SW Legal studies in Business

Sixty Year Old Fence Did Not Establish Land Ownership
Description Appeals court held that when a survey showed that a sixty year old fence line placed land on the wrong side of the property line, that the survey line would control the boundary because the fence had been built originally by agreement, so there was no change in ownership by adverse possession.
Topic Real and Personal Property
Key Words Boundary Dispute; Fence; Adverse Possession; Survey
C A S E   S U M M A R Y
Facts McWilliams bought some land in 1965. Land to the east belonged to the Gangluffs. In 1995 Gangluff conveyed the land, which resulted the property line being questioned. McWilliams claimed the line was a fence built in 1941. A survey in 1998 paid for by Gangluff showed the line to be further sw legal, placing six acres on the McWilliam's side of the fence in possession of Gangluff. He built a new fence in accord with the survey. McWilliams sued for ejectment, contending the six acres was his by adverse possession if the fence boundary was not correct. Gangluff sued for quiet title. The trial court held for Gangluff; McWilliams appealed.
Decision

Affirmed. Gangluff never gave up title to the six acres that was used by McWilliams for pasture. In 1941 the Gangluffs had allowed the owner before McWilliams to use the six acres. Since the use of the land was approved, there was no adverse possession, since that requires hostile possession. The survey revealed the correct boundaries as of 1941. It was for the jury to determine the history of the use of the land to decide if the use between 1941 and 1998 was adverse possession or not.

Citation McWilliams v. Schmidt, 61 S.W.3d 898 (Ct. App., Ark., 2001)

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