United States: State Court Prioritizes Taxpayer ID In Adverse Possession Of Unimproved Land Case

Introduction

The Court of Appeals for Arkansas, Second Division, recently affirmed the dismissal of a complaint seeking to quiet title a tract of undeveloped land between two neighbors on the Little Red River in Alma, Arkansas, on theories of adverse possession and acquiescence. Linder v. Gertsch, 2023 Ark. App. 484, 678 S.W.3d 635 (Ct. App. 2023). The case highlights the basic principles of the doctrines of adverse possession and boundary line by acquiescence in a colorful fashion and emphasizes the critical nature of credibility determinations by a factfinder in applying those doctrines.

Background

Lisa and Michael Gertsch (the "Gertsches") owned Lot 1 of Hidden Valley Estates in Alma, Arkansas, since 1982. Their neighbors, Kathy and Perry Linder (the "Linders"), purchased their farm in 1992.

In 2018, the Gertsches purchased an adjoining undeveloped 1.63-acre parcel of real property along the Red River (the "Property") from the estate of Fleda Shearer.

After the Gertsches bought the Property, the Linders claimed title to the Subject Property under theories of adverse possession and acquiescence. The two families undertook acts of dominion over the Subject Property, such as the Gertsches installing a fence and "the Linders cut the fence to brush hog the Subject Property, the Linders painted blazes on the trees and posted no-trespassing signs, and the Gertsches removed them."

The Trial

At trial, Perry Linder "testified that when he bought his farm, he received a survey at closing identifying a triangle consisting of 12.68 acres that was not being conveyed, and the Property lay at the eastern end of that triangle. Perry also that claimed he later acquired title to the Subject Property through a quitclaim deed executed in 1999 from Ricky Whisnat." However, Whisnat never testified at trial, the quitclaim deed was indefinite in that it did not identify the conveyed property, and there was no indication in the public record that the Linders ever owned any interest in the Subject Property.

Perry Linder further testified about a meandering fence traversing the Subject Property that represented the boundary line between his property and the property formerly owned by the Shearers. He also "introduced a statement from J.C. Shearer (deceased) regarding the fence that was alleged to have stood to the west of Gum Springs Creek." Perry Linder stated that J. C. Shearer recognized the existence of the fence and had no issue with it. Kathy Linder claimed she had paid ad valorem taxes on the Subject Property but had no evidence to support it.

The title agent who closed the sale of the Subject Property to the Gertsches in 1982 stated that "nothing in the public record indicated any interest of the Linders to the Subject Property." Moreover, the taxes assessed against the Subject Property had been paid by the Shearers and the Shearer Estate—not the Linders. The agent completed his testimony by stating " [t]here was no hint of any dispute between the parties prior to the Gertsches' purchase of the Subject Property."

The trial court found the Linders' testimony not credible and thus rejected all of the claims made by the Linders. The court also found that based on the continuous payments of taxes by the Gertsches and Shearers before them and because of the wild, unimproved, and unenclosed nature of the Subject Property, the Gertsches were deemed to be in possession of the Subject Property. The trial, therefore, quieted title of the Subject Property to the Gertsches.

Appeal

On appeal, the Court of Appeals first detailed that to prevail on a boundary line by acquiescence, there are "three essential elements—(1) a tacit agreement between the parties; (2) recognition of the boundary for a long period of time; and (3) a fixed line that is definite and certain." Thurlkill v. Wood, 2010 Ark. App. 319, 374 S.W.3d 790. In addressing this, the Court agreed with the trial court that a statement by a deceased witness, J.C. Shearer, lacked credibility. The Court noted that there was never any evidence that J.C. Shearer and the Linders were ever neighboring property owners, such that J.C. Shearer could have tacitly accepted the fence line and, thus, the property line. A boundary line by acquiescence depends on the totality of the facts and the landowner's conduct over time, and nothing presented by the Linders supports the claim that the Shearers ever recognized a forfeiture of their property.

To succeed on an adverse possession cause of action, the Linders had to show actual possession for at least seven years, with possession being actual, open, notorious, continuous, hostile, and exclusive. The trial court found none of these elements were present on the wild, unimproved, and unenclosed Property.

Further fatal to the Linders' claims was Arkansas Code provides that "[u]nimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he or she has color of title thereto, but no person shall be entitled to invoke the benefit of this section unless he or she, and those under whom he or she claims, shall have paid the taxes for at least seven (7) years in succession." Arkansas Code Annotated section § 18-11-102 (Repl. 2015)

Takeaways

This case is fact-specific, but it is an interesting exposition of the principles of adverse possession and boundary line by acquiescence and how fact-specific these claims can be. It is also a reminder for those in jurisdictions that require payment of taxes to plead the doctrine that determining who paid the taxes should be one of the first things one should do in defending against such claims.

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