# Russell v. Webb > Supreme Court of Arkansas · July 11, 1910 · 96 Ark. 190 URL: https://www.frixlaw.com/law-library/cases/6548134 ## Case - **Full name:** Russell v. Webb - **Court:** Supreme Court of Arkansas - **Decided:** July 11, 1910 - **Citations:** 96 Ark. 190; 131 S.W. 456; 1910 Ark. LEXIS 31 - **Precedential status:** Published - **Opinion:** On rehearing by Frauenthae - **Judges:** Frauenthae, Frauenthal - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6548134 ## Opinion text ON REHEARING. Frauenthae, J. Counsel for appellant have filed a motion for rehearing, and therein have suggested certain errors which they urge this court has made in its opinion. We deem it proper to note each of these contentions in order to make clearer our opinion. In our opinion we stated that appellant urged that the lower court erred in permitting the introduction of alleged conversations had with the father of the defendant relative to the location of the line between his land and the land of plaintiff, on the ground -that the father had died since the time of the alleged conversations. Counsel claim that we misunderstood the ground of their objection to that testimony. They now urge that Mr. Russell, 'Sr., had been in possession of the land in controversy for a longer period than seven years, and that a recognition of the other’s title by one who has thus acquired title by adverse possession will not revest title; and that their objection to the testimony relative to- these conversations was based upon the ground that they had occurred after the statutory period had run. But the issue involved in this case was whether or not the possession of Mr. Russell, Sr., was adverse or only permissive. He is the person by whom the possession was held for the statutory period. Testimony, therefore, would he competent to show that such possession was not adverse. Any act or conversation recognizing the claim of the original owner after the seven years’ occupancy would tend to .show that the possession 'held during the statutory -period was not adverse. Though such testimony is not admissible for the purpose of divesting title out of the adverse occupant and revesting it in the original owner, it is perfectly admissible for the purpose of showing that the possession of the occupant was not adverse, and that the occupant did not acquire title by the possession, -which was only permissive. Shirey v. Whitlow, 80 Ark. 444 ; Hudson v. Stilwell, 80 Ark. 574 . Counsel insist that it was error to refuse to permit the witness Neighbors to detail certain conversations had by him with Mr. Russell, Sr. Now, before it can be said that the lower court committed an error in refusing to admit testimony, it must be shown that a correct and competent question was asked. In this case it was competent to prove statements made by Mr. Russell, Sr., while in the possession of the land in ■controversy, as to the nature of his claim thereto and the character of his possession thereof. Mr. Russell, Sr., owned other land than the small triangular tract in controversy. He owned 160 acres of land, according to the testimony. Now, there were only two questions which were propounded to this witness, objections to which were sustained. By the first question appellant desired to prove by this witness that Mr. Russell, Sr., sent the witness for rocks to put over his land; and by the second, that Mr. Russell stated that he wanted his son to know his land when he was dead. Now, these conversations may have referred only to the 160 acres of land which it is conceded that Mr. Russell, Sr., owned. The appellant did. not by any question .show specifically that Mr. Russell desired to place these rocks on the triangular tract in controversy, or that that tract was the land or a part of the land which he wanted his son to know that he owned. While it may be that it would not have been prejudicial error to have permitted these questions to have been asked and answered, yet, inasmuch as they related to .his land generally, and not to the land in controversy specifically, it can not -be said that the count committed prejudicial error in not allowing them to be asked. It is earnestly insisted that the judgment is so indefinite and uncertain in the description of the land recovered that it is ineffective. It is urged that the description therein is so imperfect that a writ of possession issued thereon can not be executed. This contention gave us. no little concern on the original hearing of this appeal, and has given us great concern -on this application for a rehearing. We have, however, concluded that the description is not so imperfect that a writ issued thereon can not be executed. The main question involved in the case was whether or not the defendant had acquired title to the land in controversy by adverse possession. It was 'determined that the defendant had not acquired title thereto by adverse possession, and it was found by the jury that this trad: in dispute was a part of the west half of the southeast quarter of section 2, in township 6 north, range 18 west. The western boundary of this tract in dispute was the line between the said west half of the southeast quarter and the southwest quarter of said section 2. The survey of the United States Government fixed that line, and the surveyor, Hale, located it. He located the southern and northern extremities of the line, • and noted them on the ground with sufficient definiteness by reference to fixed objects. Between these points he put stakes at certain distances apart. These markings thus made by the surveyor on the ground may be removed; but any monument he may have placed on the line might be removed. If he had erected mounds, they might be removed. He did locate the line which be established, and marked its location on the ground. The officer into whose hands -the writ of possession may be placed can, we think, locate that line on the ground thus marked by the surveyor. If he can not or does not, the appellant is not without remedy. The court issuing the writ of possession has full and complete control over its process, and 'if upon the return thereof it is made to appear that the line has not been correctly located, the appellant can then have the line thus established by Hale located at the points and along the places which were actually noted by the surveyor, Hale, on the ground, by evidence introduced before the court out of which the writ issued. The court can then hear testimony as to the true location of the line that was established by the surveyor, Hale. If, then, the officer in executing the •writ has taken possession of more land than was specifically recovered, the court can order a restitution thereof. Warvelle on Ejectment, § 520. After the rendition of -the opinion on the original hearing appellant filed a motion for a writ of certiorari for the purpose of bringing up the original map introduced in evidence, the object being to show that a house now appearing upon the map in the transcript does not appear upon the original. But, inasmuch as the noting of this house upon the map in the transcript was not controlling in our opinion, the motion for the writ is denied. The motion for a rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6548134. Public record. Not legal advice.