¶1(Dissenting). This is a boundary line case between adjoining landowners and relatives. In dispute is a strip 35 feet wide ■east and west, and 1320 feet long north and south. The appellee (defendant below) claims to the legal survey line; and the appellant (plaintiff below) claims to a fence 'line by (a) adverse possession, and (b) by long established boundary.
¶2J. A. Tull, father of the appellant, was the common source of title. In 1922 J. A. Tull conveyed to the appellee’s grantor the east one-fourth of a certain 40-acre tract ;
¶3Appellant claims that he has all the time been in possession up to a certain fence, which he claims is the long established boundary; and also that a maple tree on that line was a recognized landmarker. The man who erected the fence testified that he began where he thought the east line of the 40 acres was, and stepped off 110 yárds to the west, and then erected the fence in question. He testified that it was never recognized by anyone as being a real boundary line fence, but was only a fence for convenience. The same witness, and others, testified that appellant never claimed the said fence was the line until just a short time before this litigation; that appellant went to see appellee just before the litigation and suggested that a survey be made to determine the true boundary; that when the survey was made it was discovered that the true boundary was 35 feet west of the fence; that appellant then asked appellee’s permission to remove — and did remove — some young peach trees from the 35-foot strip; and that appellant then told appellee that the other peach trees on the 35-foot strip belonged to the appellee.
¶4All of the foregoing testimony had a direct and pertinent bearing on whether the defendant had the intention to hold adversely up to the fence line. The testimony certainly showed that there had never been the essentials of an agreed boundary. When the appellant was examined about these matters, the following occurred:
“Q. You never have claimed that the fence was on the line have you?
A. I am claiming it now.
Q. You are claiming it now?
A. Always claimed it.
Q. Did you offer to pay for a part of the cost for surveying that property?
A. Yes, sir.
Q. Have you paid for a part of the cost?
A. No, sir.
Q. Did you have some reason for changing your mind ?
A. Yes, sir.
Q. What was the reason?
A. Well, I started to tell you a while ago. At that time I understood. Orville felt like he wasn’t getting ten acres that Ms father had sold him and that he didn’t have ten acres in the beginning. The measurements might have been in error I knew and I felt that I was supposed to defend the old title made that he was to get ten acres but since that time it was called to my attention the 7 year law would hold in this case therefore I ceased to be interested.
Q. Who told you about the seven year law?
A. I found out.”
¶5The appellant’s testimony, as copied, shows that appellant originally thought that he would have to defend appellee’s title to the true line (since appellant’s father had conveyed the land to the appellee’s grantor); and it was not until after the survey that appellant learned of the ££7-year law” (which, clearly means seven years adverse possession under the Statute of Limitations), and thajt after learning of the <£7-year law” appellant then decided to claim adversely up to the fence. This shows that appellant did not have for seven years the intention to claim adversely. In Collins v. Bluff City Lbr. Co., 86 Ark. 202, 110 S. W. 806, this Court held that title to land could not be acquired by possession for the statutory period, unless the possession be adverse. In Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625, a party in possession of land wrote to another, acknowledging the latter as the owner; and this Court held that the title of the party in possession was not adverse, since it was not of a hostile character. In Britt v. Berry, 133 Ark. 589, 202 S. W. 830, the plaintiff’s husband encroached on the defendant’s land by permission and the plaintiff did not notify the defendant that she was holding adversely, so she acquired no adverse possession. In Fulcher v. Dierks Lbr. Co., 164 Ark. 261, 261 S. W. 645, this Court held that if the holding of land began by permission, such holding did not ripen into adverse or hostile right until notice was brought home to the owner, and then the adverse holding had to be continued thereafter for the statutory period. In view of these, and many other eases, I maintain that Mr. Tull did not establish adverse possession or a long established boundary. It is my view that the Chancery decree should be affirmed.
¶6Therefore, I respectfully dissent to the reversal by this Court; and the Chief Justice joins in this dissent.
¶7 There was a 4-acre square in the northeast corner that was reserved, but the 4-acre tract is immaterial to this litigation.
¶8 There was a reservation of a 4-acre tract in the northwest corner, hut this reservation is immaterial.