ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

INTERNATIONAL PAPER

COMPANY

APPELLANT

V.

JAMES COLLIER, et al.

APPELLEES

CA 01-1103

SEPTEMBER 11, 2002

APPEAL FROM THE LAFAYETTE

COUNTY CIRCUIT COURT

[NO. E-2000-56-2]

HONORABLE JIM HUDSON,

JUDGE

REVERSED AND REMANDED

In this adverse possession case, the chancellor found that appellees, who are members of the Collier Deer Club, adversely possessed a small tract of land whose record owner is appellant, International Paper Company (hereafter "IP"). On appeal, IP argues, inter alia, that appellees did not have the requisite intent to hold the property against the true owner, nor was their possession hostile. We agree, and reverse and remand.

The land in question is a small, square-shaped tract, measuring 300 feet by 290.4 feet. It is situated in the middle of a large piece of property that IP acquired by deed in 1952. In the early 1950s, Cecil Collier, the father of appellees James and Reggie Collier, went onto the tract to establish a deer camp. He cut trees and erected a cook shack and a sleeping shack, along with a hog pen and a corral for horses. He then formed a hunting club, admitted members thereto, and spent time there on a regular basis for the purposes of

hunting andfishing, until his death in 1965. He was in complete charge of the camp and maintained and improved it at his own expense. There is no evidence that, during his lifetime, he had contact with anyone from IP regarding his occupation of the land. There is some evidence, however, that IP was aware of his presence; a nearby trail was named Collier Trail by IP in the late 1950s or early 1960s.

Following Cecil's death, his sons, appellees Reggie and James Collier, continued to occupy the property. They operated the hunting club and made other improvements, such as drilling a well, building a gazebo, and installing a concrete slab in the sleeping shack. No permission was sought from IP to make these improvements. Although the Colliers paid taxes on the improvements, they did not pay taxes on the realty; taxes on the realty were assessed to IP.

Beginning in 1973, the club had regular contact with an IP timberland supervisor named Ernest Cook. Cook visited the camp on both a friendly and a business basis, but nothing was ever discussed about the ownership of the site. Cook assumed the property was owned by IP, and he was not dissuaded from that assumption by the fact that the club had built structures on the land. According to Cook, IP allowed hunters to camp and hunt on its timberland, and he was not concerned about the erection of structures unless it looked as if the campers were settling permanently on the land. He described the Collier Club's structures as temporary.

In 1982, IP began to formally lease its land to hunting clubs. It notified appellees that they would be required to lease their campsite for $50 per year. Reggie Collier testified thathe told his fellow club members that the club should not have to lease what belonged to it, but the other members prevailed upon him to go along with the lease since IP was a big company and the lease was only $50. The club was anxious to maintain a good relationship with IP because the seventy-two acres that they leased for hunting were owned by IP. The club signed the lease in 1982 and continued to do so for the next sixteen years.

In 1988, a fire destroyed the camp structures. The club began rebuilding, and they asked Ernest Cook if the club could buy the campsite property. Cook discouraged the idea because IP did not like to sell its property, but he said it might be possible for the club to acquire nearby land and trade it to IP for the campsite property. The club acquired eighty acres for a price of $20,000, and, on May 16, 1990, formally offered to trade IP ten acres of the newly purchased property for three acres at the present campsite. While they were awaiting an answer from IP, the members continued construction on the new buildings (believing, based on their conversations with Ernest Cook, that the land swap would be approved). According to the members, they spent between $75,000 and $80,000 on the improvements.

The land-swap offer was rejected by IP in 1991. By that time, the new structures had been built. The club continued to sign yearly leases, but they were notified in 1999 that their lease would be non-renewed, as required by IP's new Game and Fish Commission management agreement. Following the nonrenewal, the club members sued IP in Lafayette County Chancery Court. They alleged in their complaint that IP owned the campsite property, and they sought the following relief: 1) specific performance of the land swapagreement; 2) detrimental reliance, seeking judgment for $97,000 ($77,000 for improvements and $20,000 for the eighty acres purchased); and 3) violation of the Americans with Disabilities Act (for erecting barriers that restricted access to hunting areas).

After filing their complaint, appellees moved for a temporary injunction to prevent IP from removing any improvements or transferring the campsite property. During a hearing on the motion, James Collier testified that, when discussing the land swap, he told Ernest Cook that the club "needed to own" the campsite land in order to build a nicer camp house and that, as far as he knew, IP owned the campsite land during the time the land swap was being considered.

On the same day that the hearing was held, appellees filed an amended complaint adding a claim for adverse possession. As an affirmative defense, IP pled that appellees' claim should be barred by estoppel, laches, and waiver. It also filed a counterclaim alleging that, if appellees indeed acquired title by adverse possession, IP's actions from 1982 onward resulted in it re-acquiring the property through adverse possession.

The trial judge ultimately dismissed all counts in appellees' complaint other than adverse possession, and there is no issue on appeal regarding those dismissals; thus, we concern ourselves solely with the judge's finding that appellees adversely possessed the land in question.

To establish title by adverse possession, a plaintiff has the burden of proving that he has been in possession of the property continuously for more than seven years and that his possession is visible, notorious, distinct, exclusive, hostile, and with the intent to hold againstthe true owner. Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780 (1998). For possession to be adverse, it must be hostile in the sense that it is under a claim of right, title, or ownership, as distinguished from possession in conformity with, recognition of, or subservience to the right of the owner. See Barclay v. Tussey, 259 Ark. 238, 532 S.W.2d 193 (1976). Whether possession is adverse to the true owner is a question of fact. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). We will affirm a trial court's finding of fact unless the finding is clearly against the preponderance of the evidence. See id.

Appellant's first two arguments are that appellees failed to prove that they possessed the property with the intent to hold it against the true owner and failed to prove that their possession was hostile. Because these two issues go hand in hand, we will consider them together. We begin by noting that, due to the paucity of evidence, both direct and circumstantial, regarding Cecil Collier's state of mind when he entered onto the property and occupied it thereafter, we cannot draw any legal conclusions regarding whether his intent was hostile or adverse to IP's ownership.1 Indeed, his actions are as consistent with permissive occupation as they are with adverse occupation; that being the case, appellees could not havemet their burden of proof by any evidence of Cecil's activities. We therefore concentrate our attention on the actions of Cecil's sons, appellees herein, who occupied the property from 1965 until 1999. In particular, we focus on IP's argument that certain actions taken by appellees in 1982 and thereafter are so at odds with appellees' claim of adverse possession that they belie any notion that appellees' occupation was hostile or with the intent to hold against the true owner.

The actions referred to by IP are the following. In 1982, appellees, despite their current claim that they own the campsite property, entered into a written lease of that property at IP's request. They continued to enter into the lease on a yearly basis for the next sixteen years. Further, between approximately 1989 and 1991, appellees expressed their desire to purchase the campsite property from IP, and, when that proved impractical, they engaged in an arrangement whereby they acquired ten acres of nearby land for the purpose of trading it to IP for the land at issue here. Additionally, the minutes of a 1998 club meeting reveal that appellees were concerned about violating hunting regulations and stated, "we do not wish to provide IP with any reasons to terminate our lease or to refuse to renew our camp site lease." A photograph was also admitted into evidence showing a sign that had been placed on the tract reading, "Leased By Collier Deer Club Members Only." According to Amy Hood of IP, the sign was on the gate to Collier Deer Club in 1998, but was changed to read, "Private Property Collier Deer Club Members Only," at or about the time of the injunction hearing. Finally, at the temporary injunction hearing, appellee James Collier said that, as far as he knew, IP owned the campsite property at the time the land swap was beingconsidered. We agree with IP that these factors are such strong evidence that appellees' possession was not adverse that the trial judge's ruling must be reversed.

Appellees signed leases with IP year after year from 1982 until 1999 without complaint and without asserting any ownership right in the property. Leasing property from a record owner is generally considered recognition of his title. See 3 Am. Jur. 2d Adverse Possession § 102 (2d ed. 2002). Appellees also offered to purchase the land from IP and, although an adverse claimant may offer to buy another's land to effect a peaceful resolution of a title dispute, Pitts v. Pitts, 213 Ark. 379, 210 S.W.2d 502 (1948), there is no evidence that appellee's offer was made in connection with a title dispute. Rather, appellees needed ownership of the land to obtain financing for improvements on the property. Further, appellees did more than simply offer to buy the property; they entered into a complex arrangement whereby they purchased ten nearby acres in order to swap that acreage for their campsite property. Approximately three years went by between the time appellees initially expressed an interest in purchasing the campsite property and the rejection of their offer by IP. There is no evidence in the record that appellees, during this time, asserted an ownership interest in the property or told IP or their financial institution that they were the true owners of the tract, when it would have been much easier to do so.

Appellees correctly point out that the acts relied on by IP did not take place until seventeen years or more after appellees' occupation began in 1965, well after the seven-year statutory period for adverse possession had passed. However, an adverse claimant's recognition of title in another, made after the seven-year statutory period, may be consideredin determining the character of the possession during the statutory period, although it does not necessarily divest the possessor of adversely-acquired title. See Harp v. Christian, 215 Ark. 833, 223 S.W.2d 778 (1949); Pitts v. Pitts, supra. We believe that, while no single one of appellees' actions in this case is sufficient to overturn a finding of adverse possession, when taken as a whole, they reveal that the true character of appellee's possession was neither hostile nor with an intention to hold against the true owner.

A trial judge's finding of fact is clearly erroneous when, although there is evidence to support it, we are left, on viewing the entire evidence, with the definite and firm conviction that a mistake has been committed. Foxcroft Woods, Inc. v. Foxglen Assocs., supra. We have such a conviction in this case and, accordingly, we reverse and remand with directions to enter an order consistent with this opinion.

Reversed and remanded.

Stroud, C.J., and Hart, J., agree.

1 Witnesses W.E. Collier and D.A. Whitehead testified that, in the 1950s, landowners would permit persons to go onto their lands and hunt and camp without benefit of a lease, and W.E. said that he felt sure that Cecil had permission to hunt on the property; but such evidence of custom and policy does not conclusively establish that Cecil Collier's entry was permissive. See Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (Ark. App. 1979).