NOT DESIGNATED FOR PUBLICATION

DIVISION I

DOWE MARSHALL AND JUDY

MARSHALL

APPELLANTS

V.

PETER LAUGHLIN, ET UX

APPELLEES

CA 00-1414

October 24, 2001

APPEAL FROM THE YELL

COUNTY CHANCERY COURT [E-99-75]

HONORABLE VAN B. TAYLOR,

CHANCERY JUDGE

AFFIRMED

This case involves a property dispute arising between adjacent landowners, appellants, Dowe and Judy Marshall, and appellees, Peter Laughlin, et ux. Appellants claimed their interest by adverse possession and filed suit to quiet title. Appellees, Peter Laughlin, et ux, filed a counterclaim to quiet title. At the close of appellants' case, appellees moved for a directed verdict. The trial court granted the motion, holding that appellants failed to prove title by adverse possession and that the title to the disputed strip was lawfully in the names of the appellees.

Appellants' primary contention on appeal is that "the trial court erred in ruling that the appellants had not proven sufficient acts of ownership nor possession of the land in question to survive a motion for a directed verdict, because the evidence shows that appellants made a prima facie case." We affirm.

Appellant Dowe Marshall testified that he bought Lot 17 of the Boyce Manor subdivision in August 1991. He stated that the realtor showed him where the land was and told him that the "big red post" was on the southeast corner. He said that he occupied and maintained the land from the "big red post all the way back West of the highway" continuously from the day he bought it. He stated that appellee Peter Laughlin bought the lot south of his, Lot 18, sometime later; that they visited several times and would talk while they both mowed the grass. He said that he pointed out to appellee Laughlin the big red post on the corner and told him that was where the corner was pointed out to him when he bought his lot.

Appellant Dowe Marshall testified further that he planted trees "not exactly on the South line but about eight feet to the North of the South line and I continued to mow to the South of where I put my trees all the way to my South line, which is a direct line between the big red post back to the West all the way to the highway in front of my house." He stated that appellee Laughlin "never made any objection to the area of the land I was occupying"; that appellee asked him one time where the boundary markers were and said that he didn't think it looked right on his plot; and that "I told him what I had been told my line was and we said nothing else about the line from that point on [and we] continued to talk and keep on mowing exactly like we were." Appellant said that about two and one-half or three years after appellee bought the property, he started putting stakes "up in my yard" and "that's when I found out he had the property re-surveyed and that I was on him." He said that the survey markers "do not come anywhere close to marking off what I purchased." He said thatno one mows over on the land that he claims; that they mow "right down the line just like I do."

On cross-examination, appellant was asked when he planted the trees. With respect to the trees along the south line, he responded, "[T]he ones that are along that line on the south side had been planted - - have been there at least six years." When asked how long they had been planted before April 23, 1999, the date appellant filed his complaint, appellant testified, "[T]hey've been there about five years." When asked, "Other than that, all you did was mow?," appellant testified, "That and plant the pine trees that are on the back side on the west [sic] side." Appellant further testified that the only deed he is claiming under is the one he got when he bought the property.

The only other witness presented by appellants was appellee Peter Laughlin. He testified on direct examination that he knew where the property stake was located at the back side of the property; that it was "a six-foot-high orange stake and right next to it is a pine tree and there are pine trees going North." He said that the stake back there was on Lot 18 when he bought it because it's a corner post for the lot adjoining Lot 18 to the east, which he bought also. He stated that he knew the post was out there and that he knew it was the corner post of the other lot.

Appellants rested their case after appellee Laughlin's testimony, and appellees moved for a directed verdict based on Arkansas Code Annotated section 18-11-106 (Supp. 1999), contending that appellants had not shown that they had color of title to the disputed strip nor that they had paid taxes on it for seven years. As a second basis for the motion, appelleescontended that appellants were without color of title and that the acts of ownership over the property were not sufficient. The motion was granted by the chancellor, who stated, "I'm ruling that [appellee] owns the property to the survey property line." The actual order entered in this case states in pertinent part:

Appellants subdivide their point of appeal and first contend, "Appellants were in possession under color of title and exercised dominion over Lot 17 as their yard for over eight years without objection by appellees." In furtherance of this argument, appellants state that "[e]xamination of the plat indicates that the South line of Lot 17 and the North line of Lot 18 did not run at any angle but ran straight East and West"; that "[u]nder these circumstances a Warranty Deed to Lot 17 would place color of title in the Appellants"; that they not only had color of title but they had actual title to Lot 17; and that there was a question of fact whether the original plat of the Boyce Manor Subdivision correctly set out the south line of Lot 17 or whether the survey provided for by appellees correctly set out the survey.

The problem with this argument, however, is that they did not make it to the chancellor. The case they tried was one of adverse possession, not whether the property descriptions, plats, or surveys were in error. We do not address an issue that is raised for the first time on appeal. Dillard v. Wade, 74 Ark. App. 38, 45 S.W.3d 848 (2001).

For their second subpoint, appellants contend that the chancellor erred in ruling that they had not proven sufficient acts of ownership nor possession of the land in question to survive a motion for directed verdict. We disagree.

Appellants open this section of their argument by asserting, "Once there was a question of fact as to the true location of the South line of Lot 17 and the North line of Lot 18 as presented by the exhibits, and a question of fact as to the possession by the Appellants of Lot 17, the Court no longer was justified in ruling on a motion for a directed verdict because it is not the office of the motion of directed verdict to decide factual questions." They then discuss adverse possession, noting that the party asserting it has the burden of proving continuous possession for more than seven years that is "visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner . . . .," and contend that their acts of dominion and ownership were consistent with the character and location of the land. They never mention Arkansas Code Annotated section 18-11-106 (Supp. 1999), which also requires that the party asserting adverse possession have paid ad valorem taxes on the property or held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of title. No proof of payment of ad valorem taxes was introduced at trial.

Further, appellants never recite in their argument the actual acts of dominion upon which they rely, but the testimony at trial was limited to planting trees and mowing grass. Moreover, the tree-planting evidence was diminished when it became clear that they had onlybeen planted five years prior to the filing of the complaint. That is, appellant testified that "[T]he ones that are along that line on the south side had been planted - - have been there at least six years." When asked how long they had been planted before April 23, 1999, the date appellant filed his complaint, appellant testified, "[T]hey've been there about five years." When asked, "Other than that, all you did was mow?," appellant testified, "That and plant the pine trees that are on the back side on the west [sic] side." The testimony never made clear how long the trees on the east side had been planted. That leaves us with his evidence of mowing.

This court tries chancery cases de novo on the record, and it does not reverse unless it determines that the chancery court's findings were clearly erroneous. Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999). Whether possession is adverse to the true owner is a question of fact. Id. Moreover, in reviewing a trial court's ruling on a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the directed verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). A motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Id. Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. Id.

Here, with mowing being the only evidence of adverse possession, even viewed in the light most favorable to appellants, it was so insubstantial as to require a jury verdict for appellants to be set aside. We find no error, therefore, in the chancellor's decision to grant appellees' motion for directed verdict.

Affirmed.

Hart and Jennings, JJ., agree.