Shirey v. Whitlow

80 Ark. 444 · Supreme Court of Arkansas · 1906

Facts

A. W. Shirey and J. M. Whitlow own adjoining tracts of land. Shirey enclosed two small parcels of land belonging to Whitlow with his own land approximately fifteen to twenty years ago. Shirey cleared and continuously cultivated these parcels, believing them to be his own. Whitlow later informed Shirey that he had some of Whitlow's land enclosed. Shirey then asked Whitlow if he claimed the rails and subsequently offered to buy the land from Whitlow.

Procedural history

This case is an appeal by A. W. Shirey from a judgment rendered against him in favor of J. M. Whitlow. The trial court had issued a judgment against Shirey. This court reversed that judgment and remanded the case for a new trial.

Issue

Does a landowner's recognition of another's claim or offer to purchase land, made after the statutory period for adverse possession has run, divest the title acquired by adverse possession?

Holding

No, recognition of another's claim or an offer to purchase made after the statutory period for adverse possession has elapsed does not divest the title already acquired by the adverse claimant. The court reversed the judgment and remanded for a new trial because a jury instruction to the contrary was incorrect and prejudicial.

Rule

When a landowner, acting under a mistake as to the true boundary, takes possession of another's land, incloses it, claims title, and holds possession for the statutory period, they become the owner through adverse possession, provided their intention was not to claim only to the true line. Recognition of the owner's title before the statutory period has run will show that possession is not adverse. However, recognition of another's claim or an offer to purchase made after the full statutory period has elapsed and title by limitation has vested does not divest the title from the adverse claimant. While such post-statutory recognition may be evidence for the jury to consider regarding the nature of the possession, it is not conclusive as a matter of law.

Read the full opinion on CourtListener

Case brief last reviewed 2026-09-18. Prepared by CaseReader from the published opinion.