Jennings v. Burford

Austin JENNINGS and Lyndell Burford Jennings
v. Charles G. BURFORD 
and 
Mrs. Charles G. Burford

CA 97-316                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered December 22, 1997


1.   Property -- boundary by acquiescence. -- Whenever adjoining
     landowners tacitly accept a fence line or other monument as
     the visible evidence of their dividing line and thus
     apparently consent to that line, it becomes the boundary by
     acquiescence. 

2.   Property -- boundary by acquiescence -- period of acquiescence varies. --
     A boundary line by acquiescence is inferred from the
     landowners' conduct over many years so as to imply the
     existence of an agreement about the location of the boundary
     line; the period of acquiescence need not last for a specific
     length of time, but it must be for "many years" or "a long
     period of time" sufficient to sustain the inference that there
     has been an agreement concerning the location of the boundary
     line; this period varies with the facts of each case, just as
     all circumstantial evidence does, unlike the seven years
     required to take land by adverse possession.

3.   Property -- boundary by acquiescence -- adverse possession not required. -
     - Establishment of a boundary line by acquiescence does not
     require adverse possession of the land by one party. 
4.   Property -- boundary by acquiescence -- conclusiveness and effect. -- When
     the adjoining landowners occupy their respective premises up
     to the line they acquiesce in as the boundary for a long
     period of time, they and their grantees are precluded from
     claiming that the boundary thus acquiesced in is not the true
     boundary, although it may not be.

5.   Property -- boundary by acquiescence -- dispute or uncertainty not
     necessary. -- A boundary line may be established by acquiescence
     whether or not preceded by a dispute or uncertainty as to the
     boundary line.

6.   Property -- boundary by acquiescence -- location is question of fact. -- 
     Where a boundary line by acquiescence can be inferred from
     other facts presented in a particular case, a fence line,
     whatever its condition or location, is merely the visible
     means by which the acquiesced boundary line is located; the
     location of a boundary line is a question of fact, and the
     appellate court must affirm a chancery court's location of a
     boundary line unless its finding is clearly against a
     preponderance of the evidence.

7.   Appeal & error -- review of chancery court decision. -- Although the
     appellate court tries chancery cases de novo on the record, it
     does not reverse unless it determines that the chancery
     court's findings of fact were clearly erroneous; in reviewing
     a chancery court's findings of fact, the appellate court gives
     due deference to the chancellor's superior position to
     determine the credibility of witnesses and the weight to be
     accorded to their testimony.   

8.   Property -- chancery court's finding that meandering fence was boundary by
     acquiescence was not clearly erroneous. -- Upon de novo review of the
     record, which contained testimony regarding the fence line
     between two forty-acre tracts, the appellate court concluded
     that the chancery court's finding that the meandering fence
     was a boundary line by acquiescence was not clearly erroneous.

9.   Property -- boundaries -- chancery court did not err in finding surveyor's
     testimony credible -- artificial monuments may be established by parol
     evidence. -- The credibility and weight of a surveyor's
     testimony was a matter for the chancery court to determine,
     and the appellate court could not say that the chancery court
     erred in finding his testimony credible because, in cases
     where there are inconsistent theories as to the location of a
     boundary line, a survey establishing a boundary line may be
     based on artificial monuments, and these monuments may be
     established by parol evidence.

10.  Evidence -- hearsay discussed. -- Hearsay is a statement made by an
     out-of-court declarant that is repeated in court by a witness
     and is offered into evidence to prove the truth of the matter
     asserted in the out-of-court statement; hearsay offered by an
     in-court witness is inadmissible except as provided by law or
     by the rules of evidence.

11.  Evidence -- appellee's reply to question was not hearsay -- witness who
     states that he had conversations with others without repeating what someone
     else said does not violate hearsay rule. -- The chancery court did
     not err in denying appellants' hearsay objection where
     appellee replied, "Yes, sir," after having been asked if he
     had any discussions with his father concerning the location of
     the marker that was to divide the forty-acre tracts;
     appellee's reply was not hearsay because it was not a
     repetition of a statement made out of court but, instead, was
     appellee's own statement that he had had a discussion with his
     father; a witness who states that he or she had conversations
     or discussions with others, but does not repeat what someone
     else said, has not violated the rule against hearsay.

12.  Property -- chancery decrees must locate boundaries by specific
     description. -- Chancery court decrees that establish boundary
     lines must locate them by specific description.

13.  Property -- description of boundary line in chancery decree not
     sufficiently specific -- chancery court granted leave to amend decree by
     adding more specific boundary description. -- Where the appellate
     court determined that the description of the boundary line in
     the chancery court's decree was not sufficiently specific but
     concluded that the lack of specificity did not constitute
     reversible error but was, instead, a mere omission or
     oversight, the appellate court, pursuant to Arkansas Rule of
     Civil Procedure 60(a), granted leave to the chancery court to
     amend the decree by adding a more specific description of the
     boundary line between the parties' land, affirming as modified
     the chancery court's decree denying appellants' petition to
     quiet title and establishing a boundary line by acquiescence
     between the parties' land.


     Appeal from Columbia Chancery Court; Edward P. Jones,
Chancellor; affirmed as modified.
     Dunn, Nutter, Morgan & Shaw, by: R. David Freeze and Christie
G. Adams, for appellants.
     Kinard, Crane & Butler, P.A., by: David F. Butler, for
appellees.

     Judith Rogers, Judge.
     Appellants Austin Jennings and Lyndell Jennings, husband and
wife, appeal the Columbia County Chancery Court's denial of their
petition to quiet title to land lying between forty acres that they
own and an adjoining forty-acre tract owned by the appellees, Mr.
and Mrs. Charles Burford.   In its order denying appellants'
petition to quiet title, the chancery court determined that the
boundary line between the two forty-acre tracts had been
established by acquiescence and was marked by a meandering fence
that appellee Charles Burford had used to contain cattle on his
land for at least twenty years. Appellants assert six allegations
of error. We affirm as modified.

     The two forty-acre tracts at issue are located north-south
relative to each other.  Appellants own the northern tract and
appellees Own the southern. Appellant Austin Jennings and appellee
Charles Burford each obtained his respective tract from a common
grantor, W.W. Burford.   W.W. Burford was the father-in-law of
appellant  Austin  Jennings,  the  father  of  appellant  Lyndell
Jennings, and the father of appellee Charles Burford.  Appellant
Austin Jennings purchased his forty-acre tract from W.W. Burford in
June 1957.  Appellee Charles Burford purchased his forty-acre tract
from W.W. Burford, his father, in April 1961.   Both tracts are
comprised of farm land, pasture, and woodland.  The dispute between
the parties over the location of the boundary line between their
land began in 1992 when appellee Charles Burford stopped the
appellants from cutting timber on what he believed to be his land.
The appellants filed their quiet title action in August of 1992.
The appellees answered and asserted that there was a boundary
between the tracts by acquiescence, which was marked by a fence. A
hearing was held on the appellants'  quiet title action in chancery
court in May 1996.

     First, appellants assert that the chancery court erred in
finding that there was a boundary line by acquiescence between the
two forty-acre tracts that followed a meandering fence that
appellee Charles Burford had used for at least twenty years to
contain cattle.  Appellants contend that the chancery court erred
in so finding because:  (1) there was no evidence proving that the
parties intended that the fence serve as a boundary line; (2) there
was no evidence that a fence ran contiguously between the two
forty-acre tracts; and (3) there was no evidence that there was a
seven-year period during which the parties acquiesced in the fence
as a boundary line.

     The case-law principles that govern whether a boundary line
has been established  by acquiescence are well settled.  Whenever
adjoining landowners tacitly accept a fence line or other monument
as the visible evidence of their dividing line and thus apparently
consent to that line, it becomes the boundary by acquiescence.
Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983).   A
boundary line by acquiescence is inferred from the landowners'
conduct over many years so as to imply the existence of an
agreement about the location of the boundary line.   Warren v.
Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Summers v. Dietsch,
41 Ark. App. 52, 849 S.W.2d 3 (1993).  The period of acquiescence
need not last for a specific length of time, but it must be for
"many years" or "a long period of time" sufficient to sustain the
inference that there has been an agreement concerning the location
of the boundary line.  See Seidenstricker v. Holtzendorff, 214 Ark.
644, 217 S.W.2d 836 (1949).  This period varies with the facts of
each case, just as all circumstantial evidence does, unlike the
seven years required to take land by adverse possession, which is
a statute of limitations for commencement of an action to recover
land adversely possessed.   See Ark. Code Ann.  5 18-61-101 (a)
(1987). Moreover, establishment of a boundary line by acquiescence
does not require adverse possession of the land by one party.  See
Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965).  When the
adjoining landowners occupy their respective premises up to the
line they acquiesce in as the boundary for a long period of time,
they and their grantees are precluded from claiming that the 
boundary thus acquiesced in is not the true boundary, although it
may not be.  Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138
(1972). A boundary line may be established by acquiescence whether
or not preceded by a dispute or uncertainty as to the boundary
line.  Id.  Where a boundary line by acquiescence can be inferred
from other facts presented in a particular case, a fence line,
whatever its condition or location, is merely the visible means by
which the acquiesced boundary line is located. See Camp v.
Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981).  The location
of a boundary line is a question of fact, and we must affirm a
chancery court's location of a boundary line unless its finding is
clearly against a preponderance of the evidence.   Rabjohn v.
Ashcraft, 252 Ark. at 571; Killian v. Hill, 32 4rk. App. 25, 795 S.W.2d 369 (1990).

     Steve Lee, appellee Charles Burford' s son-in-law, testified
on behalf of the appellees.  Mr. Lee testified that he was familiar
with the land at issue and that he lived on part of the appellees'
land.  He testified further that he helped maintain a barbed-wire
fence between the appellants' property and the appellees' property.
Mr. Lee testified further that the fence was enough to keep cows
from going north onto the appellants' property.  Mr. Lee testified
further that this barbed-wire fence was strung from posts and trees
and that the fence traversed the length of the appellees' forty-
acre tract.

     Appellee Charles Burford testified that his father sold the
appellants their forty-acre tract in 1957 and that his father had
sold an adjoining forty-acre tract to him in 1961.  Mr. Burford
testified that sometime in the 1960s he and appellant Austin
Jennings had had a conversation about cutting timber near the fence
line between their forty-acre tracts.  Mr. Burford characterized
this conversation as follows:  "When he decided to cut his timber
he wanted to know, he asked me did I know where the boundary line
was between me and him?  I said as far as I'm concerned, it's the
fence line.  That's what my dad always said.  I said you cut on the
north side, I'll cut on the south side of the fence."  Mr. Burford
testified further that appellant Jennings did not cut any trees on
the south side of the fence and that he (Burford) did not cut any
trees on the north side of the fence.   Mr. Burford testified
further that since 1951, when he and his father purchased cattle,
he had maintained the fence that he regarded as the boundary line
and that the fence had always been able to hold cattle on his side
of the fence.  He testified that he had kept the fence in repair to
hold cattle and that he had bushhogged a right of way approximately
twenty feet wide.  Mr. Burford testified further that, regardless
of the results of the surveys that had been made to determine the
boundaries of the two forty-acre tracts, it was his position that
the dividing line between the two tracts was the fence that he had
maintained since 1951 in order to keep cattle on the southern
tract.  This testimony by appellee Charles Burford and his
son-in-law,  Steve Lee, was contradicted by testimony given by the
appellants.

     The  standards governing our review of a chancery court
decision are well established.  Although we try chancery cases de
novo on the record, we do not reverse unless we determine that the
chancery court's findings of fact were clearly erroneous.  Holaday
v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).   In reviewing a
chancery court's findings of fact, we give due deference to the
chancellor's superior position to determine the credibility of
witnesses and the weight to be accorded to their testimony. Holaday
v. Fraker, 323 Ark. at 525; Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).   We conclude that the chancery court's finding
that the meandering fence was a boundary line by acquiescence was
not clearly erroneous.

     Second, appellants argue that the chancery court erred in
relying upon the testimony of the appellees' witness, Jimmy Askew,
concerning the survey that he conducted on the disputed property in
order to determine the true boundary line between the parties'
respective tracts.  At the outset, we note that there is little, if
any, connection between the accuracy of Mr. Askew's survey and the
chancery court's finding of a boundary line by acquiescence.  The
court's finding was based on the testimony of appellee Charles
Burford and that of his son-in-law, Steve Lee.  Burford himself
stated that, regardless of the results of the surveys, the boundary
line between the two tracts was the fence he had maintained to keep
cattle on the southern tract.  However, in their brief, appellees
explain the significance of Askew's survey to the chancery court's
finding of a boundary line by acquiescence by noting that the court
used the Askew survey as a reference point for concluding the fence
line was the acquiesced boundary between the two tracts of land." 
 Also, the chancery court's  decree does note that the boundary
line is the meandering fence " reflected by the Askew survey.  
Therefore, we will address the appellants' allegation of error
concerning the Askew survey.

     In essence, Mr. Askew testified that he had been a land
surveyor for approximately twenty-five years, that he was qualified
as a registered surveyor, and that he had conducted approximately
2,000 surveys.  With regard to the survey that he had done for
appellee Burford, Mr. Askew testified that, based upon previous
surveys he had done in the area, he knew the locations of the
southeast and southwest corners of the Southeast Quarter of Section
Three.  Mr. Askew testified further that he determined the boundary
lines of only the Southeast Quarter of Section Three and testified
further that his determination of  these boundaries "checks
extraordinarily well with the records."  The location of a boundary
line is a question of fact, and we affirm a chancery court's 
finding of the location of a boundary line unless the court's
finding is clearly against a preponderance of the evidence. Rabjohn
v. Ashcraft, 252 Ark. at 571.  The credibility and weight of
Askew's testimony was a matter for the chancery court to determine. 
See Killian v. Hill, 32 Ark. App. at 28.  Given this testimony by
Mr. Askew, we can not say that the chancery court erred in finding
his testimony credible because, in cases where there are
inconsistent theories as to the location of a boundary line,  a
survey establishing a boundary line may be based on artificial
monuments and these monuments may be established by parol evidence. 
See Garren v. Kelley, 249 Ark. 906, 462 S.W.2d 861 (1971); Rice v.
Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970). 

     Next,  appellants argue that the chancery court erred in
denying their hearsay objection that was made during the direct
examination of appellee Charles Burford.   Appellants'  counsel
objected on the basis of hearsay when Burford replied, "Yes, sir,"
after having been asked if he had any discussions with his father
concerning the location of the marker that was to divide the
forty-acre tracts.   The chancery court did not err in denying this
objection because appellee Burford's reply to the question was not
hearsay.  Hearsay is a statement made by an out-of-court declarant
that is repeated in court by a witness and is offered into evidence
to prove the truth of the matter asserted in the out-of-court
statement.  See Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377
(1981); Ark. R. Evid. 801(c).   Hearsay offered by an in-court
witness is inadmissible except as provided by law or by the Rules
of Evidence.  Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 735 (1996); Ark. R. Evid. 802.  Appellee Burford's reply of "Yes,
sir," is not hearsay because it is not a repetition of a statement
made out of court but, instead, is Burford's own statement that he
had had a discussion with his father.  A witness who states that he
or she had conversations or discussions with others, but does not
repeat what someone else said, has not violated the rule against 
hearsay.  See Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687
(1990).

     Finally, appellants contend that the chancery court's decree
is deficient in that it does not locate the boundary line between
the two forty-acre tracts by specific description.   Appellants
correctly note that chancery court decrees that establish boundary
lines must locate them by specific description.   See Harris v.
Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991).   The chancery
court's decree describes the boundary line between the parties'
land as the meandering fence "reflected by the Askew survey."  In
their brief, appellees seem to concede that this description of the
boundary line is not sufficiently specific.

     We agree that the description of the boundary line in the
chancery court's decree was not sufficiently specific.  However,
this lack of specificity does not constitute reversible error but
was, instead, a mere omission or oversight.  Pursuant to Arkansas
Rule of Civil Procedure 60(a), we grant leave to the chancery court
to amend the decree by adding a more specific description of the
boundary line between the parties' land.1

     For the reasons set forth above, we affirm as modified the
Columbia County Chancery Court's decree denying the appellants'
petition to quiet title and establishing a boundary line by
acquiescence between the parties' land.

     Affirmed as modified.

     Bird and Crabtree, JJ., agree.


     1  In a recent supreme court decision, Petrus v. The Nature 
Conservancy, 330 Ark. ___, ___ S.W.2d ___ (Dec. 11, 1997), the
court found that the decree, which did not identify the boundary
lines of the disputed property but ordered a future survey to
establish the boundary lines, lacked finality.  Thus, the supreme
court dismissed the appeal.  In our case, however, the decree
described the boundary line between the parties' land as the
meandering fence "reflected by the Askew survey."  There is no
unresolved issue that must be determined.  We have only granted
leave to the chancery court to amend the decree and provide the
legal description of the fence line reflected by the Askew survey.