T- denying . , the . , material allegations . thereof and affirmatively pleaded„actual adverse possession of the disputed :tract of land for , the past forty years. •• Upon trial to a JUrY a• verdict .. and' consequent judg-nient . was entered in favor of. appellee .•and against appellant from! which this appeal ComeS.r' ' The Vie-W • eritertained''b the court -rende'r•s . ' it 'tn.: ne • Cessary -to diSCuss -or decide brt one is'slie jsdñtediy i briefs,' namely: . adverse "poS'geS§ion.. „ The undisputed testimony adduced upon' the trial reflects. that , more than forfy years. ago: one : George W. FoSter .purchased. the tract of :land identified upon the map as "Winter Tract ! ' :from one Finley a!nd
ARIc•.] ,WINTER V. RAGAN. 711 diately.,thereafter inclosed,.: with a fence., this dismited strip of dand..,. Foster ,remained in the . actual possession • of :thdisputed tract until 1918: . When. he 'sold, and conveyed , the whole. tract ;to Mrs. Winter, the appellant . here. Mrs. • Winter . has, ' since. her :purchase, kept the disputed tract inclosed 'and in actual 'cultivation . up tO the bringing. of. this. ,suit : im 19,33. ....:: . ,* •• • , In 1917, one Aylor, purchased .the. tract :Of •land lying immediately , .sonth . .of fhe . Winter tract : and subsequently: Conveyed : the: same th,Mrs. Ragan, the appellee here., . Thisi tract is identified on.the map as the :".Ragan -tract.." . 1 „, , -1-.. : . , . .• . , . 4rs.,Ragan's,,grantor, Aylor, : was :a witness in. the case and. testified that, in 1902 or • 1903 the .disputed.tract was .within Foster's inclosure .and. so remained until hiS purchase Of the. south:adjoining land in 1917. Mrs...R47 gan admitted . at the triab that : the• disputed•:tract : was within , the . Foster:Winter : inclosure when . she purchased fro „ m Ay , lor in 1929, .and. has reinained . so inclosed since her phrchase.*, • • Under the. above-narrated undispute,d . facts the tract Of land in , controyersy becaine :. a . part: and parcel: : Of the "Whiter Tract" by . actual adverse possession :long prior to Aylor's purchase in 1917. Miller v. Fitzgerald, 169 Ark. 376, 275 S. W. 698, and cases there cited. Appellee insists, however, that appellant's continuity of possession was broken in 1924 by the incidents hereinafter referred .to, or , else that appellant's possession of the disputed tract 'was permissive. To establish these contention i s . appellee , adduced testimony to the effect that in 124 -a-§iiirViVT ' Of the 'COteiMiliOus owners was made Which established , the dividing line betWeen appeI-lant'S': and apPellee's . ' tracts: , of laild , -a§ the north line Of : the disptited traeb and that , apPellant's: husband was apprised.thereof and acquiesced therein: The, testimony adduced in this behalf falls far• short:of showing permis-. sive. user by' appellant of the ' , disputed tract . Or •that her Continnity of a:di-Lai:adverse po§sesSion was broken there-hy. 'At the' tithe thiS s . urv67 e'ffeCied in 1924; 'appellant .and -her 'immediate grantors, had :been iriJhe actual adverse possession of the disputed.tract: for 'moreAhan
712 [192 thirty -years, therefore title had vested by limitation long prior to the survey. Mustain v.• Smith, 187 -Ark. 1163, 63 S. W. (2d) 537; Smith v. Leech, 184 Ark. 421, 42 S. W. (2d) 545; Stroud v. Snow, 186 Ark. 550, 54 S. W. (2d) 693. Moreover the title to the Winter's tract was in Mrs.• Winter and not her husband, and no •effort was made to show that Mr. Winter was acting as •agent of his 'wife •in the • premises. • If the law of adverse possession is to have any stability in this State it should be applied to the facts and circumstances of this case. Mrs. Winter and her prede cessor in title have had this disputed strip of land inclosed and in actual adverse use for more than 40 years prior to the filing of this Suit and we know of no rule of law Or in equity which admits appellee's position of divesting title Ohce acquired. McDonald v. Roberts, 177 • Ark. '781, 9 S; W: (2d) 80. It folloWs from what we have said that the trial court erred in refusing to direct the jurY to return a verdict in favor of appellant as requested• by her. The cause of action seems to have been fully developed ; therefore, if will be reversed with directiOns to dismiss the complaint. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.