Bonnie Hodge, as Trustee of the Hermit Hollow Realty Trust v. Chris Cozad, Julie Cozad, Gene Nichols, Carol Nichols and Paul Culbreath

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA05-729

March 1, 2006

BONNIE HODGE, as Trustee of the

HERMIT HOLLOW REALTY TRUST AN APPEAL FROM FULTON COUNTY

APPELLANT CIRCUIT COURT

v. [No. CV 2003-28-2]

CHRIS COZAD, JULIE COZAD, HONORABLE HOWARD TEMPLETON,

GENE NICHOLS, CAROL NICHOLS, SPECIAL CIRCUIT JUDGE

and PAUL CULBREATH

APPELLEES AFFIRMED

John Mauzy Pittman, Chief Judge

Appellant Bonnie Hodge, trustee of the Hermit Hollow Realty Trust, brings this appeal from the Fulton County Circuit Court's denial of her claims that she owns certain property by adverse possession or that she proved that a fence is the boundary by acquiescence between her property and those of the appellees, Chris and Julie Cozad, Gene and Carol Nichols, and Paul Culbreath.1 Hodge's sole point on appeal is that the trial court clearly erred in finding that she had not proven the elements of a boundary by acquiescence or the elements of adverse possession. We disagree and affirm.

The Cozads, the Nicholses, and Culbreath each own property located to the north of an eighty-acre tract owned by Hodge. Hodge also owns separate ten-acre tracts located between the Nichols and Cozad tracts and between Cozad and Culbreath. The fence and road at issue cross these tracts. On April 17, 2003, the Cozads and Nicholses filed their complaint against Hodge, alleging that Hodge was seeking to claim their property south of a fence and road north of the true boundary. The complaint also asserted that the Cozads and Nicholses had been in possession for more than seven years and that they had paid taxes on the property. Finally the complaint sought to quiet title in their respective tracts.

Hodge filed an answer and counterclaim, denying that the Cozads or Nicholses were in possession of their property south of the fence and blue road depicted in exhibits. Hodge sought to establish that she and her predecessor-in-title had been in possession for more than fifteen years and that the fence had been agreed upon as the boundary for that same period. The counterclaim sought to establish title by adverse possession, with the northern boundary as the fence. The Cozads and Nicholses denied the material allegations of the counterclaim. Hodge also filed a third-party complaint against Paul Culbreath, asserting similar claims to her counterclaim. Culbreath denied the material allegations of the third-party complaint.

Paul Culbreath testified that, in discussions with Bonnie Hodge, he asserted that he had an easement as depicted in the exhibit by a red line and that the exhibit's blue road was not on the boundary line. He said that Hodge really did not have a comment other than that, when she purchased the property, she was told that there were no easements on her property. He also said that she did not say anything about the blue road being the boundary. Culbreath stated that, during the earlier suit, Hodge's position was that the blue road was not on her property and that no claim was made by Hodge that she owned up to the blue road. He also stated that he reviewed the surveyed corners of his property with David Hicks and that they were accurately reflected on Exhibit J9. He stated that the blue road was in existence when he purchased the property in October 1991. He described the fence as "more or less nailed to the trees." He also estimated that the fence was built approximately twelve to fourteen years prior to trial.

Culbreath said that he removed part of the fence where the blue road turns south in his thirty-acre tract in the latter part of 1995, after David Hicks no longer ran cattle in that area. He stated that Hodge placed piles of rocks and logs across the blue road. He also stated that the conveyance from the DeShazos to Hicks was subject to an easement shown by the red line. Culbreath also related that, at the time he purchased his property, he was concerned that the easement was not located where it was supposed to be but that DeShazo assured him that there would not be a problem. It was his understanding that the road to his property was by the blue road. Culbreath also asserted that he and Hicks never had any problems about Culbreath accessing his property.

Culbreath stated that he allowed Hicks to run his cattle on his south 160 acres and not the thirty-acre tract containing the blue road. He also stated that Hicks did not have any cattle after late 1994 or 1995, describing what is now Hodge's property as woods and rock with no food for cattle. He also stated that Hicks's cattle had the run of the northwest quarter section. Culbreath also described a survey introduced as Exhibit J24. He said that the survey was conducted in February 1989, prior to his purchase of the property. He also described the fence as 204 feet north of the true boundary line on the southwest corner and 240 feet north of the southeast corner. Culbreath stated that he never saw Hodge use the blue road in the area depicted as the western ten acres on Exhibit J9 or do any work along the blue road. He also denied Hodge's claim that she repaired the fence. Culbreath said that he never considered the fence to be the boundary.

Gaylon Turner, a retired real-estate agent, testified that he was the broker who sold the Nicholses and the Cozads their properties. He was also the broker of the sale between the DeShazos and David Hicks. Turner stated that he commissioned the February 1989 survey and that the survey depicted a fence. According to Turner, the blue road was in existence but was not the boundary line because the true line was approximately 200 feet south of the blue road. Turner stated that he was certain that he told the Cozads, the Nicholses, and Paul Culbreath where the survey line was located and that the fence was not on the line.

Turner stated that there were no references to the fence in the escrow contracts to the Cozads or Nicholses. He recalled a conversation with Paul Culbreath during which they discussed the road's not being where it was called for in the documents. He also said that David Hicks was familiar with the 1989 survey but that Hicks's purchase of the property was not the reason he commissioned the survey.

Gene Nichols testified that he and his wife made arrangements to purchase their property in 1991 or 1992. He stated that the first time he visited the property would have been in the summer of 1993 but that he did not walk the boundary line until the fall of 1994. He said that this was when he discovered the fence and the survey markers. He also stated that David Hicks was present and pointed out the surveyed line to him. Nichols admitted that he did not have another survey conducted until 2003 and built a fence on the surveyed line just prior to the present suit being filed. He stated that, after the fence was built, he learned for the first time that Bonnie Hodge was claiming up to the green fence line. He admitted that he had received a copy of the Exhibit J24 survey showing the fence. However, he added that the blue road was not indicated on the plat. Nichols admitted that, prior to the time of his survey, he never used his property south of the green fence. He also admitted that Hodge had used and improved the blue road but denied seeing David Hicks use the blue road.

Chris Cozad testified that he purchased his property in 1991 but did not walk the boundary until some six to eight months later. He stated that he found the fence and the blue road, which he characterized as more of a trail than a road. He also said that he had a "good idea" of where his boundaries were because he took his own measurements and found the stakes. Cozad stated that he never discussed the southern boundary with David Hicks. He also stated that his first contact with Bonnie Hodge occurred in 2002 when he discovered Hodge's camper trailer on his property. He said that this led to a confrontation during which Hodge informed him that she was going to be taking his property from him. On cross-examination, he admitted that he had received a copy of Exhibit J24. He also stated that the existence of the fence did not concern him because all of the land was at one time owned by Mr. DeShazo. He also admitted that there were signs that the blue road had been used and improved.

Julie Moen, the wife of Chris Cozad, testified that David Hicks had other access to his property and did not use the blue road. She also admitted to being present during the confrontation between her husband and Bonnie Hodge. She admitted seeing Hicks utilizing the blue road as well as other access. She also stated that she had seen cattle and horses on the property but was not sure if they belonged to Hicks. She also stated that there was nothing prohibiting Hicks's cattle from utilizing the disputed area south of the blue road because the fence was in such a condition that they could get on her property.

David Hicks testified that he once owned 160 acres as shown in Exhibit J9 and now owned by Bonnie Hodge. According to Hicks, both the blue road and the green fence were in existence at the time of his purchase in August 1989. He stated that he maintained and repaired the fence line. He stated that he accessed his residence by using the northern leg of the blue road. Hicks said that he ran cattle across Paul Culbreath's 160 acres south of Hodge's property but that his cattle had access to the disputed area south of the blue road. Hicks stated that he ran cattle from 1990 to 1997. He also asserted that he cut firewood in the disputed area, as well as maintained the road along the green fence.

According to Hicks, he recognized the green fence as his boundary line and so described it when he showed the property to Hodge. He also described a conversation he had with Gene Nichols wherein Nichols asserted that the fence was not the boundary line and needed to be relocated. Hicks also denied being aware of the Exhibit J24 survey at the time of his purchase or receiving a copy from Gaylon Turner.

Bonnie Hodge testified that she became interested in purchasing some property in March 1997 and viewed the property she now owns. She stated that she used the blue, red, and pink roads to traverse the property prior to her purchase. She stated that she observed a fence along the north side of the blue road. She stated that it was important to her to know her boundaries because she did not want any hunters crossing her lands. She stated that David Hicks had cattle on his property at the time she was viewing the property. She said that she understood the green fence to be the boundary. Hodge testified that she had rock placed on the blue road in the spring of 1998 to make the road more passable because she was planning to build her house. She also stated that she did other work along the blue road such as trimming limbs and digging a ditch. She said that she traveled along the trail beside the green fence by horseback and all-terrain vehicles (ATVs). Utility poles were placed in the disputed area south of the blue road, she said. Her husband also cut firewood from the trees removed to make way for the utility poles, she stated. Hodge claimed that she maintained the fences, in part, to prevent her horses from escaping. She stated that she first learned that the blue road was not on her property and that the fence was between 200 and 250 feet north of the true boundary during the companion litigation over Paul Culbreath's easement. She stated that neither the Cozads, the Nicholses, nor Culbreath told her to stay out of the disputed area.

On cross-examination, she stated that the fence she maintained along the blue road was the northern leg. She also stated that the real-estate agent told her that the fence along the blue road was the boundary line. She also said that she was unaware of the Exhibit J24 survey until later, after her purchase.

In its order, the trial court found that Hodge failed to meet her burden of proving the elements of adverse possession because Hodge failed to show that she or her predecessor in title possessed appellees' lands for more than seven years. The trial court cited specific testimony from Hodge's predecessor in title, David Hicks, that Hicks did not contend that he used or possessed the land for the statutory period and that he also made statements concerning the green fence not being the boundary. The court also rejected the boundary by acquiescence claim, noting that there was no showing of an implied agreement as to the boundary line nor a showing of tacit acceptance of the fence as the boundary. The order also approved the settlement of the other cases that had been consolidated with the present case. This appeal followed.

The standards governing appellate review of an equity matter are well established. Although this court reviews equity cases de novo on the record, 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. The location of a boundary line is a question of fact, and we affirm a trial court's finding of the location of a boundary line unless the court's finding is clearly erroneous. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).

Hodge divides her argument into two parts. In the first part, she asserts that she and her predecessor in title adversely possessed the disputed property for more than seven years. She points to several actions she and Hicks took that she contends support her position, including repairing the fence north of the blue road, running cattle on the property, cutting the grass, pouring concrete, and riding ATVs. However, she does not address other trial testimony, such as Paul Culbreath's testimony that Hicks did not have any cattle after late 1994 or 1995. This would establish a break in the seven years' possession necessary to establish title by adverse possession. The period from when Hodge purchased the property until suit was filed was less than seven years. Therefore, she cannot establish title by adverse possession without the possession of Hicks, her predecessor in title. Further, her own testimony indicated that Hicks's cattle were not in the disputed area. As the trier of fact, the trial judge was entitled to accept or reject all of the testimony, or any part thereof that it believed to be true or false. Wal-Mart Stores, Inc. v. Thomas, 76 Ark. App. 33, 61 S.W.3d 844 (2001); White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). Given the deference accorded the trial judge in determining the credibility of the witnesses and the weight to be given their testimony, we affirm on this subpoint.

Hodge also claims that the trial court erred in not finding that she had established a boundary by acquiescence. The trial court found that there was no evidence that would indicate either an implied agreement or a tacit acceptance of the fence as the boundary line. "It is the agreement and acquiescence, not the fence itself, that controls. 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." Camp v. Liberatore, 1 Ark. App. 300, 303, 615 S.W.2d 401, 404 (1981). Citing Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972), the Camp court stated: "While the construction and maintenance of a division fence, when mutually regarded as a boundary, may constitute recognition and acquiescence[,] mere existence of a fence between adjoining landowners is not of itself sufficient. There must, therefore, be a mutual recognition of the fence as the dividing line." Camp at 303, 615 S.W.2d at 403.

David Hicks testified that he considered the fence to be the boundary. However, Hicks also testified concerning a conversation with Gene Nichols wherein Nichols stated that the fence was not the boundary line and needed to be moved. Paul Culbreath also testified that he never considered the fence to be the boundary line. This is some evidence that there was no agreement to treat the fence as the boundary line. The mere fact that the fence is old does not prove that there was acquiescence to the fence as a boundary, especially where one person owned the property on both sides of the fence. Gaylon Turner and Chris Cozad both testified that Jim DeShazo owned all of the property at one time. Without some manifestation of intent to recognize a fence or other monument as the line there can be no boundary by acquiescence. We cannot say that the trial court clearly erred.

Affirmed.

Robbins and Baker, JJ., agree.

1 This appeal is factually related to, and was consolidated with, a prior appeal to this court. Culbreath v. DeShazo, No. CA02-311 (Ark. App. Dec. 23, 2002).