Stephens v. Clark , 121 Ark. 292 ( 1915 )

Kirby, J.,

(after stating the facts). It is contended that the court erred in instructing the jury that .appellee, Clark, wias only liable for waste committed by .him upon the lands and not chargeable with any waste that may have been committed by his predecessors.

There was no testimony introduced tending to show that any of the predecessors in title or grantors of appellee Clark had committed any waste upon the lands, and the instruction therefore could not have been prejudicial, if erroneous. The appellants attempted to introduce some testimony about the cutting .and removing of certain timber from the lands .after the tax sale thereof, but upon the witness stating that he did not know by whom it was cut, the court excluded the testimony. No other testimony being offered attempting to connect the appellee or his grantors with the cutting ¡and removal of the timber, no error was committed in the rejection of said testimony. The appellee being in possession of lands under color of title was entitled to recover the value of the improvements placed thereon by his predecessors in possession ¡and grantor, as held in McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88.

No question can be made here of .appellants’ right to recover only a certain interest in the lands because of the bar of the statute of limitations, appellee not having appealed from the judgment against him for the possession of the entire tract.

"We find no error in the;record and the judgment is affirmed.