Fulkerson v. Van Buren

60 Ark. App. 257, 961 S.W.2d 780 (1998)

 

RULE:

In order to establish title by adverse possession, the claimant has the burden of proving that she had been in possession of the property continuously for more than seven years and that her possession was visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Whether possession is adverse to the true owner is a question of fact.

FACTS:

The church claimed that it had title to the land at issue by adverse possession. The court reversed the trial court's award of the title to the parcel to the church. However, it was found that the church congregation did not possess the land with the requisite intent for seven years, the church congregation did not adversely possess the land.

ISSUE:

Can a possessor who has failed to show his intention to hold land in a clear, distinct, and unequivocal way, be allowed to attain title by adverse possession?

ANSWER:

No.

CONCLUSION:

Given this testimony by Reverend Van Buren, given that a possessor of land does not possess adversely if, while in possession, he recognizes the ownership right of the titleholder to the land, and given that proof of the possessor's intention to hold adversely must be clear, distinct, and unequivocal and must have lasted seven years, we conclude that the circuit court's finding of fact that the congregation of the Progressive Church possessed for seven years the requisite intent to possess the land at issue adversely to appellant Fulkerson is clearly against the preponderance of the evidence. Because the church congregation did not possess the land with the requisite intent for seven years, the church congregation did not adversely possess the land.

For the reasons set forth above, we reverse the Pulaski County Circuit Court's judgment in favor of appellee the Progressive Church, Inc., on its counterclaim for adverse possession, and remand to the circuit court for further proceedings not inconsistent with this opinion.

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