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Deatherage v. Lewis

OPINION FILED MARCH 1, 1985.

HARRY D. DEATHERAGE, PLAINTIFF-APPELLANT,

v.

RUSSELL LEWIS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. Clayton R. Williams, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

At issue in the instant case is whether the plaintiff's possession of property with his father during the plaintiff's minority was sufficient to show his acquisition of the property by adverse possession. We find that it was not and accordingly affirm the judgment of the trial court.

The property that is the subject of this suit consists of a strip of ground 27 feet in width and approximately 600 feet in length. The parties described the property as a "ditch" lying approximately eight to 10 feet below the property north and south of it. The disputed strip runs east and west along the southern border of property belonging to the various defendants and lies north of a farm once owned by the plaintiff's father and then by his mother. The plaintiff's father's farm was separated from the disputed property by a strip of ground 75 feet in width. The plaintiff purchased this latter strip in 1967 but owned no other property in the area.

While the record is unclear as to the ownership of the disputed property at times relevant to this action, it appears that the property was acquired by Howard Robertson at an undisclosed date from the East Side Levee District. Robertson had also purchased the property immediately north of the disputed strip in 1968 from Ervin Schaeffer. Robertson had sold the 75-foot strip south of the disputed property to the plaintiff and, in 1977, had sold both the disputed strip and the property north of it to Russell Lewis. This property was subsequently developed by defendant Eastlands, Inc., and sold as lots to the individual defendants whose lots contained a portion of the disputed property.

At a hearing on the plaintiff's amended complaint to quiet title to the disputed property, the plaintiff testified that he had moved with his parents to his father's farm in 1937. At that time there was a fence along the north edge of the disputed property consisting of three or four feet of hog wire plus a strand of barbed wire. The plaintiff stated that the fence had not been maintained since the early fifties and that he had taken down a substantial part of the fence about 20 years earlier (around 1960). The plaintiff at another point stated that the fence had not come down until after the property had been surveyed in 1969.

The plaintiff asserted that he had "constructively farmed" the property in question since 1939, when he was eight years old. More specifically, he stated that the property had been farmed by his father "who kept hogs and cows and had hog houses." After the fifties the property had been used only to store equipment and scrap lumber and to dump trash. This use had been intermittent, and the storage and dumping had occurred primarily near the Deatherage residence. The plaintiff had not maintained the fence since the early fifties because "there was no livestock." The plaintiff stated further that he had occasionally hunted and cut firewood on the disputed strip and that he had had a garden there about six years earlier.

Gus Smolar, a friend of the plaintiff's for about 35 years, testified that he had seen the fence line on the disputed strip in 1944 or 1945 when it was "good and tight." He had first noticed some deterioration of the fence between 1959 and 1964, and the fence had now been knocked down in places. Gus Smolar stated that he had observed pasturing in the ditch and that he had at one time had a tar vat in the ditch that he had used to treat fish nets. He had also seen some lumber stored there from time to time for intervals of 30 days to four or five months.

Howard T. Robertson, the previous owner of the disputed property, testified that he had lived near the property since 1945 and could see it from his home. He had been aware of the fence on the property and had known of the use of the property by the plaintiff's father. Robertson had had no objection to this use because he had been a good friend of the plaintiff's father. Robertson stated that he and the plaintiff's parents and Ervin Schaeffer, from whom he had acquired the property north of the disputed strip, had been "neighbors and good friends." Robertson stated, however, that he did not get along well with the plaintiff.

Robertson testified that by 1952 the fence on the disputed property had remained only in part. There was no work done on it after 1954, and it was no longer in existence after 1959. Robertson stated that sheep had been grazed on the disputed parcel one spring in 1948 or 1949, but he could not remember any cows being kept there. According to Robertson, the plaintiff had farmed since about 1948 or 1949.

Robertson stated further that in 1969, after he had sold the 75-foot strip of ground to the plaintiff, the plaintiff had tried to make a trade with Robertson for the disputed property. The plaintiff challenged this testimony by offering into evidence a letter he had written to Robertson's attorney in 1969 concerning the possibility of acquiring property owned by Robertson north of the fence line.

Defendant Russell Lewis, who had purchased the disputed property from Robertson, testified that the plaintiff had approached him in early 1977, before he (Lewis) had actually acquired a deed to the property, to propose a trade of other property for the disputed strip. Lewis could not make such a trade because his loan documents had been prepared and he was afraid that his financing would be delayed by a change in the legal description.

Howard W. Robertson, son of Howard T. Robertson, testified that he had lived with his parents near the disputed property until 1955 and knew the plaintiff well. He stated that the last time the property had been used for pasturing was in the fifties. The plaintiff's parents had kept milk cows there, but the plaintiff did not have any cows on the property. Robertson stated that he had never seen the plaintiff work on the fence and that, after the pasturing had stopped, the plaintiff had used the disputed strip intermittently to dump trash and store scrap. Most of the dumping had been south of the disputed property, however, and there had been no farm implements stored there during the last 10 years.

Following the hearing the trial court entered judgment for the defendants and against the plaintiff on his claim of ownership by adverse possession. In an extensive memorandum of judgment, the court noted that the plaintiff claimed to have commenced the period of adverse possession in 1939 when he was eight yeas old and to have continued such possession until 1959 when title was perfected. The court continued:

"The law is very clear on the question of one obtaining title by adverse possession against a minor. One cannot obtain title in that manner during the infancy of a minor owning land. It would seem to this writer that the converse should also be true — that an infant cannot ...


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