arkansas law of damages, fifth edition chapter 30 real...

Arkansas Law of Damages, Fifth EditionChapter 30: Real Property

HHoowwaarrdd WW.. BBrriillll Vincent Foster Professor of Legal Ethics & Professional Responsibility

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RREEAALL PPRROOPPEERRTTYY

§ 30–1 Damage to real property

§ 30–2 Damage to improvements

§ 30–3 Damage to trees and landscaping

§ 30–4 Damage to crops

§ 30–5 Absolute liability

§ 30–6 Trespass on real property

§ 30–7 Premises liability

§ 30–8 Trespass: severance of timber

§ 30–9 Trespass: removal of minerals and products

§ 30–10 Breach of contract to convey: action by buyer

§ 30–11 Breach of contract to purchase land: action by seller

§ 30–12 Rescission of land sale contracts

§ 30–13 Ejectment

§ 30–14 The mistaken improver and the betterment statute

The following is an excerpt from the forthcoming Fifth Edition of Howard W. Brill’s bookARKANSAS LAW OF DAMAGES. Because it is an excerpt from a book, some of the references printedhere are to other portions of the book not included. For each of the subheadings noted below, thefootnote numbers restart at one. This has been reprinted with permission from West Publishing.The Fifth Edition will be published in late 2004.

§§ 3300––11.. DDaammaaggee ttoo rreeaall pprrooppeerrttyy

In the instance of negligently caused damage toland, the initial question is whether the injury ispermanent or temporary. Established case lawstates that if the value of the property destroyeddepends upon its connection with the soil, the meas-ure of damages is the change in the fair marketvalue.1 For permanent damage to real property, themeasure of damages is the difference in fair marketvalue immediately before and immediately after theoccurrence.2 This measure has been applied to situ-ations ranging from the overflow3 or diversion of astream,4 to the destruction of growing trees,5 and tothe loss of top soil through water drainage.6

Arguably these types of damages should, particular-

ly today, be treated as temporary damages, as theyappear to be reversible. Even the deposit of toxicwastes upon land may be correctable with moderntechniques.

On the other hand, if the damage to the proper-ty is temporary, the measure of damages is the rea-sonable expense of necessary repairs.7 That measurehas been applied to the cost of restoring a bridge,8

cleaning a pond,9 reseeding a meadow,10 repaving aparking lot,11 replacing top soil and other landcover,12 and remedying groundwater and soil con-tamination.13 The objective is to provide the funds torestore the property to its condition prior to theinjury.14 Indeed some of the cases suggest that thepotential for restoration is a factor in determiningwhether the damage should be treated as tempo-rary.15

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§ 30-11 Damage to real property

1. Bush v. Taylor, 130 Ark. 522, 197 S.W. 1172 (1917). Real property is valued by the capitalization of income method, thereplacement cost method, and the market or comparable value method. See § 18–3, supra.

2. Ark. Model Instruction (Civil 4th) 2222; St. Louis & San Francisco Railway Co. v. Friddle, 237 Ark. 695, 375 S.W.2d 373(1964) (fire damage to 15 acres of pasture and timber lands).

3. St. Louis, I. M. & S. Ry. Co. v. Miller, 107 Ark. 276, 154 S.W. 956 (1913).

4. St. Louis, I. M. & S. Ry. Co. v. Magness, 93 Ark. 46, 123 S.W. 786 (1909).

5. St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159 (1900) (trees were part of the land and could not be replacedin a short time).

6. Brouwer v. Stephens, 7 Ark.App. 87, 644 S.W.2d 329 (1983).

7. Ark. Model Instruction (Civil 4th) 2223.

8. Lewis v. Phillips, 223 Ark. 380, 266 S.W.2d 68 (1954) (restoration of a bridge).

9. Ross & Ross v. St. Louis, I. M. & S. Ry. Co., 120 Ark. 264, 179 S.W. 353 (1915).

10. St. Louis & San Francisco Ry. Co. v. Jones, 59 Ark. 105, 26 S.W. 595 (1894).

11. See Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987) (gas spills from adjoining land necessitated repavingparking lot; but the amount of damages awarded was based on sheer speculation).

12. Kutait v. O’Roark, 305 Ark. 538, 809 S.W.2d 371 (1991) (restoration costs for the removal of several thousand yards ofshale, rock and ground); C. R. T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980).

13. State of Arkansas v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2003) (contamination from nearby gasolinestorage tanks).

14. Fox v. Nally, 34 Ark. App. 94, 805 S.W.2d 661 (1991) (damage from construction of natural gas pipeline).

15. Highland Industrial Park, Inc. v. BEI Defense Systems Co., 192 F. Supp. 942 (W.D. Ark. 2002).

ARKANSAS LAW NOTES 2004

In the case of temporary damage, the plaintiff isalso entitled to compensation for loss of use, fromthe time of injury to the time the land was or couldhave been repaired or restored to its original condi-tion.16 That loss is typically measured by decreasedrental value.17 The owner is entitled to recover forloss of use regardless of whether he repaired theproperty.18

The specific losses are determined on a case bycase basis. For example, in an action against a gov-ernment agency for negligently constructing andmaintaining a flood control ditch, when the ownerestablished that erosion had occurred, the courtaffirmed an award for the diminution in the fairmarket value of the land, the diminished rent, andthe cost of repairs to prevent further erosion.19

The fact-finder decides whether the injury istemporary or permanent.20 If either of the measureswill fully compensate the owner, some case law sug-gests that the measure that is more definite and cer-tain and less expensive to the wrongdoer must beadopted.21 However, recent authority indicates thatthe appropriate measure of damages requires con-sideration of the owner’s current use or intendeduse of the land.22 To the extent that the owner had a

personal use for the land and a bona fide desire torepair or restore the land to its pre-injury condition,the court is more likely to view the injury as tempo-rary in nature and award replacement or restora-tion costs. Even in the instance of industrial or com-mercial property, restoration, if technologically pos-sible, appears to have become in the view of thecourts, the preferred remedy.23 Such an awardmight be appropriate even if the tortious conductincreased the market value of the land when meas-ured objectively. If the damages are temporary innature, the change in fair market value is not evenadmissible evidence,24 for the fact finder is only toconsider repair and restoration costs.

Whether the amount of restoration damagesshould be capped at the value of the property priorto injury, or by some other standards, is unresolved.An award of restoration costs that would exceed thepre-injury value of the land might be viewed as eco-nomic waste and therefore inappropriate.25

However, no Arkansas case law has actually cappedrestoration damages in such a fashion.26 Older casesmay have reached that result, sub silento, by callingthe injury permanent and assessing the damages aschange in fair market value.

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17. Highland Industrial Park, Inc. v. BEI Defense Systems Co., 192 F. Supp. 942 (W.D. Ark. 2002); Benton Gravel Co. v.Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).

18. Ross & Ross v. St. Louis, I. M. & S. Ry. Co., 120 Ark. 264, 179 S.W. 353 (1915).

19. E. Ritter & Co. v. Dep’t of the Army, Corps of Engineers, 874 F.2d 1236 (8th Cir. 1989).

20. Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).

21. Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).

22. Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). See Bonds v. Sanchez–O’Brien Oil & Gas Co., 289 Ark. 582,715 S.W.2d 444 (1986) (current trend in oil and gas leases is to place burden of restoration costs on lessee).

23. Highland Industrial Park, Inc. v. BEI Defense Systems Co., 192 F. Supp. 942 (W.D. Ark. 2002) (lessee damaged the landby dumping and burning hazardous wastes and thus polluting the groundwater.

24. State of Arkansas v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2003); Fox v. Nally, 34 Ark. App. 94, 805 S.W.2d 661 (1991).

25. See § 4–9, supra.

26. Highland Industrial Park, Inc. v. BEI Defense Systems Co., 192 F. Supp. 942 (W.D. Ark. 2002).

REAL PROPERTY

§§ 3300––22.. DDaammaaggee ttoo iimmpprroovveemmeennttss

If the improvements to the land are destroyed,the proper measure of recovery is the replacementvalue of the improvements,1 at least when the prop-erty destroyed can be replaced in substantially thesame condition.2 The age, condition, and depreciatedvalue of the destroyed building must be considered.3

For example, the measure of damages for destruc-tion of a fence is not the total cost of replacement,but the cost of replacement of the fence in substan-tially the same condition that existed whendestroyed, that is, an old fence.4

If the improvements to the land are only dam-aged, the plaintiff is entitled to the costs of restora-tion, assuming the property can be restored to sub-stantially the same condition it was in immediatelybefore the damage occurred.5 No Arkansas law dis-cusses whether there is a cap on the amount ofrepairs; that is, whether an award in excess of theoriginal value of the improvement would be econom-ic waste.6 Repair costs are particularly appropriatewhen the owner has a personal reason, as opposedto a merely commercial objective, for the restorationof the improvements. Unlike other jurisdictions, noArkansas cases discuss “stigma” damages, the addi-tional diminution in value connected with the

improvements even after repairs or restoration havebeen completed. Such damages may be particularlyappropriate in cases involving numerous construc-tion defects, termite infestation, or the presence ofmold.7

The owner is also entitled to compensation forloss of use, measured by rental or usable value, dur-ing the time that he was deprived of the use of thedestroyed or damaged improvement.8 For example,when negligence by a utility company caused dam-ages to a motel, the motel owners were entitled to,among other elements, loss of rental value of themotel for five months following the fire.9

Evidence in support of the proper measure ofdamages is essential to the case. For example, whenresidential rental cabins were negligentlydestroyed, the plaintiff offered evidence only as totheir net rental value.10 In the absence of proof of thechange in market value or the cost of replacement, adirected verdict for the defendant was proper.

§§ 3300––33.. DDaammaaggee ttoo ttrreeeess

Trees, shrubs, greenery, and similar landscapingmay be an important aspect to the value of the landitself. Accordingly, upon the destruction of ornamen-

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§ 30-22 Damage to improvements

1. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992) (evidence demonstrated that mobile home hadno value after sewer system back-up); Standridge v. Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981).

2. Bush v. Taylor, 130 Ark. 522, 197 S.W. 1172 (1917). See the related cases on damages for breach of a construction con-tract in § 17–3, supra.

3. Missouri Pac. R. Co. v. Wood, 165 Ark. 240, 263 S.W. 964 (1924).

4. Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).

5. Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993) (reasonable expense of necessary repairs to theproperty); Cy Carney Appliance Company, Inc. v. True, 226 Ark. 961, 295 S.W.2d 768 (1956).

6. See § 4-9 supra.

7. For a discussion of liability issues and damages to structures caused by mold, see Walter G. Wright, Jr. and StephanieM. Irby, The Transactional Challenges Posed by Mold: Risk Management and Allocation Issues, 56 ARK. L. REV. 295, 347-371(2003).


9. Arkansas-Missouri Power Co. v. Deal, 263 Ark. 645, 566 S.W.2d 747 (1978).


tal or shade trees, the use of the land must be con-sidered in determining the amount of damages.1 Forland that was to be used for residential purposes,the appropriate measure of damages is the cost ofrestoration or replacement of the trees.2

This rule reflects not only the owner’s intendeduse of the land, but also the aesthetic value of thetrees or shrubs, their role in establishing privacy,and the potential energy savings. Accordinglyreplacement costs have been awarded for thedestruction of 40 oak, pine, and dogwood trees, withdiameters of four to twelve inches, located on a res-idential lot;3 for the destruction of 21 hardwoodtrees forming the entrance to a three-acre residen-tial lot;4 for six pine and oak trees;5 for the loss of asingle post oak tree;6 and for 12 azalea bushes.7

Provided that the replacement or restoration costsare not grossly disproportionate to the fair marketvalue of the land prior to the destruction of thetrees, such costs should be awarded.8

However, some older cases follow the rule thatthe damages are measured by the change in marketvalue with and without the landscaping.9 In partic-ular, evidence that the trees contributed nothing tothe intended or likely use of the land wouldstrengthen an argument that replacement costs areinappropriate. Replacement costs are an inappro-priate measure of damages when they are grosslydisproportionate to the value of the land.10

Damage to trees may result from negligence,from innocent trespass, from intentional trespass,from willful and wanton conduct, and from inno-cently started fires. Depending on the underlyingcause of action, the statutes may permit double ortreble damages.11 In addition to the general dam-ages of replacement cost or the change in the fairmarket value, compensatory damages may alsoinclude clean-up costs, provided they do not overlapor permit a double recovery.12 However, an addition-al award for the stumpage value for the treesremoved. is not appropriate.

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10. Standridge v. Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981).§ 30-33 Damage to trees

1. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991) (intended use of land as trailer park); Floyd v. Richmond, 211Ark. 177, 199 S.W.2d 754 (1947) (destruction of 20 cedar trees on land particularly suitable for building sites).

2. Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991) (negligent chemical spraying damaged over 100 shade treesand fruit trees).

3. Bowman v. McFarlin, 1 Ark.App. 235, 615 S.W.2d 383 (1981). A landscaping expert testified as to the cost of replacementtrees four inches or less in diameter.

4. First Electric Cooperative Corp. v. Charette, 306 Ark. 105, 810 S.W.2d 500 (1991).

5. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991). Damages for the replacement cost of the trees were trebled pur-suant to statute. See § 30–8, infra.

6. White River Rural Water District v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992) (replacement value of approximately $7500based on government document).

7. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997).

8. First Electric Cooperative Corp. v. Charette, 306 Ark. 105, 810 S.W. 2d 500 (1991) (award of replacement cost of $8300was not grossly disproportionate to the fair market value of approximately $24,000).

9. Cy Carney Appliance Co. v. True, 226 Ark. 961, 295 S.W.2d 768 (1956) (appliance fire destroyed valuable shade trees atresidence); Kyle v. Zellner, 215 Ark. 349, 220 S.W.2d 806 (1949).

10. Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002) (329 trees removed from 4 acres of land, but were generallynot visible from residence and provided minimal value; replacement cost would be 67% of value of land).

11. See § 30–8, infra.

12. Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002).

REAL PROPERTY

§§ 3300––44.. DDaammaaggee ttoo ccrrooppss

When crops are damaged, the proper measure ofdamages is the difference in the fair market valuebetween the crop that the land would have producedand the crop that was actually produced, minus thesavings in producing, harvesting, and marketingthe actual crop.1 If the crop is destroyed totally, themeasure of damages is its market value at the timeof destruction.2 Again, any savings from not actual-ly harvesting or marketing the crop should reducethe recovery. These rules are applicable only if thecrop is sufficiently mature to have a market value.3

For example, six weeks after planting 190 acres,a crop of “knee-high” soybeans was flooded as aresult of a negligently maintained earthen dam,causing significant reduction in the yield of thecrop.4 Since a reasonable estimate could be made ofthe productivity of the acres and because evidence ofyields from comparable but non-flooded land waspresented, an award for the reduced yield was cor-rect. Similarly, when trespassing cattle damaged astrawberry patch just prior to maturity, an awardreflecting the decreased yield was appropriate.5

Damages for the decreased yield must be reduced bythe amount of any savings in harvesting and mar-keting. But such an offset would not be appropriateif the cost of harvesting the damaged crop wouldhave been the same for an undamaged crop.6

The fact-finder is to determine the probablevalue the crop would have had at maturity, if thenegligence of the defendant had not intervened.7 Indetermining the value of the crop that was damagedor destroyed, the court is to consider all circum-stances existing at the time of its destruction, or atany time prior to trial, that would be relevant to theincrease in the value of the crop and the expense orthe hazards of the farming industry.8 For example,evidence of changes in market prices or weatherconditions prior to harvesting might have affectedthe value and therefore would be arguably admissi-ble. Likewise, while the calculation for reducedvalue is typically based on the “spot” or “cash” pricefor crops sold on the open market when ready fordelivery, the increased reliance on “futures” con-tracts or bookings suggests that in some instancessuch contracts might be relevant and admissibleevidence.9

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§ 30-44 Damage to crops

1. Ark. Model Instruction (Civil 4th) 2226; Lowe v. E. I. DuPont de Nemours & Co., 802 F.2d 310 (8th Cir. 1986) (verdict of$53,040 for lowered crop yield affirmed). See McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996) (damages of $55,000 for cot-ton crop damaged by drifting herbicide but still marketable; citing text).

2. Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).

3. Moore v. City of Blytheville, 1 Ark.App. 35, 612 S.W.2d 327 (1981). See Brown v. Chapman Farms, Inc., 289 Ark. 88, 709S.W.2d 404 (1986) (evidence indicated that the yield would have been 12.3 bushels of soybeans per acre). For practical suggestionson proving market value, see David W. Cahoon, When Them Cotton Balls Get Rotten, ARK. LAWYER (July 1989) 117.

4. Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).

5. Crumbley v. Guthrie, 207 Ark. 875, 183 S.W.2d 47 (1944).

6. J. L. Wilson Farms, Inc. v. Wallace, 267 Ark. 643, 590 S.W.2d 42 (Ark. App.1979). A farmer testified that “it costs just asmuch to harvest a poor acre of beans as it does a good acre of beans.” Lowe v. E. I. DuPont de Nemours & Co., 802 F.2d 310 (8thCir. 1986).


8. Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). The damages to growing crops claimed by a tenantagainst a third party tortfeasor are limited to those suffered during the term of the leasehold estate. Burnette v. Morgan, 303 Ark.150, 794 S.W.2d 145 (1990) (damage to peach and apple orchard).

9. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996) (suggesting revised Model Jury Instructions).


In light of weather conditions and other factorsthat vary annually, evidence as to the average yieldper acre for the prior years is not reliable.10 On theother hand, a comparison between the damagedland and the yield from adjacent but undamagedland during the same season, for the same crop, andwith the same growing technique, is admissible andreliable evidence.11

If the crops are not sufficiently mature to meas-ure their value, the measure of damages is therental value of the land.12 Whether the crops aremature is a question for the fact-finder.13 The ownermay testify as to the condition of the crop in the fieldand its expected value.14 The evidence of damagesmust correspond to the maturity of the crop. Forexample, if the crops are too immature to have amarket value, evidence as to the rental value mustbe presented.15 However, such a limited recoverymay be far short of full compensation for a farmerwho expected to earn his livelihood from the landand who had major capital investments or debts infarm implements.

The destruction of the crop early in the growingseason may permit the planting of another crop. The

appropriate damages would then be the cost of re-seeding and replanting. As a result of the delayedplanting, the subsequent crop might have a reducedyield, for which the tortfeasor should be held liable.If the lateness of the season prevents the planting ofanother crop, the measure of damages is the rentalor usable value of the land for that growing season.16

The defendant who has prevented the planting ofany crop is liable, at a minimum, for the rentalvalue of the land.17

In the instance of grass or other perennial crops,the recoverable damages are the value of the grassor crop at the time of its destruction unless perma-nent injury to the soil or root structure hasoccurred,18 which is then compensable. In otherinstances, the fairer measure of damages is the costof reseeding or replanting and the rental value ofthe land from the time of the damage until it isrestored to its original condition.19

Under earlier law, the owner was entitled to pre-judgment interest on the value of the cropsdestroyed or damaged from the date of the injury.20

However, that result is questionable in light of the

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10. McCorkle Farms, Inc. v. Thompson, 79 Ark. App. 150, 84 S.W.3d 884 (2002) (reversible error to admit evidence of averageper acre yields of cotton in county over 10 year period); J. L. Wilson Farms, Inc. v. Wallace, 267 Ark. 643, 590 S.W.2d 42 (Ark.App.1979).

11. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996) (damages properly based on price received per pound for cottongrown on a nearby field); J. L. Wilson Farms, Inc. v. Wallace, 267 Ark. 643, 590 S.W.2d 42 (Ark. App. 1979).

12. Adams v. Adams, 228 Ark. 741, 310 S.W.2d 813 (1958).


14. Sullivan v. Voyles, 249 Ark. 948, 462 S.W.2d 454 (1971) (negligently applied chemicals damaged a “beautiful crop of toma-toes, squash and Irish potatoes”).

15. Moore v. City of Blytheville, 1 Ark.App. 35, 612 S.W.2d 327 (1981) (case remanded to permit evidence to be heard on thecorrect measure of damages).

16. Farm Bureau Lumber Corp. v. McMillan, 211 Ark. 951, 203 S.W.2d 398 (1947); St. Louis, I. M. & S. Ry. v. Saunders, 85Ark. 111, 107 S.W. 194 (1908).

17. Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965).

18. Farm Bureau Lumber Corp. v. McMillan, 211 Ark. 951, 203 S.W.2d 398 (1947).

19. Missouri Pac. R. Co. v. Benham, 192 Ark. 35, 89 S.W.2d 928 (1936).

20. Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979); St. Louis S. W. Ry. Co. v. Ellis, 169 Ark. 682, 276 S.W.996 (1925).

REAL PROPERTY

more recent rule that the amount of the loss must beascertainable at the time of the damage.21 Punitivedamages may be awarded against an intentionaltortfeasor.22

§§ 3300––55.. AAbbssoolluuttee lliiaabbiilliittyy

A property owner is absolutely liable for dam-ages that result from certain ultra-hazardous activ-ities.1 If the doctrine of absolute liability is applica-ble, the injured party need not prove negligence.2

Regardless of the degree of care used by the proper-ty owner, he is liable for the consequences proxi-

mately caused.3 Without causation, recovery isbarred.4 Recognizing that strict liability is a harshdoctrine, the court has stressed that it is applicableonly in very limited situations.5

An activity is ultra-hazardous if it necessarilyinvolves risk of serious harm to persons or property,which cannot be eliminated by the exercise ofutmost care, and is not an activity customarily car-ried on by many people in the community.6 Althoughthe spraying of chemicals on crops may be ultra-haz-ardous,7 the construction and maintenance of a bill-board sign8 and the operation of a lawn sprinklingsystem are not.9

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21. See Chapter 10, supra.

22. Brown v. Chapman Farms, Inc., 289 Ark. 88, 709 S.W.2d 404 (1986) (intentional destruction of 187 acres of soybeans sup-ported compensatory damages of $26,202 and punitive damages of $55,000). See Schrader v. Schrader, 81 Ark. App.343, 101S.W.3d 873 (2003) (statutory treble damages assessed against neighbor who had intentionally driven through vegetable gardenand destroyed crops).

§ 30-55 Absolute liability

1. The historical development of the doctrine, commencing with Rylands v. Fletcher, L. R. 3 H. L. 330 (1868), is reviewed inNorth Little Rock Transportation Co., Inc. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967). See also Jacob Sharp, Jr., AbsoluteLiability in Arkansas, 8 ARK. L. REV. 83 (1953).

The federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, also known as Superfundor CERCLA, imposes liability for clean-up expenses and costs on those connected with the release of hazardous wastes or associ-ated with the contaminated sites. See Greg Yeatman, Superfunds: A Few Basic Concerns, 24 ARK. LAWYER 31 (April 1990).

2. Western Geophysical Co. of America v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966). Compare Wirth v. Reynolds MetalsCo., 58 Ark.App. 161, 947 S.W.2d 401 (1997) (water well went dry after gas well was dug on adjacent property; summary judgmentfor owner of gas well).


4. Hampton v. Arkansas Louisiana Gas Co., 282 Ark. 580, 669 S.W.2d 476 (1984).

5. Carroll-Boone Water Dist. v. M. & P. Equip. Co., 280 Ark. 560, 661 S.W.2d 345 (1983). See Arkansas Louisiana Gas Co. v.Central Util. Const., Inc., 278 Ark. 101, 643 S.W.2d 566 (1982) (court refused to apply absolute liability against a contractor whohad damaged an underground utility line; since the utility company had some degree of fault, negligence was the proper theory).

6. Tri-B Advertising Co. v. Thomas, 278 Ark. 58, 643 S.W.2d 547 (1982).

7. Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949); McCorkle Farms, Inc. v. Thompson, 79 Ark. App. 150,S.W.3d 884 (2002).

8. Tri-B Advertising Co. v. Thomas, 278 Ark. 58, 643 S.W.2d 547 (1982).

9. North Little Rock Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967).


For example, the party responsible for subsur-face blasting was held responsible for the damage toa neighbor’s water well.10 But the doctrine ofabsolute liability is not available to a landownerwho, knowingly, consents to blasting on the proper-ty.11 The plaintiff in a blasting case may also relyupon a negligence theory by establishing that theresults of the blast would not have occurred underordinary circumstances unless the blasting was neg-ligently done.12 The calculation of general damageswill depend upon the temporary or permanentnature of the injury.13

Any person who intentionally starts a fire ongrass or on other combustible material on his prop-erty is liable for the damage resulting to another’sproperty.14 However, the owner is not liable if, beforestarting the fire, he notifies other owners of hisplans and then exercises due care in preventing thefire from spreading.15 If the notice is not given, the

owner is absolutely liable for intentionally startinga fire on his property that causes damage to anoth-er’s.16

Arkansas law authorizes double damagesagainst a party who starts a fire and fails to controlit.17 The complaint must state a prayer for doubledamages; otherwise, the court cannot award them.More than mere negligence may be required to sus-tain an award of double damages.18

§§ 3300––66.. TTrreessppaassss oonn rreeaall pprrooppeerrttyy

According to the common law, a trespass is anyentry on land that is in the peaceable possession ofanother, regardless of the willfulness of the entry,the degree of force used, the duration of the intrud-ing presence, and the absence of damage to the land.For trespass to land, at least nominal damages areusually awarded.1

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10. Western Geophysical Co. of America v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966).

11. Carroll-Boone Water Dist. v. M. & P. Equip. Co., 280 Ark. 560, 661 S.W.2d 345 (1983).

12. Northside Const. Co. v. Huffman, 287 Ark. 145, 697 S.W.2d 89 (1985) (blasting resulted in the drying up of naturalsprings). See also Holden v. Carmean, 178 Ark. 375, 10 S.W.2d 865 (1928) (user of explosives is held to the highest standard ofcare).

13. See § 30–1, supra; Western Geophysical Co. of America v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966) (permanent dam-age resulted in decreased fair market value).

14. ARK. CODE ANN. § 18–60–103(a).

15. ARK. CODE ANN. § 18–60–103(b).

16. Swearengen v. Johns, 210 Ark. 119, 194 S.W.2d 445 (1946).

17. ARK. CODE ANN. § 20–22–304.

18. Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996).

§ 30-66 Trespass on Real Property

1. Pennington v. Woods, 204 Ark. 26, 161 S.W.2d 16 (1942) ($10 for unauthorized entry). On nominal damages, see Chapter3, supra. Criminal trespass is committed by an individual purposefully entering or unlawfully remaining upon the premises ofanother. ARK. CODE ANN. § 5–39–203. In addition, a person who enters a public place of business and refuses to leave despite a

REAL PROPERTY

The general measure of damages against a partywho trespasses upon land is the fair rental value ofthe land. Obviously, in the instance of a brief or lim-ited trespass, the award will be minimal. The samemeasure also applies to a repeated trespass whichhappens periodically, for example, annually duringa hunting season. Likewise it will apply to a contin-uing trespass, in the sense of a defendant who occu-pies the land.2

A trespasser who occupies land or a buildingwithout permission is liable for the fair rental valueof the property. The owner is entitled to damageseven if the owner was not intending to rent the land,even if the land was not harmed, and even if theowner lacked knowledge of the occupation. The pur-pose behind the award is to compensate the ownerfor his loss of the potential use and enjoyment of hisland. In an unusual case, the defendant had permis-sion to use an underground tunnel to transport coalfrom one tract but improperly transported coal fromanother tract as well; the wrong was in the natureof a trespass. Since any diminution in the value ofthe tunnel was de minimis, the recovery was meas-

ured by the fair rental value of the tunnel for thesepurposes.3

In addition to that general measure of damages,special damages may also be appropriate againstthe occasional, the repeated, or the continuing tres-passer. For example, those special damages mightinclude the cost of removing debris or property lefton the land and the cost of restoring the land to thesame condition that it was in prior to the trespass.4

Whether there is a cap on restoration damages, notto exceed the actual value of the land or anothermeasure, is unresolved. Damages that are tempo-rary in nature and which will be repaired or correct-ed by the landowner should not be limited.5 Even inthe instance of commercial property that may not berestored, some recent authority supports restorationcosts.6

A trespasser is liable for all damages that proxi-mately result from the illegal act, regardless ofwhether the entry is willful or negligent.7 For exam-ple, if the trespass causes physical injury to theowner, recovery for those injuries is permitted.8 Ifthe trespass was willful, then compensation for

18

request commits a trespass. ARK. CODE ANN. § 4–70–101(c). The latter statute may be used by a discount store to expel a competi-tor’s employees who are comparing prices. Culhane v. State, 282 Ark. 286, 668 S.W.2d 24 (1984).

2. DeLaughter v. Britt, 243 Ark. 40, 47, 418 S.W.2d 638, 642 (1967) (dissenting opinion by Fogelman, J.).

A continuing trespass negligently caused by a government may rise to the level of inverse condemnation, resulting in com-pensation pursuant to the eminent domain power. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990) (nine years oftrespass due to negligently maintained sewerage system). See § 18–6, supra.

3. Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S.W.2d 728 (1944).

4. Kutait v. O’Roark, 305 Ark. 538, 809 S.W. 2d 371 (1991); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W. 2d 687 (1990) (dam-ages based on removal of stumps and debris and repair of soil).

5. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002) (award of restoration costs of $200,000 were appro-priate even though the value of the property was only $52,000; repairs had been mandated by state agency).

6. See § 30-1, supra.

7. See Farm Bureau Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982) (use of matches by trespassing childrencaused extensive damage to a gift shop; question of fact for the jury whether a six-year-old child may be a trespasser).

As with all damage actions, mitigation of losses is essential. For example, when trespassing cattle destroyed crops, theplaintiff could recover only for those damages he could not have avoided by reasonable use of available resources. Ft. SmithSuburban Ry. Co. v. Maledon, 78 Ark. 366, 95 S.W. 472 (1906).

8. Boyd v. Fulton, 212 Ark. 555, 206 S.W.2d 753 (1947).


mental anguish accompanying the physical injurywould also be authorized.9 Punitive damages mayalso be awarded for trespass,10 but only if actualdamages are recovered.11

If the trespass is continuing or permanent innature, the land owner may seek injunctive relief toend the trespass, claiming that a simple award ofdamages is inadequate. Recognizing that each par-cel of land is unique, equity has been willing togrant or at least to consider injunctive relief.12 Forexample, the remedy against an encroaching struc-ture is typically a mandatory injunction compellingthe owner to remove the portion of the structure

that crosses the boundary line.13 However, if equityin its discretion denies such a harsh remedy, dam-ages for the continuing trespass may beappropriate.14

An alternative measure of recovery would berestitutionary in nature. Suppose the trespasseroccupied the land and profited (by conducting a tem-porary, but valuable enterprise) or benefitted fromsavings (for example, by depositing hazardouswastes on the land). Rather than seek the fair rentalvalue, the owner might elect to “waive the tort and

sue in assumpsit.” In contemporary terminology, theowner would assert a claim based on unjust enrich-ment and seek the profits or savings of the trespass-er.15 In addition, equity might issue a mandatoryinjunction compelling the trespasser to removedebris or to restore the land.

An action seeking damages for trespass to realproperty must be brought within three years of thetrespass.16 That rule certainly applies to trespassesthat are permanent or cause permanent damages.This claim is barred if not brought withing threeyears. The inability to ascertain the trespass or theextent of the injury may toll the running of thestatute under the discovery rule.17

Most trespasses cause only temporary damages,particularly with the broadened definitionof temporary damages as those that are capable ofbeing abated or remedied. Accordingly, since a con-tinuing trespass occurs again each new day, dam-ages arising from multiple and repeated occurrences(for example, flooding that occurs periodically18 orthe misuse of another’s tunnel system,)19 are limitedto those suffered within the three years immediate-ly prior to the commencement of the action.20

19

9. Boyd v. Fulton, 212 Ark. 555, 206 S.W.2d 753 (1947). See § 4–7, supra.

10. McGlone v. Stokes, 193 Ark. 1008, 104 S.W.2d 191 (1937) (trespass included excavation of dirt from plaintiff’s property).

11. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979).

12. Howard W. Brill, Equity: Real Property and the Problem of the Troublesome Neighbor, 1994 ARK. L. NOTES 1.

13. Smith v. Stewart, 10 Ark.App. 201, 662 S.W.2d 202 (1983).

14. Stuttgart Elec. Co., Inc. v. Riceland Seed Co., 33 Ark.App. 108, 802 S.W.2d 484 (1991) (warehouse encroached 2.3 feet;denial of injunction or easement, but compensatory damages of $1000).

15. See § 31–2, infra.

16. ARK. CODE ANN. § 16-56-105(4). See § 13-5, supra.

17. State of Arkansas v. Diamond Lakes Oil Company, 347 Ark. 618, 66 S.W. 3d 613 (2002).

18. Missouri Pacific Ry. Co. v. Holman, 204 Ark. 11, 160 S.W. 2d 499 (1942).

19. Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S.W. 2d 728 (1944).

20. See Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W. 2d 150 (1990).

REAL PROPERTY

However, other trespasses that result in tempo-rary damages are continuing in nature. Once theinvasion of the land occurs, it continues, whether inthe form of a vehicle abandoned on another’s prop-erty,21 a wall encroaching on the neighbor’s land, orthe unauthorized deposit of toxic wastes.The trespass occurs on the date of the first invasionor injury, but the failure of the defendant to removethe continuing trespass tolls the running of the stat-ue of limitations. Therefore, a landowner was per-mitted to proceed against an oil company that hadimproperly used the land for disposing of oil fieldwastes, even though the oil company’s activity onthe land had ceased more than 50 years prior to thecommencement of the action.22

§§ 3300––77.. PPrreemmiisseess lliiaabbiilliittyy

In addressing the situation where the partyentering upon the land of another is injured, theArkansas courts adhere to the common law distinc-tions between the duties owed to trespassers,licensees, and invitees.1 A trespasser is a person whoenters upon the premises of another without theconsent of the owner and without an invitation,either express or implied.2 The owner of the proper-ty has no duty to trespassers on his land as long ashe is unaware of their presence.3 At that point, theowner owes the trespasser only the minimal dutynot to cause injury by willful or wanton conduct.4

An exception to the general rule that landown-ers are not liable to trespassers is found in the

20

21. Coleman v. United Fence Company, 282 Ark. 344, 668 S.W. 2d 536 (1984) (dicta).

22. Sewell v. Phillips Petroleum Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002)

§ 30-77 Premises Liability

1. Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988).

2. Ark. Model Instruction (Civil 4th) 1107; Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984) (person whoparked his car on private property without permission was trespasser).

Courts have struggled with the issue of how to classify public safety officers. See Karen K. Wood, Note, Arkansas Adoptsthe Fireman’s Rule: Do Volunteer Firefighters Get Burned Twice? 50 ARK. L. REV. 363 (1997). The Fireman’s Rule, also known asthe professional rescuer doctrine, provides that a private party whose negligence causes a fire has no duty to protect the firefight-er. Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995) (volunteer firefighter).

3. Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969).

This common law rule is now incorporated in the statutes. Act 581 of 1993, codified as ARK. CODE ANN. § 18–60–108(a),provides that “an owner, lessee, or occupant of land does not owe a duty of care to a trespasser on the land, and is not liable forany injury to a trespasser on the land, and no cause of action shall arise against the owner, lessee, or occupant of land until thepresence of the trespasser on the premises is known and then the owner, lessee or occupant of the land shall be liable only forinjuries caused by the willful or wanton misconduct of the owner, lessee, or occupant.”

The possessor of land adjacent to a street or highway has a duty to prevent dangerous conditions from occurring on hisproperty that might cause injury to individuals leaving the roadway. However, if the dangerous condition preceded the construc-tion of the roadway or if the roadway created the dangerous condition, then the duty to prevent injury rests upon the party respon-sible for maintaining the road. 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992).

4. Ark. Model Instruction (Civil 4th) 1102. Ark. Model Instruction (Civil 3rd) 1101 describes willful or wanton conduct as “acourse of action which shows an actual or deliberate intention to harm or which, if not intentional, shows an utter indifference toor conscious disregard for the safety of others.”


attractive nuisance doctrine. This doctrine holdsthat a landowner who has upon his premises a con-dition, object, instrumentality, or machine that isdangerous to children of “tender years” has a dutyto exercise due care to protect them.5 The duty aris-es when the owner knows, or should reasonablyknow, that children are attracted to the land or theobject.6 The duty applies only if the child is tooyoung to appreciate the nature of the risk and is tooyoung to avoid the risk.7 For example, the doctrinewas applicable when a train crew started a fire andleft it unattended, knowing that an unsupervisedfive-year-old child was present at the fire.8

The doctrine of attractive nuisance gives specialprotection to children of “tender years.” The trialcourt is to apply the factors of age, intelligence, andexperience to determine whether the injured child

acted as a reasonably careful child of that age andintelligence would have acted.9 Ordinarily, thematurity or immaturity of the injured child is aquestion of fact for the jury.10 Arkansas courts havegenerally been reluctant to extend the doctrine.11

Perils or conditions that are obvious to children whoare old enough to be unattended do not create a sit-uation for the application of the doctrine.12

Accordingly, the attractive nuisance doctrine is notapplicable to ponds, either natural or artificial,13 orto buildings under construction.14

A licensee enters the property with the consentof the owner, but for his own benefit, pleasure, orconvenience. The consent of the owner may beexpress or implied from the circumstances.15 A socialguest is a typical licensee,16 as are individuals mak-

21

5. Cooper v. Diesel Service, Inc., 254 Ark. 743, 496 S.W.2d 383 (1973); Carmichael v. Little Rock Housing Authority, 227 Ark.470, 299 S.W. 2d 198 (1957) (natural pond not an attractive nuisance). ARK. CODE ANN. § 18–60–108(b), discussed in note 3, supra,does not affect the attractive nuisance doctrine, except that the doctrine cannot be applied to determine liability against an owneror occupant of agricultural land in favor of a trespasser over the age of 18.

6. See James H. McKenzie, Note, Torts—Peddler’s Truck as Attractive Nuisance, 18 ARK. L. REV. 178 (1964).

7. Crawford v. Cox Planing Mill & Lumber Co., Inc., 238 Ark. 588, 383 S.W.2d 291 (1964). An additional factor may be therelative cost of remedying the dangerous condition in comparison to the risk of harm to children. See Ark. Model Instruction (Civil4th) 1109.

8. Missouri Pacific R. R. Co. v. Lester, 219 Ark. 413, 242 S.W.2d 714 (1951).

9. Baucom v. City of North Little Rock, 249 Ark. 848, 462 S.W.2d 229 (1971) (14–year-old boy injured while playing withstorm sewer system not entitled to benefit of doctrine); Burris v. Carroll Electric Cooperative Corp., 220 Ark. 294, 247 S.W.2d 490(1952) (11–year-old boy injured by climbing pole and touching high voltage line); Garrett v. Arkansas Power & Light Co., 218 Ark.575, 237 S.W.2d 895 (1951) (17–year-old injured while playing on high power lines not entitled to doctrine).

10. Missouri Pacific R. R. Co. v. Lester, 219 Ark. 413, 242 S.W.2d 714 (1951).

11. See James H. McKenzie, Case Note, Torts—Peddler’s Truck as Attractive Nuisance, 18 Ark.L.Rev. 178 (1964).

12. Crawford v. Cox Planing Mill & Lumber Co., 238 Ark. 588, 383 S.W.2d 291 (1964).

13. Cooper v. Diesel Service, Inc., 254 Ark. 743, 496 S.W.2d 383 (1973); Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465 (1964).Compare Poston v. Fears, 318 Ark. 659, 887 S.W.2d 520 (1994) (unanswered question of applicability of attractive nuisance doc-trine in relation to young children and residential swimming pools).

14. Crawford v. Cox Planing Mill & Lumber Co., 238 Ark. 588, 383 S.W.2d 291 (1964).

15. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993) (repairman). See Ark. Model Instruction (Civil 4th) 1107.

16. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998) (dinner guest was a licensee); Turner v. Stewart, 330 Ark. 134, 952S.W.2d 156 (1997) (person who entered friend’s premises to borrow card tables was a licensee); Bader v. Lawson, 320 Ark. 561, 898

REAL PROPERTY

ing permissive use of land crossings17 The status ofother visitors to the premises may present factualissues.18 As in the case of the trespasser, the owneris under no duty to inspect the property to deter-mine whether it is safe.19

Once the presence of the licensee is known, orreasonably should be known, the owner is under aduty not to cause the licensee injury by willful andwanton conduct.20 Upon discovering that the licens-ee is in a position of danger, the owner is under anenhanced duty to exercise reasonable and ordinarycare.21 Additionally, the landowner may owe the

licensee a duty to warn him of hidden dangers thatthe licensee might not recognize.22

An invitee enters the property with the permis-sion of the owner, for a purpose connected with anactivity of the owner, and for the mutual benefit ofboth parties.23 A customer on business premises isthe classic invitee,24 but workers25 and prospectiveemployees26 also fall into this category. A related doc-trine is that of the implied invitee, which requiresan affirmative act by the landowner to induceanother to enter the premises.27 In some instances,the duty of an owner to an invitee may even extend

22

S.W.2d 40 (1995) (eight-year-old girl jumping on neighbors’ trampoline was licensee); Young v. Paxton, 316 Ark. 655, 873 S.W.2d546 (1994) (guest helped owner cut tree limbs); Gilliam v. Thompson, 313 Ark. 698, 856 S.W.2d 877 (1993) (plaintiff was visitor tonephew’s apartment); Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991) (live-in companion was a licensee, even though shecontributed to household expenses).

17. Aluminum Co. of America v. Guthrie, 303 Ark. 177, 181, 793 S.W.2d 785, 787 (1990) (Hays, J., dissenting).

18. Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 841 S.W.2d 609 (1992) (jury question as to whetheremployee who was using company whirlpool facility on personal time was a licensee or invitee).

19. Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968).


21. See Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995); Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988) (11–year-old visitor in defendant’s home injured when rung of stool broke).

22. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998) (owner had duty to warn guest of unusually slippery bathroom floor);Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992) (evidence supported finding that visitor to dairy farm was a licensee ina position of danger from farm equipment); King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990) (no duty to warn licensee of thepresence of shoes on the front porch).

23. Shrum v. Southern Farm Casualty Ins. Co., 312 Ark. 151, 848 S.W.2d 395 (1993); Ark. Model Instruction (Civil 4th) 1107.

An invitee who strays from the limitations or boundaries of the original invitation loses the protection of that status andbecomes a licensee or trespasser. Daniel Construction Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979).

24. Shrum v. Southern Farm Casualty Ins. Co., 312 Ark. 151, 848 S.W.2d 395 (1993) (policy holder visiting office of insuranceagent). See also Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990) (accident in parking lot of business).

25. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991).

26. J. M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989).

27. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992) (evidence supported conclusion that visitor to farm who volun-teered to help with equipment was an implied invitee); Aluminum Co. of America v. Guthrie, 303 Ark. 177, 793 S.W.2d 785 (1990)(mere acquiescence in public’s occasional use of private bridge was not sufficient to reach the level of an implied invitation).


beyond the boundaries of the owner’s property.28 Tothe invitee the owner owes the higher duty of usingordinary care to keep the premises in a reasonablysafe condition.29 To recover from the owner becauseof a failure to use ordinary care, the invitee mustshow that (1) the premises were defective; (2) theowner created the defect, or the defect was apparentto a reasonable owner who should have then warnedthe invitee; and (3) the defect caused the injury.30

The owner’s increased duty to an invitee doesnot mean that the owner is absolutely liable for anyinjury to the invitee.31 For example, in the typical

“slip and fall” case, the mere accident does not cre-ate an inference of negligence.32 Nor is a case of neg-ligence established by the plaintiff’s testimony thatthe floor was slick or slippery.33 The plaintiff mustoffer evidence demonstrating the probable causes ofthe accident, not merely possible causes.34 The cus-tomer/invitee has the burden of showing that thepresence of the substance or object on the floor wasthe result of the negligence of the defendant.35 In thealternative, the customer must establish that thesubstance had been on the floor for such a period oftime that the defendant knew or should have known

23

28. Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980) (invitee fell on the parking lot of a third party while entering defen-dant’s restaurant).

29. Ark. Model Instruction (Civil 4th) 1104; Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991) (no breach of duty of ordinarycare when maid in private residence was bitten by brown recluse spider); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782(1989).

30. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993) (action by injured repairman failed because homeowner had noknowledge of defective wiring).

31. Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968) (mere evidence that victim had slipped on puddle of water insidestore did not require submission of case to jury). Some owners are given special protection, for example, ARK. CODE ANN.§ 18–60–107 (landowner who permits individuals to enter his premises to glean, pick, or purchase agricultural products).

32. Alexander v. Town and Country Discount Foods, Inc., 316 Ark. 446, 872 S.W.2d 390 (1994) (res ipsa loquitur not applica-ble in slip and fall cases); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989).

33. Black v. Wal–Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994); J. M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544,780 S.W.2d 554 (1989). Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).

34. Morehart v. Dillard Dept Stores, 322 Ark. 290, 908 S.W.2d 331 (1995) (no evidence that ramp was defective or that any-thing on it caused fall); Mankey v. Wal–Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Trent v. KMS, Inc., 55 Ark.App. 355,935 S.W.2d 6 (1996) (allegation that improper application of asphalt caused plaintiff to slip on incline).

35. Ark. Model Instruction (Civil 4th) 1106. Newberg v. Next Level Events, Inc., 82 Ark. App. 1, 110 S.W. 3d 332 (2003) (ques-tion of fact as to whether owner had improperly applied wax to floor, and thereby caused fall of plaintiff); Conagra, Inc. v. Strother,340 Ark. 672, 13 S.W.3d 150 (2000) (owner had temporarily removed safety mats from slippery hallway; jury verdict for plaintiffaffirmed); Shrum v. Southern Farm Casualty Ins. Co., 312 Ark. 151, 848 S.W.2d 395 (1993) (jury question presented by evidenceas to soap on bathroom floor); Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987) (allegation that soapy wateron floor was result of negligent car wash operation); Martin v. Hearn Spurlock, Inc., 73 Ark. App. 276, 43 S.W.3d 166 (2001) (juryquestion as to whether mopping floors in convenience store demonstrated negligence by owner).

Compare Thompson v. American Drug Stores, Inc., 326 Ark. 536, 932 S.W.2d 333 (1996) (allegation that wrong type of waxwas used on floor; jury verdict for store); Lytle v. Wal–Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992) (allegation that storewas negligent in placing Bart Simpson school folders on top shelf, causing customer to climb on shelf and be injured, did not pres-ent jury question; likewise, alleged inattentiveness or discourtesy of store employee did not violate duty of using ordinary care);Macom v. Wal–Mart Stores, Inc., 305 Ark. 544, 809 S.W.2d 819 (1991) (store not liable for customer’s fall on a red ink pen in aisle;no evidence that store’s clean-up policy fell short of the duty of ordinary care).

It is important to remember that a defendant, in moving for summary judgment, has the burden of showing that no gen-uine issue of material fact exists. See Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997) (summary judg-

REAL PROPERTY

of its presence and that the defendant failed to useordinary care to remove the substance.36

The burden is on the plaintiff to demonstratethat the length of time the substance was on thefloor was substantial.37 For example, the presence ofwater in an aisle of a grocery store for an hour wasinadequate to establish that any employee of thedefendant knew of its presence.38 Lacking evidenceof either alternative approach, the plaintiff’s claimmust fail.39

If, however, the slippery condition that causedthe accident is not an isolated incident, but has been

recurring or on-going, the legal analysis is simplywhether the owner used ordinary care to keep hispremises safe. For example, evidence that the storemanagement knew fruits and vegetables were fre-quently on the floor of the produce section support-ed a verdict that the store failed to exercise reason-able care toward its customers.40

Because of his superior knowledge of unreason-able risks,41 the owner of property has a duty towarn the invitee of a dangerous condition or defect.However, that duty does not apply to conditions that

24

ment for defendant reversed; plaintiff offered evidence that accident was caused by construction dust left on airport terminal cor-ridor as result of negligence).

36. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001) (evidence that medical clinic knew ofwater on the floor and failed to take corrective action); Wal–Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991) (storeliable for injury caused by puddles of rainwater inside door when employees failed to remove water or warn customers). Underthis alternative approach, the foreign substance is typically not under the exclusive control of the owner of the premises, and wasbrought into the store by another customer or other third party. See the dissent by Judge Pittman in Tomlin v. Wal-Mart Stores,Inc., 81 Ark. App. 198, 100 S.W. 3d 57 (2003).

37. Wal-Mart Stores, Inc. v. Regions Bank Trust Department , 347 Ark. 826, 69 S.W. 3d 20 (2002) (evidence that liquid fromsnow globe had been on floor for a substantial time); Harvey v. Wal–Mart Stores, Inc., 33 F.3d 969 (8th Cir. 1994) (no evidence asto how long a yellow, dried, crusty and dirty substance had been on the floor); Wilson v. J. Wade Quinn Co., Inc., 330 Ark. 306, 952S.W.2d 167 (1997) (summary judgment for defendant reversed; jury question as to how long substance had been on floor andwhether store employees knew of its presence); Mankey v. Wal–Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993) (no evidenceas to how long motor oil was on the floor); Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991) (customer failed toshow that the water was on the floor long enough that bank employees should have been expected to remove it).

38. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). See House v. Wal–Mart Stores, Inc., 316 Ark. 221,872 S.W.2d 52 (1994) (strong pine odor was not sufficient to create an inference that employees knew of presence of disinfectanton the floor).

The presence of an employee in the vicinity prior to the accident is not sufficient evidence of negligence. Wal–Mart Stores,Inc. v. Bernard, 69 Ark.App. 238, 10 S.W.3d 915 (2000) (slipped on water in restroom; jury verdict for plaintiff reversed).

39. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992) (no evidence that alleged tobacco juice on floor was the result ofdefendant’s negligence or that it had been on the floor for a period of time); Dye v. Wal–Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d861 (1989); Tomlin v. Wal-Mart Stores, Inc., 81 Ark. App.198, 100 S.W.3d 57 (2003) (no evidence how long strapping band had beenon floor; jury verdict for plaintiff reversed); Fred’s Stores of Tennessee, Inc. v. Brooks, 66 Ark. App. 38, 987 S.W.2d 287 (1999) (juryverdict for customer reversed; no evidence that defendant had negligently caused hair gel to be on floor, or to its length of time onthe floor).

40. Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203, 29 S.W.3d 742 (2000). Compare Rodgers v. La Quinta Motor Inn, 316Ark. 644, 873 S.W.2d 551 (1994) (motel guest bitten by brown recluse spider; motel had used ordinary care in spraying with insec-ticide and had no prior knowledge); Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993) (mere evidence that steps were“narrow” and stairwell was “hot” was insufficient to support jury verdict of negligence in claim for injuries suffered in fall).

41. Van Deveer v. RTJ, Inc., 81 Ark. 379, 101 S.W.3d 881 (2003) (jury question as to whether dangerous condition of stairswas open and obvious, and whether invitee had knowledge).


are obvious.42 Under the obvious danger rule, anyduty owed by the owner to a business invitee ends ifthe invitee knows of the danger, unless the invitee isrequired to encounter the danger.43 A duty may existto an invitee who is required to encounter the dan-ger in order to perform a task.44

As a general proposition, the owner of the prem-ises is not liable for injuries caused to an invitee bythe unauthorized or criminal acts of third parties.45

However, if such acts were foreseeable, the ownermay be under a duty to give warnings or take otherreasonable steps.46 Similarly, the owner may assumea duty of care even if the law does not mandate aduty.47 The owner is not liable for injuries sufferedon the premises that are not causally related to thecondition of the premises.48

In an attempt to encourage landowners to makeland and water areas available to the public, statu-

tory law limits their potential liability toward per-sons who enter for recreational purposes.49 Theowner of land has no duty to keep the premises safeor warn of the presence of a dangerous condition oractivity.50 By permitting the guest to come on thepremises for recreational purposes, the landownerdoes not thereby give any assurance that the land issafe for any purposes, nor confer on that person thestatus of an invitee or licensee.51

The statute does not change any common lawliability that exists for malicious, but not mere neg-ligent, failure to guard or warn against an ultra-hazardous condition, structure, or activity that isactually known to the owner to be dangerous. Nor isliability altered when injury is suffered in anyinstance where the landowner charges an admissionprice or fee for permission to go on the land.52

25

42. Like v. Pierce, 326 Ark. 802, 934 S.W.2d 223 (1996) (customer injured stepping onto gravel walkway; summary judgmentfor owner); Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995) (ramp into grocery store was equally obvious tocustomer).

43. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W. 3d 644 (2001) (not foreseeable that victim would attempt to move one toncontainer by himself; no duty to warn or take precautions).

44. Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W. 2d 300 (1994).

45. Boren v. Worthen Nat’l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996) (bank customer assaulted at night while using ATM);Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992) (hospital not liable to visitor injured by negligentdriver in hospital parking lot). See Chris A. Averitt, Note, Bank Not Liable for Attack on ATM Patron, 50 ARK. L. REV. 521 (1997).

46. Willmon v. Wal–Mart Stores, Inc., 143 F.3d 1148 (8th Cir. 1998) (customer abducted from parking lot and murdered; undereither the Specific Harm Test or the Prior Similar Incidents Test, no duty of care owed by store); Parnell v. C & N Bowl Corp., Inc.,954 F.Supp. 1326 (W.D.Ark.1997) (kidnapping of decedent from parking lot of bowling alley was sudden, unexpected and unfore-seeable).

47. See the discussion in Holloway v. Stuttgart Regional Medical Center, 62 Ark.App. 140, 970 S.W.2d 301 (1998).

48. MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993) (Burger King not liable when customer was assaulted by third partyin parking lot of restaurant after closing hours).

49. ARK. CODE ANN. § 18–11–301. Individuals are prohibited from entering private land for recreational purposes, includinghunting, fishing, camping and swimming, when the land has been properly posted. ARK. CODE ANN. § 18–11–401 et seq.

50. ARK. CODE ANN. § 18–11–304.

51. ARK. CODE ANN. § 18–11–305.

52. ARK. CODE ANN. § 18–11–307.

REAL PROPERTY

For example, when a teenager, swimming withpermission on the defendant’s land, hit an under-ground rock and became a quadriplegic, he allegedthat the defendant owner was liable for a failure towarn of a dangerous condition, namely submergedrocks. In the absence of a showing that the defen-dant knew or should have known of the rock and ofthe likelihood of injury, the action was dismissed.The owner had no duty to examine the depths of thewaters, at least without any prior indication of dan-ger.53 Likewise, the statute was a viable defense to aclaim asserted by the estate of a teenager killed in afall off the bluffs at White Rock Mountain.54

§§ 3300––88.. TTrreessppaassss: sseevveerraannccee ooff ttiimmbbeerr

Three separate measures of damages are avail-able against a trespasser who severs timber.1 First,an 1883 statute provides civil damages againstthose who trespass upon the land of another and

knowingly cut down, destroy, or carry away anytrees, timber, or related products.2 That statute isalso applicable to any person who aids or assists thetrespasser and to any person who knowingly pur-chases or receives the trees or timber.3 The owner isentitled to double the value of the timber cut.4

Double damages are assessed only against a tres-passer who has no probable cause to believe he hada right to remove the trees.5 His knowledge is notpresumed or fictitiously satisfied; it must be affir-matively demonstrated.6

Second, a 1937 statute provides that any personwho cuts down, injures, destroys, or carries awayany tree placed or growing for use or shade on theland of another person is liable for treble the valueof the timber damaged, destroyed, or carried away,together with costs.7 If the defendant had probablecause to believe that the land on which he tres-passed or the trees which he cut were his own, he isliable only for the actual value of the timber cut andremoved, together with costs.8 The failure to have a

26

53. Mandel v. United States, 545 F.Supp. 907 (W.D.Ark.1982), reversed in part, 719 F 2d 963 (8th Cir. 1983).

54. Roten v. United States, 850 F.Supp. 786 (W.D.Ark.1994). See Carlton v. Cleburne County, Arkansas, 93 F.3d 505 (8th Cir.1996) (no liability when pedestrian bridge used for recreational purposes collapsed).

§ 30-88 Trespass: severance of timber

1. Russell v. Pryor, 264 Ark. 45, 568 S.W.2d 918 (1978). For background information on timber law, see Christopher R. Kelley,Representing the Arkansas Timber Owner in Timber Sales Transactions: Some Contract Drafting Considerations, 8 U. ARK. LITTLEROCK L.J. 637 (1986).

2. ARK. CODE ANN. § 15–32–301.

3. ARK. CODE ANN. § 15–32–301.

4. Peek v. Henderson, 208 Ark. 238, 185 S.W.2d 704 (1945).

5. Rosengrant v. Matthews, 55 Ark. 440, 18 S.W. 541 (1892).

6. Parker v. Fenter, 216 Ark. 398, 225 S.W.2d 940 (1950).

7. ARK. CODE ANN. § 18–60–102(a). See Hackleton v. Larkan, 326 Ark. 649, 933 S.W. 2d 380 (1996) (damage caused by fire).See also § 30-5, supra.

8. ARK. CODE ANN. § 18–60–102(c); Case v. Hunt, 217 Ark. 929, 234 S.W.2d 197 (1950) (856 pine trees). The statutory refer-ence to awardable costs does not include attorney fees. Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002).


survey made prior to cutting is evidence of willful-ness, but is not conclusive.9

Under the 1937 statute, the damages may bemeasured by either the value of the timber itself orthe damages caused to the market value of theland.10 Timber is valued at the stump,11 that is, thevalue of the timber standing in the tree.12 Stumpageis also defined as “the right to enter upon the landand cut trees.”13 The court may consider the use towhich the trees would have been put, includingspecifically their use solely as shade trees.14 In otherinstances the fact-finder has been permitted to con-sider the change in fair market value of the landwith and without the trees.15 Depending on the useto which the property might be put, replacementcost may also be an appropriate measure.16 The bet-

ter practice is for the court to treble the damages,although the jury may do so if properly instructed.17

Unlike the 1883 statute, the 1937 statute alsocovers damage to trees, even without the intent tocut down or remove.18 For treble damages, however,it is essential to demonstrate intentional wrongdo-ing by the defendant, although that may be inferredfrom the carelessness, recklessness, or negligence ofthe offending party.19 One who employs a timber cut-ter is liable if the cutter trespasses, provided that heacts at the direction or advice of the employer.20 Ifthe employer, however, did point out the correctboundary lines, the employer would not be liable fortreble damages.21

Since the statute provides for treble damages,awarding punitive damages as well for the trespass

27

9. Freeze v. Hinkle, 229 Ark. 714, 317 S.W.2d 817 (1958).



12. Burbridge v. Bradley Lumber Co., 218 Ark 897, 239 S.W.2d 285 (1951). On occasion, stumpage value seems to refer to thetimber that has been felled and cut into logs. See Russell v. Pryor, 264 Ark. 45, 568 S.W.2d 918 (1978).

13. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999).

14. Laser v. Jones, 116 Ark. 206, 172 S.W. 1024 (1915).

15. Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988).

16. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991) (owner envisioned land as a mobile home park; award based onreplacement cost and treble damages for willful trespass and destruction of oaks and pines affirmed). See Dilliard v. Wade, 74 Ark.App. 38, 45 S.W.3d 848 (2001) (wrongful cutting of timber by co-tenant; award based on value of the timber and cost of restora-tion).


18. McLouth v. General Tel. Co. of the Southwest, 164 F.Supp. 496 (W.D.Ark.1958) (ornamental Chinese elms damaged byintentional chemical spraying; treble damages awarded).

19. Callaway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964); Auger Timber Co. v. Jiles, 75 Ark. App. 179, 56 S.W.3d 386 (2001)(timber company did not survey land or take measurements; treble damages awarded). For example, McGee v. Wilson, 275 Ark.466, 631 S.W.2d 292 (1982) (evidence that timber cut ranged in value between $4000 and $6000 supported an award of $16,000).

20. Lewis v. Mays, 208 Ark. 382, 186 S.W.2d 178 (1945).

21. Russell v. Pryor, 264 Ark. 45, 568 S.W.2d 918 (1978).

REAL PROPERTY

constitutes a double recovery.22 However, in additionto recovering for the value of the timber cut, theplaintiff may also establish and recover for damagesto the land itself.23

These statutory remedies are an alternative tothose of the common law.24 Under the common lawrule, the innocent trespasser who cuts and removestimber and converts it to lumber is liable for thevalue of the wood in its manufactured state, less thecosts of the trespasser’s labor, material, and expen-ditures in transforming it.25 In effect, this measuregives the owner the value of the timber in the tree,along with any increase. If the expenditures exceedthe increase in value, the original owner recoversonly the stumpage value.26

Under the common law, the owner of the landfrom which the timber has been cut and removed bya willful trespasser may recover his property after ithas been improved into lumber or furniture, or hemay recover its enhanced value.27 The willful tres-

passer is not entitled to any reduction for his workand labor in enhancing the value.28 The innocentpurchaser of the timber removed may also be liableto the owner for its value or even its enhancedvalue, together with interest from the date of theconversion by the innocent purchaser.29

The jury may be instructed on all three theories,but of course, only one recovery is appropriate.30

§§ 3300––99.. TTrreessppaassss: rreemmoovvaall ooff mmiinneerraallss aanndd pprroodduuccttss

The measure of damages for unlawfully remov-ing minerals from the land of another depends uponwhether the invasion of property was willful or theresult of an honest mistake. If the trespass wasunintentional, the defendant is liable only for thevalue of the ore in the ground.1 The value, typicallydetermined on a royalty basis, reflects the locationand circumstances of the mine or quarry, the quali-

28

22. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). See the dissenting argument that the two wrongs are separate anddistinct.

23. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990) (award of $8000 for restoration of the land and $1986 for valueof timber removed was properly trebled); Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988) (jury’s award of $6508, based uponreconstruction costs following bulldozing of plaintiff’s land, was trebled by the court); Auger Timber Co. v. Jiles, 75 Ark.App. 179,56 S.W.3d 386 (2001) (recovery also for road repair and tree replanting).

24. Bailey v. Hammonds, 193 Ark. 633, 101 S.W.2d 785 (1937).

25. Burbridge v. Bradley Lumber Co., 218 Ark 897, 239 S.W.2d 285 (1951). See Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996) (damage caused by fire). See also § 30-5 supra. This measure is also appropriate when the timber cut in the fieldis taken directly to the mill, even if it is not enhanced at that time. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App.22, 988 S.W.2d 25 (1999). For conversion generally, see § 33–7, infra.

26. Burbridge v. Bradley Lumber Co., 218 Ark. 897, 239 S.W.2d 285 (1951).

27. Kansas City Fibre Box Co. v. F. Burkart Mfg. Co., 184 Ark. 704, 44 S.W.2d 325 (1931).

28. Bailey v. Hammonds, 193 Ark. 633, 101 S.W.2d 785 (1937).

29. Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S.W. 49 (1901).


§ 30–9. Trespass: removal of minerals and products

1. McGraw v. Berry, 170 Ark. 426, 280 S.W. 383 (1926) (coal).


ty of the mineral, the cost of mining and preparingit for market, and the cost of transportation.2

Because of the good faith of the trespasser, courtshave been reluctant to award pre-judgment inter-est.3

This royalty measure of “mild” damages againstan innocent trespasser may not provide a full meas-ure of recovery to a plaintiff who had the capabilityto extract the ore himself. Accordingly, such a plain-tiff should be entitled to recover the enhanced valueof the ore at the mouth of the mine, with a credit tothe non-willful trespasser for its reasonable cost ofextraction.4 Only in this fashion is the plaintiffmade whole by also recovering the profit he wouldhave earned if he had been able to extract the orewith his own facilities. This “working interest meas-ure” is available only to plaintiff owners who haddemonstrated an interest in working the land them-selves.5 Other owners are entitled to the “royaltymeasure.”

If the defendant, on the other hand, acted will-

fully, the damages are assessed as the enhancedvalue of the ore at the mouth of the mine at the timeof the severance, with no reduction for the trespass-er’s labor or expense.6 This “harsh rule” thus deniesto the bad faith trespasser any profit from his tres-pass and indeed is punitive in forcing him to acceptthe full costs of extraction.7

A good faith buyer of unlawfully mined ore isliable to the land owner for the value of the oretaken,8 with the value determined according to thepreceding rules for good faith and bad faith tres-passers. In other words, if the good faith buyer pur-chases from a bad faith trespasser, he must pay thehigher value.

Under the Arkansas statutes treble damages areassessed against a trespasser in several instances:(1) digging or carrying away any stone, ground, clay,turf, mold, fruit, or plants; (2) cutting down orremoving any grass, grain, corn, cotton, tobacco,hemp, or flax; and (3) breaking the glass in a build-ing.9 The provisions are applicable to willful tres-

29

The defendant bears the burden of showing that the conversion was in good faith, and that it resulted from inadvertence or anhonest mistake, not from a callous disregard of the property rights of others. Deltic Timber Corp. v. Great Lakes Chemical Corp.,2 F.Supp.2d 1192 (W.D.Ark.1998).

2. McGraw v. Berry, 170 Ark. 426, 280 S.W. 383 (1926); Deltic Timber Corp. v. Great Lakes Chemical Corp., 2 F.Supp.2d 1192(W.D.Ark.1998) (royalty value or leasehold value for brine removed).

3. Young v. Ethyl Corp., 444 F.Supp. 207 (W.D.Ark.1977).

4. National Lead Co. v. Magnet Cove Barium Corp., 231 F.Supp. 208 (W.D.Ark.1964) (barite ore).

5. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). See Gregory M. Power, Note: A Portrait ofUncertainty for Title Examiners and Mineral Interest Owners, 45 ARK. L. REV. 679, 693–97 (1992).

6. Ark. Power & Light Co. v. Decker, 179 Ark. 592, 17 S.W.2d 293 (1929) (sand and gravel).

7. National Lead Co. v. Magnet Cove Barium Corp., 231 F.Supp. 208 (W.D.Ark.1964). This approach to damages has alsobeen applied to the removal of brine bearing bromine and other minerals through the underground injection of water under greatpressures. Young v. Ethyl Corp., 581 F.2d 715 (8th Cir. 1978) (defendant acted in good faith, believing the course of action waslegal). The Arkansas Supreme Court has modified the “rule of capture” by permitting the good faith use of secondary recoveryprocesses for underground pools of valuable minerals, but by imposing on the extracting party “an obligation to compensate theowner of the depleted lands for the minerals extracted in excess of natural depletion, if any, at the time of taking and for any spe-cial damages which may have been caused to the depleted property.” Jameson v. Ethyl Corp., 271 Ark. 621, 609 S.W.2d 346 (1980).

8. McGraw v. Berry, 170 Ark. 426, 280 S.W. 383 (1926).

9. ARK. CODE ANN. § 18–60–102(a). See Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990) (remanded to determinewhether trespasser who cut and removed 700 bales of hay was acting in good faith or bad faith). Actions for such statutory penal-

REAL PROPERTY

passers.10 Only single damages, together with costs,are awarded against a trespasser who had probablecause to believe that the land or the item was his.11

§§ 3300––1100.. BBrreeaacchh ooff ccoonnttrraacctt ttoo ccoonnvveeyy: aaccttiioonn bbyybbuuyyeerr

A contract for the sale of land is breached whenthe seller refuses to convey title. Likewise, theinability of the seller to deliver actual and immedi-ate possession of the premises constitutes a breachof the contract. The buyer is entitled to damages ora return of the earnest money.1 The measure of dam-ages is the difference between the contract price andthe value of the land at the time of the breach.2 Onlyif the value of the land has risen will the buyer beentitled to any general damages.3 In the absence ofproof of the market value at the time of the breach,4

the action fails for lack of proven damages.5

Subsequent sales of the property, although not con-

trolling, may be appropriate in ascertaining thevalue of the property at the time of the breach.6

However, the buyer is also entitled to interest onthe difference from the time of the breach.7 Thisinterest compensates the buyer for the use of thebargain he would have attained if no breach hadoccurred. In addition, other consequential damagesmay result from the seller’s breach. For example,the buyer may be entitled to the reasonable cost oftemporary housing necessitated by the breach, pro-vided that such losses were within the contempla-tion of the parties and tacitly agreed to by thebreaching seller. Likewise, the buyer may allegethat the inability to acquire the property resulted inhigher interest rates for the alternative propertysubsequently acquired, and thereby the buyer mayclaim an interest rate differential.

When the seller breaches, the buyer is usuallyentitled to the expense of investigating the titlewhen that expense has been incurred.8 Attorney

30

ties must be brought within two years. Kutait v. O’Roark, 305 Ark. 538, 809 S.W.2d 371 (1991) (statutory remedy barred andlandowner limited to common law right).

A plaintiff who proceeds in equity forfeits the right to seek treble damages under the statute. Gardner v. Robinson, 42 Ark.App. 90, 854 S.W.2d 356 (1993).

10. Schrader v. Schrader, 81 Ark. App.343, 101 S.W.3d 873 (2003) (neighbor had intentionally driven through vegetable gar-den, tossed trash in pond, and destroyed fences).

11. ARK. CODE ANN. § 18–60–102(c).

§ 30–10. Breach of contract to convey: action by buyer

1. Watson v. Calvin, 69 Ark. App. 109, 9 S.W.3d 571 (2000) (tenants still occupied property on date of scheduled closing).

2. Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955).

3. For example, Cole v. Salyers, 190 Ark. 53, 76 S.W.2d 669 (1934).

4. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978).

5. For example, Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955).

6. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978).

7. Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985); Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886).

8. Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955).


fees incurred by the buyer in connection with thethwarted purchase may be treated as relianceexpenditures and therefore recoverable damages.Further, attorney fees that are related to a success-ful breach of contract litigation may be awardedunder statutory law.9 However, the buyer may notrecover for the profits he would have made upon anintended resale or lease of the property, for thesedamages are ordinarily too speculative, too remote,or not contemplated by the parties.10

Under the English case of Flureau v. Thornhill,courts apply a different rule to a seller who is unableto provide good title as called for in the contract.Such a good faith breaching seller is liable in resti-tution only for the amounts that the buyer has paidon the contract, along with any reliance expendi-tures made by the buyer. In keeping with the major-ity of American states, Arkansas has rejected thatEnglish rule. The vendee in a real estate contractordinarily need only accept a title that he can holdwithout reasonable apprehension of being chal-lenged and which is free from reasonable doubtsaffecting its value or interfering with its transfer-ability.11 If the seller breaches by virtue of a deficien-cy in title, the buyer is entitled to damages comput-ed in the same fashion as for any other breach,including the recovery of his expectancy.12

Other remedies may also be available. If the con-tractual deficiency is related to the quantity of land,it may be corrected with an abatement in the pur-chase price.13 When confronted with a deficiency intitle, the vendee has the option of accepting theentire tract in its defective condition, with an appro-priate abatement; taking only the portion to whichmerchantable title can be given, again with anappropriate abatement; or rescinding the entire con-tract.14 Assuming title does not present any prob-lems and the seller simply refuses to convey, thebuyer may elect the remedy of specific performanceand assert a claim for incidental losses.15 The awardis based on principles of “equitable compensation,”with the objective of contract performance and withmonetary compensation for any losses incurred bythe delay in performance.16

Most conveyances contain covenants of title, bywhich the grantor agrees to indemnify the grantee ifthe title fails. A general warranty deed typically con-tains five covenants of title: seisin, right to convey,quiet enjoyment, freedom from incumbrances, andgeneral warranty.17 A breach of some covenants willsupport an action for restitution of the purchase

31

9. ARK. CODE ANN. § 16-22-308. See § 11-3, supra.

10. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886).

11. Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (1982).

12. Vaughan v. Butterfield, 85 Ark. 289, 107 S.W. 993 (1908) (wife refused to relinquish dower interest).

13. Williams v. J. W. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982) (contract called for “tract of 640 acres, more orless,” but buyer received only 355 acres; abatement in purchase price granted). See Howard W. Brill, Specific Performance inArkansas, 1995 ARK. L. NOTES 17, 23.

14. Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (1982). See also Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979)(adjustment of purchase price to reflect the inchoate dower interest).

15. See, e.g., Stacy v. Lin, 34 Ark. App. 97, 806 S.W.2d 15 (1991) (buyer of Chinese restaurant entitled to specific performanceand equitable compensation, rather than lost profits, for the losses incurred as a result of the delay in transferring).

16. Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995); Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985).

17. Proffitt v. Isley, 13 Ark. App. 281, 683 S.W.2d 243 (1985).

REAL PROPERTY

price, in whole or in part.18 For a breach of thecovenant against incumbrances, the grantee mayrecover from the grantor the amount necessary toremove the incumbrances.19 But unless he has beenevicted or has satisfied the outstanding incum-brances, his recovery is limited to nominal dam-ages.20

If the grantee retains the property, but is latercompelled to defend the title against a third party,the grantee is entitled to recover from the grantorthe expenses and costs of defending that lawsuit.21

Likewise, a grantee who successfully initiates anaction against a third party who claims adverse pos-session may recover the costs and expenses from thegrantor who warranted the title.22

§§ 3300––1111.. BBrreeaacchh ooff ccoonnttrraacctt ttoo ppuurrcchhaassee llaanndd: aaccttiioonnbbyy sseelllleerr

Upon the failure of the buyer to complete thepurchase of land called for by the executory con-

tract, the measure of damages is the differencebetween the contract price of the land and its mar-ket value at the time of the breach.1

If the value of the land at the time of the breachis higher than the contract price, either because ofgeneral market appreciation or the shrewd bargain-ing of the buyer, the seller has suffered no generaldamages because the land he retains is more valu-able than the proceeds the sale would have yielded.The court is to consider the fair market value of theland, rather than any subjective value to the owner.2

Regardless of whether general damages areawarded, the seller may be entitled to consequentialdamages that have flowed directly from the buyer’sbreach. For example, the seller may have incurredexpenses in preparing the land to convey to thebreaching buyer.3 The seller may have made alter-ations in the property to comply with the wishes ofthe buyer, which alterations will have no benefit,and perhaps even be a detriment, to most prospec-tive buyers. Based on the contract to purchase aresidence, the seller may have acquired another res-idence and is now obligated for the expenses on

32

18. Turner v. Eubanks, 26 Ark.App. 22, 759 S.W.2d 37 (1988) (conveyance of 229 acres to grantees limited by third party’ssuccessful adverse possession claim to one acre).

19. Proffitt v. Isley, 13 Ark. App. 281, 683 S.W.2d 243 (1985). See Brown v. LeTourneau College, 251 Ark. 851, 475 S.W.2d 521(1972) (incumbrance consisted of adjoining landowners’ perpetual water rights; damages of $1000).

20. Proffitt v. Isley, 13 Ark. App. 281, 683 S.W.2d 243 (1985).

21. Garmon v. Mitchell, 53 Ark.App. 10, 918 S.W.2d 201 (1996); Murchie v. Hinton, 41 Ark.App. 84, 848 S.W.2d 436 (1993).

22. Bosnick v. Hill, 292 Ark. 505, 731 S.W.2d 204 (1987).

§ 30–11. Breach of contract to purchase land: action by seller

1. McGregor v. Echols, 153 Ark. 128, 239 S.W. 736 (1922). Compare McMaster v. McIlroy Bank, 9 Ark.App. 124, 654 S.W.2d591 (1983) (fair market value as of the date of performance of the contract). In calculating the market value of the land at the timeof breach, the court may consider the price at which the land subsequently sold to a third party. Johnston v. Curtis, 70 Ark.App.195, 16 S.W.3d 283 (2000) (property sold four months after scheduled closing).

The seller cannot recover damages in the absence of the written memorandum required by the Statute of Frauds.Blackmon v. Berry, 57 Ark. App. 1, 939 S.W.2d 863 (1997). See § 17–2, supra.

2. McMaster v. McIlroy Bank, 9 Ark. App. 124, 654 S.W.2d 591 (1983).

3. McIlvenny v. Horton, 227 Ark. 826, 302 S.W.2d 70 (1957) (cost of abstract, survey, escrow fee, broker’s fee and attorneyfee).


both. But the seller’s payment of utilities after thebreach and similar expenses are remote from thebreach and are not recoverable.4 Similarly, conse-quential damages do not include expenses in con-nection with the subsequent sale to a third party.5

Frequently, the seller will have received a downpayment or deposit of earnest money. Whether theseller may retain that sum in lieu of establishingactual damages depends upon whether it is a validliquidated damages provision.6 The remedy of spe-cific performance may be available to the seller.7

§§ 3300––1122.. RReesscciissssiioonn ooff llaanndd ssaallee ccoonnttrraaccttss

Land sale contracts may be rescinded for fraud,for mistake, for breach of contract, and upon othergrounds. A party wishing to rescind the contractmay plead in the alternative. The substantive stan-dards will vary significantly, but the techniques ofaccomplishing the rescission and restoring the par-ties to their respective status prior to the contractu-al relationship are essentially similar.

If the seller fails to perform within the timecalled for in the contract, rescission with restitutionof the down payment is an appropriate remedy.1

However, if the breach occurs after the buyer hastaken possession, rescission, though it may still beavailable, requires a more careful analysis of thechanges in the status of the parties. For example,when a land sale contract was rescinded for viola-tion of the rule against perpetuities, the buyer whohad made 25 monthly payments on the contract wasentitled to restitution for the taxes and insurancepaid, as well as the value of the improvements madeon the land.2 Since the buyer had the benefit of theuse of the land during the life of the contract, he wasnot granted any recovery for the monthly paymentsmade.

Similarly, upon failure of the seller to provideclear title to the land, the buyer is entitled torescind and recover the payments made under thecontract. Whether the defect in the title is tooinsignificant to permit rescission is a question offact for the court.3 When the contract is rescindedbecause the vendor’s title fails, the vendor cannotrecover from the buyer for the buyer’s use and occu-pation of the land prior to rescission.4

A buyer may rescind a contract for the purchaseof land by establishing actionable fraud in the rep-resentations of the seller.5 In granting rescissionseveral years after title passed to the buyer, the

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4. Williams v. Cotten, 14 Ark.App. 80, 684 S.W.2d 837 (1985).

5. Johnston v. Curtis, 70 Ark.App. 195, 16 S.W.3d 283 (2000).

6. See § 8–2, supra.

7. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000) (specific performance denied because seller had not complied withprovision of contract).

§ 30–12. Rescission of land sale contracts

1. Worch v. Kelly, 276 Ark. 262, 633 S.W.2d 697 (1982); Kellum v. Gray, 266 Ark. 996, 590 S.W.2d 33 (Ark. App.1979); Watsonv. Calvin, 69 Ark. App. 109, 9 S.W.3d 571 (2000) (buyer entitled to rescind when seller was unable to deliver actual possession ofthe premises on date of closing, due to continued occupancy by tenants). On rescission generally, see § 31–3, infra.

2. Comstock v. Smith, 255 Ark. 564, 501 S.W.2d 617 (1973).


4. Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976).

5. Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981) (court sets forth a four-part test for rescission of contract based

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court awarded the defrauded buyer the compensa-tion for the payments made on the purchase price,the costs of necessary repairs and maintenance, andthe taxes and insurance premiums paid. Thatamount was then reduced by the rental incomereceived by the buyer on the property.

To rescind a contract for mistake, the buyermust establish a material mistake of fact, combinedwith good faith reliance upon the seller’s state-ment.6 For example, when both parties were mistak-en as to the suitability of the land for construction,rescission was appropriate.7 In such a situation therecovery is restitutionary in nature and is intendedto restore the parties to their original positions.

When both parties seek cancellation of the con-tract and rescission, the task of the court is torestore the status quo as nearly as possible accord-ing to the principles of equity.8 For example, whenthe buyers were in possession for five years, theywere entitled to the return of the monthly paymentstogether with interest. The buyers were also obligat-ed to pay rent to the sellers for the time they occu-pied the property together with interest on therental value each month.9

The court must consider the condition of theproperty at the time the buyers went into posses-sion, the extent of ordinary wear and tear, the costof repair or restoration, and similar factors inattempting to return the parties to the status quo.10

Adjustments for improvements placed on the landthat increased the value of theproperty may also be appropriate.11

Forfeiture provisions in land sale contracts areenforced when no substantial equitable circum-stances demand the refusal of forfeiture.12 However,equity will seize upon slight circumstances thatindicate a waiver by the seller in order to preventforfeiture against the buyer.13 For example, the actsof the seller may lull the buyer into a sense of assur-ance that late payments or other failures to complywith the terms of the contract will be tolerated; inthat instance equity is reluctant to grant a forfei-ture, particularly when the buyer has made sub-stantial payments on the total purchase price.14

Although equity abhors forfeitures, a buyer whowishes to exercise an option to withdraw from a

34

upon fraud). Constructive fraud will also support rescission. Cardiac Thoracic and Vascular Surgery, P. A. v. Bond, 310 Ark. 798,840 S.W.2d 188 (1992).


7. Carter v. Matthews, 288 Ark. 37, 701 S.W.2d 374 (1986).



Income generated from the property and received by the buyer must be returned to the seller upon rescission. But if theproperty was unoccupied, unimproved, and non-income producing, equitable principles may not require the payment of the rea-sonable rental value. See Cardiac Thoracic and Vascular Surgery, P. A. v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992).


11. Heifner v. Hendricks, 13 Ark. App. 217, 682 S.W.2d 459 (1985).

12. White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950); Hatfield v. Mixon Realty Co., 269 Ark. 803, 601 S.W.2d 894(Ark.App.1980).

13. Humke v. Taylor, 282 Ark. 94, 666 S.W.2d 394 (1984); Hatfield v. Mixon Realty Co., 269 Ark. 803, 601 S.W.2d 894(Ark.App.1980).

14. Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964).


land sale contract without loss of the earnest moneyor down payment must comply strictly with theterms of the withdrawal option.15

When a discrepancy exists between the propertyto be conveyed and the contract, the purchaser mayseek an abatement in the purchase price to compen-sate for shortcomings in the title, quantity, quality,description, or other matters.16 A slight discrepancyin the amount of land is tolerable,17 but where theacreage goes to the essence of the contract, the buy-ers are entitled to a reduction in the price because ofthe deficiency.18 The court may give the sellers theoption of accepting an abatement or rescinding theentire sale.19

§§ 3300––1133.. EEjjeeccttmmeenntt

Ejectment is a legal remedy in circuit court by

which the plaintiff, alleging he is legally entitled tothe possession of the land, seeks to recover posses-sion and damages.1 A plaintiff in ejectment mayrecover against a mere trespasser invading theactual possession of the plaintiff.2

For the plaintiff to recover, he must establishthat at the commencement of the action, the defen-dant was in possession of the premises and theplaintiff had title or the right to possession.3 Theplaintiff must succeed on the strength of his owntitle and cannot depend on the weakness of thedefendant’s claim.4 An equitable title is generallynot sufficient to maintain an action in ejectment.5

In defense to an ejectment action, a defendantwill frequently affirmatively plead adverse posses-sion.6 The doctrine, which protects one who honest-ly entered into possession of land believing it to be

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15. Bollen v. McCarty, 252 Ark. 442, 479 S.W.2d 568 (1972).

16. Christy Co. v. Ainbinder/Searcy Ltd., 3 Ark. App. 63, 621 S.W.2d 886 (1981) (abatement of $25,000 to compensate for thecost of moving water lines; action based on fraud). See Howard W. Brill, Specific Performance in Arkansas, 1995 ARK. L. NOTES 17,23.

17. Strout Realty, Inc. v. Burghoff, 19 Ark. App. 176, 718 S.W.2d 469 (1986) (discrepancy of two acres on 26 acres of rural resortland not sufficient to support rescission of contract).

18. Williams v. J. W. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982) (contract called for “tract of 640 acres, more orless,” but buyer received only 355 acres; abatement granted); Burk v. Hefley, 32 Ark. App. 133, 798 S.W.2d 109 (1990) (tractdescribed as “19.65 acres, more or less” only contained 12 acres; but because property included a house and workshop, abatementproperly denied).

19. Harris v. Milloway, 9 Ark. App. 350, 660 S.W.2d 174 (1983).

§ 30–13. Ejectment

1. ARK. CODE ANN. § 18–60–201ff; Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969). ARK. CODE ANN. § 18–16–201 pro-vides for an action of ejectment against a tenant who is six months in arrears in rent.

2. Wyatt v. Griffin, 242 Ark. 562, 414 S.W.2d 377 (1967) (defendants built a fence on plaintiff’s property).

3. ARK. CODE ANN. § 18–60–206. The plaintiff must set forth in the complaint “all deeds and other written evidences of title.”Ark.Code Ann. § 18–60–205. See DAVID NEWBERN, ARKANSAS CIVIL PRACTICE AND PROCEDURE, § 32–2 (2d ed. 1993).

4. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994); Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

5. Scott v. Rutherford, 243 Ark. 306, 419 S.W.2d 595 (1967).

6. Mid-South Partitions, Inc. v. Brandon, 261 Ark. 317, 547 S.W.2d 764 (1977) (action brought to settle a boundary dispute).

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his,7 has six elements.8 The adverse claimant mustestablish that his possession was actual, open,exclusive, hostile in character,9 accompanied by anintent to hold adversely against the true owner, andcontinued for seven years.10 The acts of ownershipmust be the type that the possessor would exerciseover his own property, must be reasonably adaptedto the land, and must be sufficiently open and visi-ble to give the true owner knowledge of the adversepossession.11 Possession of land that was originallypermitted by the title owner can become adverseonly upon clear evidence of a change in relationshipof the parties.12 The claim may be initiated in equityin a quiet title action, or raised in a court of law asa defense to ejectment.13

Under the common law, neither payment of

taxes nor color of title is essential to establish aclaim to adverse possession when the claimants arein actual possession.14 A party who claims titlethrough adverse possession under color of title isdeemed to be in constructive possession of the entiretract if in actual possession of any portion of thetract.15 On the other hand, a trespasser who lackscolor of title has a heavier burden to successfullyassert an adverse possession claim.16 Without colorof title, the claim is limited to that portion overwhich the trespasser has actual possession.17

However, a 1995 statute has made acquisition oftitle through adverse possession more difficult byadding two requirements to the common law.18 Theadverse possessor must have color of title and have

36

7. Barclay v. Tussey, 259 Ark. 238, 532 S.W.2d 193 (1976).

8. Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002); Dillard v. Pickler, 68 Ark. App. 256, 6 S.W. 3d 128 (1999); Clark v.Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982). The six elements are frequently recalled with the acronym OCEANN: open, contin-uous, exclusive, adverse, notorious, and non-permissive.

9. The requirement of hostility does not mean a conscious feeling of ill will or enmity toward the neighbor. Walker v.Hubbard, 31 Ark.App. 43, 787 S.W.2d 251 (1990). A possessor is not adverse if he recognizes the ownership rights of the titlehold-er to the land in question. Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780 (1998).

10. The claimant may “tack on” the adverse-possession time of an immediate predecessor in title. White River Levee Districtv. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001).

11. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W. 2d 116 (1999) (drainage ditch). Adverse possession need not be dynam-ic or active. The adverse possessor of the land is not required to give actual notice to the landowner; constructive notice is suffi-cient. McLaughlin v. Sicard, 63 Ark. App. 212, 977 S.W. 2d 1 (1998).

12. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W. 2d 354 (1995).

13. Kieffer v. Williams, 240 Ark. 514, 400 S.W.2d 485 (1966) (claimant sued in chancery court to establish her title by adversepossession and for injunctive relief); Howell v. Baskins, 213 Ark. 665, 212 S.W.2d 353 (1948) (in defense to an ejectment action, thedefendant asserted adverse possession).

14. Howell v. Baskins, 213 Ark. 665, 212 S.W.2d 353 (1948).

A claimant who, acting under color of title, pays taxes for seven years in succession on unimproved and unenclosed landis deemed to be in possession of the land. ARK. CODE ANN. § 18–11–102. See § 13–7, supra.

15. St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S.W.2d 882 (1944).

16. Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996).

17. Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982).

18. ARK. CODE ANN. § 18-11-106. For a comprehensive review of the legislative history and intent of the statute, see Shane P.


paid real property taxes on the claimed property forseven years. The statute also provides that theadverse possessor can satisfy these two require-ments by having color of title to property contiguousto the claimed property and paying taxes on thiscontiguous property for seven years. The 1995statute is limited, however, to instances of actualadverse possession.19 The statute is not applicableto adverse possession claims that vested before1995.20 The companion remedy is a quiet titleaction, which was historically filed in equity,brought by a party who is in possession and desiresthat title be declared in him.21 That action, whichmay be based on the statute or the case law, is relat-ed to the equitable bill to remove a cloud on thetitle.22 The claim may be based upon record title orthe elements of adverse possession.23 However, if thepetitioner is not in possession, but claims legal title,equity has no role as ejectment is a complete reme-

dy.24

Under ejectment, the plaintiff, in addition torecovery of possession, is entitled to damages andcosts.25 The statute provides for the rents and profitson the land down to the time of assessment.26 Thereasonable rental value of the land is the typical evi-dence offered to establish the statutory test of rentsand profits.27 Damages have also been based, in oneinstance, on the cost of removing a road constructedby the defendants on the plaintiff’s land.

§§ 3300––1144.. TThhee mmiissttaakkeenn iimmpprroovveerr aanndd tthhee bbeetttteerrmmeennttssttaattuuttee

Occasionally, a person will take possession of theland, and believing he is the owner, will improve theland. Upon discovery that he is not the owner, hewill also discover that under the common law,improvements mistakenly made on the propertybelong to the owner of the land, with no obligation

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Raley, Note, Color of Title and Payment of Taxes: The New Requirements under Arkansas Adverse Possession Law, 50 ARK. L.REV. 489 (1997).

19. Schrader v. Schrader, 81 Ark. App. 343, 101 S.W.3d 873 (2003).

20. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987).

21. The quiet title statute is ARK. CODE ANN. § 18–60–501ff. See DAVID NEWBERN AND JOHN J. WATKINS, ARKANSAS CIVILPRACTICE AND PROCEDURE, §§ 32–4, 32–5 (3rd ed. 2002); Joe E. Covington, Bills to Remove Cloud on Title and Quieting Title inArkansas, 6 ARK. L. REV. 83 (1952).

A statutory quiet title claim can be brought only if the plaintiff can demonstrate a “perfect claim of title” or prima facietitle through color of title and continuous payment of taxes on the land for seven years. Ark.Code Ann. § 18–60–506. See Brownv. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991) (attorney fees assessed against a party for bringing a quiet title action without areasonable basis).

22. Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988); Cooper v. Cook, 220 Ark. 344, 247 S.W.2d 957 (1952) (claimantssued in equity to quiet title and based their claim on adverse possession); Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d256 (Ark. App.1979) (action in equity to quiet title based on adverse possession).

23. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

24. Ark. Code Ann. § 18–60–207.

25. Ark. Code Ann. § 18–60–209.

26. See Fort Smith Warehouse Co. v. Friedman–Howell & Co., 111 Ark. 15, 163 S.W. 175 (1914); Jacks v. Dyer, 31 Ark. 334(1876).

27. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969) (judgment reversed on other grounds).

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to provide compensation to the mistaken improver.1

The Arkansas betterment statute amends that ruleand provides that any person who, believing himselfto be the owner either in law or equity and actingunder color of title, has mistakenly and peaceablyimproved the land of another may be entitled tocompensation for the value of the improvementsmade upon the land and the taxes paid.2

The statute is applicable only when the personacts in good faith and under color of title.3 Good faithconsists of an honest belief and an ignorance thatany other person claims a better right to the land.4

Color of title refers to an instrument that passeswhat purports to be a title, but which is defective inform.5 An improver who benefits the land of anotherbut without color of title has no claim for compensa-tion.6

The betterment statute is not limited to eject-ment actions, but may be raised in any action in

which the defendant’s right to possession or enjoy-ment of the land is challenged.7 However, thestatute does not permit the mistaken improver toaffirmatively seek relief, but merely provides ameans of asserting a counterclaim against the partyseeking possession and damages.

The court awards the owner compensation forany damage or waste to the land, together withmesne profits for the preceding three years.8 Mesneprofits are defined as the fair rental value of thelands in their improved condition during the statu-tory period. The fair rental value is ascertained bydeducting from the gross rental value the amountsexpended for necessary repairs and the necessaryand customary management expenses.9 Theimprovements are valued not at cost,10 nor separate-ly from the land, but are based upon the amount bywhich they have enhanced the value of the landitself.11 The owner’s lack of desire for the improve-

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§ 30–14. The mistaken improver and the betterment statute

1. Jay N. Tolley, Note, Equity—Rights of a Mistaken Improver, 24 ARK. L. REV. 133 (1970).

Although the betterment statute is limited to actions for ejectment or trespass, a tenant in common seeking partition may seekindemnification from the other tenants for improvements made in good faith which have enhanced the value of the property.Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990). See Howard W. Brill, Equity: Real Property and the Problem of theTroublesome Neighbor, 1994 ARK. L. NOTES 1, 5.

2. Ark.Code Ann. § 18–60–213(a).

3. Berry v. Bierman, 248 Ark. 440, 451 S.W.2d 867 (1970).

4. Vernon v. McEntire, 234 Ark. 995, 356 S.W.2d 13 (1962). A person who improves property, knowing that the ownership isdisputed in a divorce action, cannot claim reimbursement under the betterment statute. Jones v. Jones, 22 Ark. App. 179, 737S.W.2d 654 (1987).

5. Baker v. Ellis, 245 Ark. 484, 432 S.W.2d 871 (1968); Acord v. Acord, 70 Ark. App. 409, 19 S.W.3d 644 (2000) (deed convey-ing only a life estate is not sufficient color or title).

6. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995).

7. For example, Crouch v. Crouch, 251 Ark. 1047, 476 S.W.2d 248 (1972) (partition action in equity); Neal v. Jackson, 2Ark.App. 14, 616 S.W.2d 746 (1981) (chancery action to set aside will and deed).

8. Ark. Code Ann. § 18–60–213(d).

9. Crouch v. Crouch, 244 Ark. 823, 431 S.W.2d 261 (1968).

10. Smith v. Nelson, 240 Ark. 954, 403 S.W.2d 99 (1966).

11. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962).


ments and, indeed, even his inability to profitablyuse the improvements, is irrelevant to their valueand to the offset to be granted.12

The value of the improvements, which is deter-mined at the time of the recovery, cannot exceed thecost of making them or replacing them.13 The onlyother limitation on the extent of the improvementsseems to be that the improver may not “improve oneout of his land.”14

If the value of the improvements and the taxespaid by the occupant exceed the award to the owner,the court may not issue a writ of possession until theimprover has been paid the amount due him.15 Theimprover is entitled to a lien on the lands for theamount due. In those proceedings, the owner is enti-tled to further recovery for the rent that accruesafter the judgment.16 If the improvements add noth-ing to the value of the land, there is no recovery.17

If the betterment statute is not applicable, theimprover may be authorized by statute18 or caselaw19 to remove the improvements from the land ifthat task can be accomplished without substantialdamage to the land. Further, if the improvementsare not removable, the mistaken improver mayassert a claim in unjust enrichment, relying in parton the maxim that “he who seeks equity must doequity.” But the case law offers little encouragementto that unfortunate individual who may be viewedas a volunteer or a meddler. Such a mistakenimprover does not have the option of purchasing theland upon which the improvements rest.20 Finally,Arkansas has a consistent policy of granting manda-tory injunctions to remove buildings or improve-ments that encroach upon or are located upon theproperty of another.21

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12. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981) (defendant had taken possession of land pursuant to a deed laterheld invalid).

13. McDonald v. Rankin, 92 Ark. 173, 122 S.W.88 (1909).


15. ARK. CODE ANN. § 18–60–213(c).

16. ARK. CODE ANN. § 18–60–213(e).


18. ARK. CODE ANN. § 18–60–105. The statute not only permits the improver to remove the construction, but also provides thatthe improver “shall not be held responsible for any damages to the owner of the adjoining lands.” That provision is arguably uncon-stitutional for violating the principle of Article 2, § 13 of the Arkansas Constitution that every person is entitled to a remedy forinjuries suffered to his property. See Dendy v. Greater Damascus Baptist Church, 247 Ark. 6, 444 S.W.2d 71, 72 (1969) (Fogleman,J., concurring). The legislation should probably be viewed as eliminating nominal damages for the trespass, but not the actualdamages caused by the construction or the removal.

19. Young v. Mobley Const. Co., 266 Ark. 935, 587 S.W.2d 837 (1979); Shick v. Dearmore, 246 Ark. 1209, 442 S.W.2d 198 (1969).

20. Smith v. Stewart, 10 Ark. App. 201, 662 S.W.2d 202 (1983).

21. See the cases collected in Smith v. Stewart, 10 Ark. App. 201, 662 S.W.2d 202 (1983). See Howard W. Brill, Equity: RealProperty and the Problem of the Troublesome Neighbor, 1994 ARK. L. NOTES 1.

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