Wingmead, Inc. v. Randall Lee

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-174

DIVISION II

CA05-174

October 12, 2005

AN APPEAL FROM MONROE COUNTY

WINGMEAD, INC. CIRCUIT COURT

APPELLANT [No. E 2000-78]

v. HONORABLE BENTLEY E. STORY,

CIRCUIT JUDGE

RANDALL LEE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

This case involves a boundary line dispute between adjoining landowners, appellant Wingmead, Inc., and appellee Randall Lee. Wingmead filed a quiet title action, seeking to quiet title to the south boundary of its property according to its recent survey. Lee then filed a counter-petition to quiet title to his north boundary. The trial court found that an intermittent fence line had become the boundary line by acquiescence and quieted title in Lee according to the fence line. On appeal, Wingmead argues that the trial court erred in (1) concluding that remnants of an old fence line were clear and visible evidence of a dividing line for purposes of acquiescence; (2) finding that there was an implied agreement to accept the fence as the boundary line as a result of posting along the fence line; and (3) finding acquiescence regarding that portion of the property that Lee had owned for only a period of five or six years. We affirm.

Wingmead owns 111 acres of land, which lie directly north of Lee's approximately 160-acre tract. The boundary between the parties' properties consists of wild and unimprovedtimber land, which frequently floods and is used primarily for duck and deer hunting. According to the testimony of Wingmead's employee, Timothy Doepel, Wingmead acquired its property in 1976; the deed, however, reflects that Wingmead acquired its property in 1989. Lee acquired his property in two separate conveyances; he was deeded the east one-half from various owners in 1986 and was deeded the west one-half in 1994.

Doepel, who is employed by Wingmead as a wildlife manager, testified that he and others at Wingmead were not certain exactly where their south boundary line was located prior to having a survey completed in 2001, after the dispute with Lee arose. Doepel testified that there existed remnants of an old fence that ran along the southern border of Wingmead's property and that both parties had posted "No Trespassing" signs and had painted trees along this fence line with purple paint to delineate where the boundary was located. Doepel stated that there had never been a dispute over the boundary line with the adjoining landowners until the current dispute with Lee. According to Doepel, for the twenty-one years that he had been an employee of Wingmead prior to the survey in 2001, he had "respected the old fence line as basically the boundary line, all of us did until the new survey ...." Doepel also testified that the prior owner had posted signs along the fence line and that some of these signs still existed, although they had become embedded in the trees.

Doepel testified that Wingmead decided to have a survey done because Lee started encroaching upon its property north of the fence line by pushing trees onto Wingmead's property with his bulldozer and began hunting in a "duck hole" north of the fence line, which he agreed was "at the root" of the parties' dispute. According to Doepel, Wingmead hired a surveyor in 2000 to locate the boundary line. Before the surveyor could finish, the survey markers were pulled out of the ground, and the surveyor refused to complete the survey. Wingmead then filed suit against Lee in June 2000, seeking to quiet title to the boundary between the properties. Wingmead hired Keith Murders to do another survey in August 2000.When some of these markers were also pulled out, Wingmead filed an amended complaint to add a claim for trespass.

There were four different surveys introduced into evidence. Lee had a survey done by the Sam Word Company in 1986 when he bought the property. This survey reflected the north boundary line of Lee's property as being the existing fence line. A survey completed in 1989, also by Sam Word, again reflected the boundary line as the fence line. In 1999, a survey was prepared for Wingmead by Donald Sheffer, who used the same pins that were placed in the Sam Word surveys. This survey also placed the boundary line along the old fence line. However, Sheffer did not show remnants of the old fence on the west half of Lee's property, which Lee acquired in 1994, nor did he show the location of the actual boundary line. Keith Murders's survey, completed in 2000, used different monuments and found that Wingmead's boundary line was south of the old fence line. Murders testified that his survey was more accurate because it complied with applicable surveying standards by running a straight line between the corners of the quarter sections. According to Murders, it is not acceptable to have a "bowed" or "curved" boundary line between quarter sections, as is found in each of the other surveys that follow the fence line. Murders testified that he did see the remnants of an old barbed wire fence along the south boundary. He stated that the fence was "pretty definite" along the eastern side but that it "pretty much disappears" along the western side, other than some wiring in the trees. Murders also testified that he saw painted trees along both sides of the old fence line, along with posted signs. Murders stated, however, that he would not consider the old fence line as visible evidence of a dividing line between the parties.

Donald Sheffer testified that he used the Word survey as a reference when surveying the boundary line in 1999. Sheffer stated that he started at the western termination of the boundary, where the old fence was still in existence, and found that, if he extended a linefrom that point to the existing iron pin at the midpoint, the line fell "more or less" along an old fence line. Sheffer admitted that this line was "bowed" and that a boundary line is usually supposed to be straight. Sheffer stated that he found remnants of an old fence across the entire quarter section, although the fence was not continuous. Sheffer testified that the fence line along the eastern side was in good repair, that a path had recently been cleared out, and that new steel fence posts had been placed along the old line. He stated that there were signs and painted trees along the entire fence line. On the western side, Sheffer testified that the old fence consisted of pieces of barbed wire embedded in the trees.

Lee testified that he started hunting on his property in 1985 before he bought the eastern half in 1986 and that he had also been hunting on the western half of his property since 1986, even though he did not buy it until 1994. Lee testified that there were signs posted on both sides of the fence line, along with painted trees, when he moved there. He stated that he also posted signs on his side of the fence line in 1986. Lee testified that he also had on his property several duck hunting benches and a deer stand that had been there since 1986. Although these are on the south side of the old fence line, Lee testified that they are on the north side of Murders's surveyed line. In addition, Lee stated that Wingmead had cut a right-of-way along the old fence line three or four times in the last ten years so that they could ride four-wheelers around the area, and that Wingmead would post signs and paint trees along the fence line every year. According to Lee, during the sixteen years that he had lived on his property, he had accepted the fence line as the boundary between him and Wingmead.

After hearing the evidence and viewing the disputed area, the trial court stated in a letter opinion that the Murders survey accurately reflected the quarter section line. However, the trial court also found that the parties and their predecessors in title had tacitly accepted the fence line as the boundary line between the parties for a long period of time. Thus, thecourt found that the intermittent fence line is the boundary line by acquiescence. However, because of the inadequacy of the existing surveys, the court ordered a new survey to locate and place markers along the court-determined boundary line. According to the court, the new survey would signify the fence line as the boundary line but would also indicate the true quarter section line, as well as the distances between the two lines. Wingmead appealed the trial court's decision. This court dismissed the appeal for lack of a final order. Wingmead, Inc. v. Lee, No. CA02-1263 (Ark. App. Sept. 17, 2003).

Following the dismissal of the appeal, Wingmead filed a petition seeking to hold Lee in contempt for failing to have a survey conducted as ordered establishing the boundary line found by the court. Lee responded that the survey had been conducted. The trial court entered an order finding that Lee had complied with the earlier decree and adopted the survey. This appeal followed.

This court reviews traditional 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).

For its first point, Wingmead argues that the trial court erred in using the old fence line to establish the boundary, stating that it was not sufficiently visible.

The fence line is just the means by which the parties locate their line. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained. See, e. g., Koennicke v. Maiorano, 682 A.2d 1046 (Conn. App.1996); Theriault v. Murray, 588 A.2d 720 (Me. 1991); Marvel v. Regienus, 108 N.E.2d 545 (Mass. 1952); Geneja v Ritter, 347 N.W.2d 207 (Mich. App. 1984); Seely v. Hand, 402 A.2d 162 (N.H. 1979); Orton v. Carter, 970 P.2d 1254 (Utah 1998).

In Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), the supreme court upheld the trial court's finding of boundary by agreement where the corners of the boundary line were marked with two concrete posts and there was also a partial fence that ran directly between the imaginary line between the posts. In Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981), this court held that the trial court did not err in establishing an old fence line as the boundary. Camp contended that the fence had become so deteriorated over the years that it could not be accurately located at the time Liberatore reconstructed the fence. The trial court found that the remnants of the old fence line were sufficiently visible to enable Liberatore to accurately locate them on ground and erect a new fence one foot south of old fence line. This court affirmed, noting that it was the intention of the parties and the significance that they attach to the fence rather than its location or condition, is what is to be considered.

In the present case, the trial court apparently viewed this fence line as sufficiently visible to satisfy the boundary requirement. Donald Sheffer stated that he found remnants of an old fence across the entire quarter section, although the fence was not continuous. His survey placed the boundary line along the old fence line. Timothy Doepel testified as to the existence of the old fence remnants. He described the remnants as wire embedded in trees approximately 100 yards apart. Keith Murders testified that he did see the remnants of an old barbed wire fence along the south boundary. He stated that the fence was "pretty definite" along the eastern side but that it "pretty much disappears" along the western side other than some wiring in the trees. We cannot say that the trial court was clearly erroneous in using the old fence line to establish a boundary by acquiescence in this case. Both parties testifiedthat they considered the fence to be the boundary prior to the dispute. We affirm on this point.

In its second point, Wingmead argues that the trial court erred in finding that the parties evidenced their acquiescence in the old fence line by painting trees near the fence line and by posting "no trespassing" signs on trees. The trial court also recognized that the signs were not exactly on the fence line. This is another variation of the argument presented in the first point, that there was insufficient evidence to support the finding of a visible boundary that had been acquiesced in by the parties. The posting along and on either side of the fence line shows the importance the parties placed on the fence line as the boundary. See Camp, supra. Here, Timothy Doepel testified that he posted and painted trees and sometimes followed the old fence line. He also testified that he sometimes did not post on the fence line because he did not know exactly where the line ran. Lee testified that there were posted signs on both sides of the fence line.

While it is true, as Wingmead argues, that a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side, see Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962); Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962); Robertson v. Lees, ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004), it is also true that Wingmead acquiesced in the fence line as the boundary. This resulted in the recognition of the fence as the boundary line, and Wingmead is precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. See Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). We affirm on this point.

In its third point, Wingmead argues that the trial court erred in establishing a boundary by acquiescence because the period of acquiescence was less than seven years. Wingmead argues that, because Lee acquired part of his land in 1986 and the rest in 1994, he cannotmeet the requirement of proving acquiescence for the requisite period of seven years prior to suit being filed in June 2000.

The time period of acquiescence need not last for a specified length of time, but it must be for "many years" or for "a long period of time" sufficient to sustain the inference that there has been an agreement concerning the location of the boundary line. See Summers v. Deitsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993); see also Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). However, our supreme court has held that acquiescence to a clearly established boundary line for over seven years will establish boundary by acquiescence. Rabjohn, supra. Most boundary by acquiescence cases have involved time periods of at least twenty years.1 However, in Jennings, this court held that the period of acquiescence need not last for a specific length of time but must be for "many years" or "a long period of time" and that this period varies with the facts of each case.

Here, Timothy Doepel testified that Wingmead had acquiesced in the fence line for more than twenty years.2 Lee testified that he had acquiesced in the fence line since 1986. Although there is no clear testimony that Lee's predecessor in title acquiesced in the fence as a boundary, it can be inferred from Doepel's testimony that Lee's predecessor also posted in the same vicinity of the old fence line. This was sufficient to establish the boundary because it shows acquiescence for more than seven years. In Rabjohn, supra, the supremecourt held that there are some situations in which the acquiescence need not extend for the full seven-year period. Other cases have held that the acquiescence need not last for the entire seven-year period. Jennings, supra.

In Harris v. E.B. Mooney, Inc., supra, our supreme court appeared to allow successive landowners to tack successive periods in order to meet the requirements for a boundary by acquiescence. The opinion does not state how long each person acquiesced in the wall being the boundary; however, the court noted that the total period was more than twenty-four years. This court, in Price v. Mauch, 1 Ark. App. 348, 616 S.W.2d 738 (1981) (supplemental opinion denying rehearing), relied on the fact that the parties and their predecessors had acquiesced in a fence being the boundary line in modifying the trial court's decision that the appellees owned the property in dispute to the fence but not to the quarter line. Although it was unclear as to how long the acquiescence had lasted, one witness related that the fence had been considered the boundary for twelve years and the other testified that it had been the boundary line since 1940. The rule allowing tacking appears to be the majority rule.3 We affirm on this point.

Affirmed.

Griffen and Vaught, JJ., agree.

1 See Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969) (over fifty years); Clay v. Dodd, 238 Ark. 604, 383 S.W.2d 504 (1964) (fifty years); Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964) (more than fifty years); McPherson v. Blair, 224 Ark. 238, 273 S.W.2d 852 (1954) (more than twenty-five years); Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W.2d 836 (1949) (more than thirty years); Gregory v. Jones, 212 Ark. 443, 206 S.W.2d 18 (1947) (thirty-four years); Harris v. E.B. Mooney, Inc., 211 Ark. 61, 199 S.W.2d 319 (1947) (more than twenty-four years); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997) (twenty years); Summers v. Deitsch, supra (twenty years).

2 As noted above, the deeds reflect that Wingmead acquired is property in 1989. However, this still meets the requirement that the acquiescence extend more than seven years. Rabjohn, supra.

3 See Helmick v. Davenport, R.I. & N.W. Ry. Co., 156 N.W. 736 (Iowa 1916); Brock v. Muse, 22 S.W.2d 1034 (Ky. 1929); Jackson v. Deemar, 127 N.W.2d 856 (Mich. 1964); James v. Griffin, 626 N.W.2d 704 (N.D. 2001); Corbin v. Cowan, 716 A.2d 614 (Pa. Super. Ct. 1998); RHN Corp. v. Veibell, 96 P.3d 935 (Utah 2004); Lilly v. Lynch, 945 P.2d 727 (Wash. App. 1997); Olin L. Browder, The Practical Location of Boundaries, 56 Mich. L. Rev. 487 (1958).