Laura Mayes v. Robert Massery, Anna Massery, Beatrice Barre, Catherine Lahmann, Deborah Minor, and Bart A. Barre

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

LAURA MAYES

APPELLANT

V.

ROBERT MASSERY, ANNA MASSERY, BEATRICE BARRE, CATHERINE LAHMANN, DEBORAH MINOR, AND BART A. BARRE

APPELLEES

CA04-753

March 16, 2005

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CV-02-643]

HON. WILLIAM PICKENS MILLS,

CIRCUIT JUDGE

REVERSED AND REMANDED

Josephine Linker Hart, Judge

Laura Mayes appeals from a declaratory judgment of the White County Circuit Court that settled a boundary-line dispute. The trial court rejected her contention that the boundary was established by acquiescence or adverse possession and found that the boundary line between the respective parties was defined by a survey that was prepared in November 2002. On appeal, Mayes argues that the trial court erred in not finding that the eastern boundary of her property had been established by the acquiescence of the past and present owners along a line established by monuments and a partially existing fence. We reverse and remand.

Appellees Anna Massery, Beatrice Barre, Catherine Lahmann, Deborah Minor, and Bart A. Barre are the adult children of Henry Bart Barre and Julia Ann Barre. The senior Barres conveyed to the children a 40.84 tract of land in White County, hereinafter the "Barre property." Appellees Robert Massery and Anne Massery are owners of a separate 40.905 acre tract, hereinafter the "Massery property," lying directly north of and sharing a boundary with the Barre property. In 2002, appellant Laura Mayes and David Mayes purchased from Eulas R. and Edna G. Wiggs a roughly semi-elliptical tract of land that joins the Barre and Massery properties on the eastern boundary and runs to the centerline of Des Arc Creek on the western boundary. The tract contained between seven and nine acres.

A dispute over the use of a swimming hole began almost immediately after Laura Mayes purchased the property. After Mayes filed three criminal-trespass complaints against the appellees and bulldozed a road on the disputed strip of property, the appellees filed a declaratory-judgment action. Mayes counterclaimed to quiet title, asserting that the boundary had been established by acquiescence to an old fence that roughly ran along the western border of the Barre and Massery properties. In the alternative, she pled that she had acquired the land west of the fence by adverse possession. In their answer to the Mayes's petition, the appellees asserted that the fence was only a "fragment" and had never been used as a boundary line and that a November 18, 2002, survey properly defined the boundary.

In the appellees' case-in-chief, Bart Barre testified that he and his wife purchased the Barre property in 1980 from Jack Wilson. In 1981, the Barres built a cabin on the land, and in 2000, they built a retirement home. Referring to Plaintiff's exhibit 6, a graphic rendering prepared by surveyor Ronald Ouzts that depicted the surveyed lines and the location of an old fence, Barre acknowledged that there was a fence on the western side of the Barre property, but he described it as "awful crooked," and he noted that the land "falls off real fast down toward the creek" and that the fence was situated "mostly on top where it is flat." However, when testifying about the land around a "swimming hole"on Des Arc Creek, where the old fence jogged significantly to the west, he stated that "we've always known that fence as our property line." Barre further insisted that he and his family, including his grandchildren, "never crossed a fence to get to this creek" and that for "twenty-something years" he had considered the swimming hole to be on his property. Barre also conceded that he and Eulas Wiggs had entered into an agreement concerning the location of the southwestern corner of the Barre property; however, he claimed he did so because it gave him two-thirds of the swimming hole.

Ronald Ouzts was the only other witness called in the appellees' case-in-chief. He testified that on July 16, 2001, he was hired by Mayes's predecessor in title, John Wiggs, to survey the western boundary of the Barre property. He acknowledged that he found an old fence. However, he described the fence as meandering, and due to its placement on the top of a hill, he considered it to be only a "fence of convenience." According to Ouzts, Wiggs "suggested" that he use the fence as the boundary. Ouzts claimed that he rejected this suggestion because he thought that using the fence would make the boundary too far east and would therefore make the line not "in harmony with the rest of the section." According to Ouzts, his survey established the boundary line approximately fifty feet west of the fence. On cross-examination, Ouzts stated that his survey was based on breaking the section down. He admitted that his survey did not necessarily reflect what the parties had used as the property line and that he had "nothing to dispute" that the fence had been used as a property line.

In Mayes's case-in-chief, Alan Quattlebaum testified that he prepared several surveys of the disputed property. He stated that his first survey, dated November 18, 2001, and admitted into evidence as Plaintiff's exhibit 5, was based on existing surveys that were filed for record at the court house, monuments that he was able to locate on the land, and the fence, which he characterized as a "possession line." However, after Bart Barre complained to the State Land Surveyor's office, Quattlebaum prepared a second survey based on a breakdown of the section. This survey did not attempt to utilize the fence line in defining the boundary. Ultimately this survey, which was admitted as Plaintiff's exhibit 4 at the hearing, defined the boundary line that was accepted by the court.

Eulas Wiggs, Mayes's direct predecessor in title, testified that the fence had been used as the boundary line between the two tracks for many years and that "it was general knowledge in the community that the fence was used as the property line." He also stated that he was familiar with a rock that marked the northwest corner of the Barre property, so located as to intersect with the fence line. He did, however, acknowledge that some people did set their fences back three or four feet from the property line. Wiggs also testified that he and Bart Barre had agreed on a corner point for the southwestern boundary of the Barre property. According to Wiggs, they also discussed the location of a northwestern corner to the Barre property and reached a consensus; however, unlike the southwestern corner, that agreement was not reduced to writing.

David Mayes, Laura Mayes's father, testified that in 1973, he purchased what was to become the Barre property as a cotenant with Jack Wilson. He claimed that the fence was always regarded as the boundary line for the Barre property. Mr. Mayes acknowledged that the fence jogged significantly to the west near the swimming hole; however, he claimed that somebody changed the fence around the swimming hole. He stated that he believed that he did not own the swimming hole when he owned the Barre property. He also stated that people in the community commonly used the swimming hole.

Mayes herself testified that it was "her understanding" that the fence was the property line. She also stated that she remembered using the swimming hole as a child, knowing that it was not part of the Barre property when her father held title.

On appeal, Mayes argues that the trial court erred in not finding that the eastern boundary of her property had been established by the acquiescence of the past and present property owners and located on a line defined by monuments and a partially existing fence. In support of her argument, Mayes notes that appellee Bart Barre as well her father David Mayes, Eulas Wiggs, and herself, all testified that the fence was regarded as the boundary line. Further, she contends that "the trial court had two choices as to which boundary line to accept between the parties," one based upon "proportional measurement of section corners" and one determined using monuments and the fence line, and that the trial court was clearly erroneous in declaring the boundary line based on the former. She contends that the testimony at trial established that there were two monuments that had been regarded as the corners of her property, and those monuments corresponded to monuments noted in a 1908 survey that was filed for record.

Mayes also argues that the trial court erred because the elements of boundary by agreement were also proved at trial. She bases this argument on a writing signed by appellee Bart Barre and Eulas Wiggs, her predecessor in title, accepting the April 2002 survey. Additionally, Mayes argues that there was no proof of adverse possession by appellees that would give the trial court a "factual basis" for determining the boundary line that it set. She contends that there was no evidence that use of the "swimming hole" was hostile or exclusive. Finally, Mayes concedes that the phrase "land-locked" was never used at trial, but nonetheless asserts that by setting the boundary where it did, the trial court effectively denied her access to her property.

This court reviews equity cases de novo on the record, but we do not reverse unless we determine that the trial court's findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In reviewing a trial court's findings of fact, we give due deference to the trial judge's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. Clear error exists when, although there is evidence to support the decision under review, the reviewing court is left with a definite and firm conviction that mistake has been committed. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000).

Boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question and may be affected by the concepts of acquiescence and adverse possession. Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). A fence, by acquiescence, may become the accepted boundary even though it is contrary to the surveyed line. Id. When adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Id. It is not required that there be an express agreement to treat a fence as a dividing line; such an agreement may be inferred by the actions of the parties. Id. Acquiescence need not occur over a specific length of time, although it must be for a long period of time. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). A boundary line may be established by acquiescence whether or not it has been preceded by a dispute or uncertainty as to the boundary line. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). When 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 to boundary line is located. Id. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).

Here, both parties presented proof that they regarded the fence as the boundary line. Indeed, Bart Barre's candid admission that "we've always known that fence as our property line," makes the testimony concerning this issue unanimous. While it is true that both sides seemed to attach greater significance to the fence apparently depending on how it added or subtracted to their holdings, we find this aspect of their testimony to be of no moment. Furthermore, although Ronald Ouzts opined that the fence may have been a "fence of convenience," this opinion was undercut by his admission that he had "nothing" to dispute whether the fence was used as a boundary line. Accordingly, we hold that the trial court's decision to base the boundary line on any other basis besides the possession line established by the fence is clearly erroneous.

We are mindful that there are cases in which the supreme court noted that the mere existence of a fence without evidence of mutual recognition is insufficient to establish a boundary by acquiescence. See Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962). However, in the instant case there was mutual recognition of the fence as the boundary line.

We reverse and remand to the trial court for the entry of an order defining the eastern boundary of Mayes's property in accordance with Plaintiff's exhibit 6. Because we reverse and remand on Mayes's boundary-by-acquiescence theory of the case, we decline to address the balance of her argument concerning adverse possession and boundary by agreement.

Reversed and remanded.

Vaught and Crabtree, JJ., agree.