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August 30, 1983


From the Circuit Court of Pulaski County; Civil Appeal; Associate Circuit Judge Jack O. Edwards.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Crow

Hazel G. Carter appeals from a judgment declaring that Imelda H. Lohrmann and Agnes B. Lohrmann, sisters, own a wedge-shaped parcel of land. Hazel claims ownership by adverse possession. Her sole point is that the trial court erred in applying the law to the facts. The specifics of her complaint are discussed after our summary of the evidence.

On February 5, 1963, Hazel and her then husband, Edward J. Elliott, bought a tract of land on which a dwelling house was situated. The tract is composed of portions of lots 2 and 3 in a Waynesville subdivision.

At that time, a house was under construction on an adjoining tract, composed of the remainder of lot 2 and part of lot 1. By October 22, 1963, the house on this tract had been completed, and on that day, this tract was bought by Imelda and Agnes from the same grantors who had sold Hazel and Edward their property.

The tract purchased by Hazel and Edward lies north of the tract purchased by Imelda and Agnes. The fronts of both houses face generally west toward a street adjoining the west boundary of both tracts. The dividing line between the tracts begins at the street and runs from southwest to northeast, to the rear of the tracts. The respective legal descriptions of the tracts are such that there is neither an overlap nor a gap anywhere along their common boundary.

Hazel testified that before she and Edward bought their property, one of their grantors showed her iron stakes at the four corners. In the fall of 1963, after she and Edward moved in, they planted trees on the south side of their property, near, but north of, the boundary shown by the stakes. In the spring of 1964, they established flowerbeds in the same area.

Hazel and Edward were divorced, apparently in late 1969 or early 1970. By deed dated January 21, 1970, Edward quitclaimed his interest in their property to Hazel. Hazel married her present husband, James Carter, March 21, 1970.

Imelda testified that when she and Agnes moved into their house in October, 1963, there was no physical evidence on the ground showing the boundary between their property and Hazel's. Imelda did not know where the line was until a 1977 survey.

Agnes testified she was likewise unaware of the location of the line until the survey.

Hazel testified that between 1963 and 1977, the trees along the boundary continued to grow, and she maintained the flowerbeds. Other witnesses corroborated this. Hazel explained she had her lawn mowed "about one mower width beyond the trees" toward the Lohrmann house, continuing this practice until time of trial. She added that the trees were sprayed and pruned only by her family.

Imelda testified that from 1963 until the early 1970's, she and Agnes mowed their lawn, and most of the time they mowed up to Hazel's house. Imelda explained they did this "for appearance's sake" because Hazel was not mowing her lawn, and because they were afraid of snakes. According to Imelda, she and Agnes raked Hazel's leaves almost every fall until Hazel married James. In the early 1970's, Imelda and Agnes hired a man to do their mowing, and, at the request of Hazel and James, Imelda had the man mow Hazel's lawn at the same time. Imelda did not recall Hazel ever having the trees trimmed; Imelda said she (Imelda) did that "all these years."

Agnes corroborated Imelda's testimony about the mowing and tree trimming.

Imelda testified she "instigated" the 1977 survey because a lot at the rear of her property was "in an estate," and had been in dispute for several years. Hoping to avoid involvement in that quarrel, she decided to have her property surveyed so she and Agnes could put up a fence between their property and the lot in the estate. Several other residents in the neighborhood, including Hazel and James, decided to have their property surveyed at that time. John Mackey, a civil engineer and registered land surveyor, was retained by the group to do the surveys.

Mackey found no pins marking the line between Hazel's property and the Lohrmann property. When Mackey established the line between those properties, he staked the west end of the line some six to seven feet north of where Hazel believed it should be. Evidently, Hazel agreed with where Mackey staked the east end of the line. According to the line fixed by Mackey, the trees and flowerbeds were on the Lohrmann property.

Imelda testified that after Mackey's survey, Hazel said she wanted to buy some of the Lohrmanns' land. Hazel ...

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