Jerry Garretson and Lisa Garretson v. Katherine McMurry

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

JERRY GARRETSON and LISA

GARRETSON, husband and wife

APPELLANTS

V.

KATHERINE MCMURRY

APPELLEE

CA 00-979

MAY 9, 2001

APPEAL FROM THE YELL COUNTY

CHANCERY COURT, DARDANELLE

DISTRICT, [NO. E-98-240]

HONORABLE VAN B. TAYLOR,

CHANCERY JUDGE

AFFIRMED

Appellants Jerry and Lisa Garretson appeal an order of the Yell County Chancery Court that found a boundary by acquiescence along a fence erected and in existence for many years between the parties' adjacent parcels of land. Appellants raise two points on appeal: (1) that the chancellor clearly erred in finding that a boundary by acquiescence was established between the parties; and (2) that the chancellor abused his discretion by admitting hearsay testimony. We affirm.

This case began with the filing of a petition on November 13, 1998, by appellants asking the chancery court to quiet title, continued with an answer filed by appellee asserting that title to the disputed strip should be vested in her as established in a boundary by acquiescence, and ended with the order on appeal that found in appellee's favor.

The lands at issue are located in Centerville, Arkansas. Appellants Garretsonpurchased their land on June 4, 1998; appellee Katherine McMurry purchased her land, consisting of ninety-two acres, on December 15, 1991. The lands abut one another with appellants' land lying to the west and appellee's to the east. A dirt road runs north and south between the properties, and a survey conducted at appellee's request just prior to purchase, dated December 11, 1991, demonstrated that the record boundary line between the properties ran down the middle of the dirt road. However, there existed an old barbed wire fence about thirty feet west of the dirt road toward appellants' property, some of which had been knocked down or had gone into disrepair over the years. The fence ran generally parallel to the road and thus encroached onto appellants' land.

The testimony at trial demonstrated that appellee lived on the land as a child, which was once owned by her father Marshall Holt. Appellee testified that she lived there until she was eleven years old and that she walked down the dirt road to retrieve the mail or to catch the school bus. Appellee was certain that the fence was in existence at that time, and she stated that the fence went completely around the acreage to contain the cattle her father raised. When she purchased the land in 1991, she had a survey prepared, and her opinion was that the fence was "very close" to what the survey line reflected. She wanted to repair the fence, to keep the old posts and wire that could be salvaged for sentimental reasons, and to restore the homeplace.

Appellee proceeded to hire help to repair the existing fence that contained the entire ninety-two acres by having new fencing incorporated to the existing barbed wire, page wire, and wooden posts. Some of the wire had trees grown into it, as evidenced by photographsentered into evidence.

John Nash performed the actual repair along the path of the old fence, which took about six days to complete and took place in the summertime. In further examination, appellee's counsel asked him if he asked appellants' predecessor in interest and grandmother, Ms. Mildred Cannon, about putting the fence up, because she was still the owner prior to appellants' 1998 purchase. Mr. Nash was about to answer the question of what Ms. Cannon said, which caused appellants' counsel to raise a hearsay objection. The question was withdrawn. As the testimony progressed, it was established that Mr. Nash did go talk to Ms. Cannon about the fence repair and that after the visit, Mr. Nash put the new fence at the same location as the old fence. These answers were carefully worded so that Mr. Nash would not repeat what Ms. Cannon said. The examination continued:

Q. Did [you] ever have any objection from her as to, during the period you were doing this work?

A. No.

Mr. Nash confirmed that there were old cedar posts and that he simply added posts between the existing ones and added new wire. He averred that he did not remove any of the old fence.

Mr. Nash's wife Irene testified next, stating that she was present when her husband was fixing the fence in 1994. Appellee's counsel asked if whether, when they went to speak with Ms. Cannon before Mr. Nash began work on the fence, she had any objection, and this question drew a hearsay objection. The chancellor overruled the objection, and Mrs. Nash was permitted to testify that Ms. Cannon never objected to work being done to replace thefence, either before or after its completion.

A cousin of appellee, Mr. James Holt, testified that he worked on the farm land as a young man with his uncle Marshall Holt. He remembered the fence being present then; he was present when it was repaired; and he confirmed the existence of the remnants of the fence.

Janet Saulters, a business partner with appellee, testified that she helped put up a gate across the road after appellee purchased the property. Ms. Saulters stated that the reason for gating the road was to prevent whomever was using the land at the end of the dirt road as a garbage dump from continuing to do so. When Ms. Saulters was there, she saw the old existing fence.

Testimony was also taken from Charles King, a lessee of appellee's land during the late 1970's or early 1980's, who stated that he performed patch work on the fences surrounding the acreage "here and there" while he was leasing. He recalled that he, too, used a gate across the road that was attached to the fence to contain his cattle.

Lewayne Holt, who was sixty-two years of age, reported to the chancery court that he had known of this land since he was a little boy, estimating his first recollection to be about fifty-three years prior to trial. Mr. Holt stated that the fence had been in existence in the same location for as long as he could remember, though some had been pushed down in one place by road graders.

David Brown, the son of a lessee of appellee's land, who lived there from approximately 1958 through 1960 or so, stated that when he lived there, his family used theland for cattle farming and that the fence surrounded the land. He also recalled that he returned to the land in the mid-1970's and that the fence was there at that time and that it consisted of barbed wire, page wire, and wood posts.

At the conclusion of the presentation of this evidence, the chancellor denied the petition of appellants to quiet title in them up to the middle of the road and found that the boundary line between the properties to be the fence as it presently exists. His order explicitly found that the fence had been in existence for a long period of time; that both parties' predecessors in title had used the land up to the fence line for various purposes including farming and cattle raising; that the consultations with Ms. Cannon (appellants' predecessor in interest) never drew any objection from her; that appellants purchased the land subsequent to the fence repair and restoration and never possessed any part of appellee's property inside the fence line; and that appellee met her burden of proving the implied existence of an agreement that the fence was the true boundary.

The standard of review of chancery cases requires us to perform a de novo review on the record. Ark. R. Civ. P. 52; see also Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). However, we will affirm a trial court's finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). A finding is clearly erroneous when, although there is evidence to support it, we are left, after considering all of the evidence, with a definite and firm conviction that a mistake has occurred. Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). Whether a boundary line by acquiescence exists is determined on theevidence in each individual case. Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872 (1960). In reviewing a chancellor's finding of fact, we give due deference to the superior position of the chancellor to determine the credibility of the witnesses and the weight to be accorded their testimonies. Ward, supra.

At times, a boundary between properties may exist at a different location from that depicted on a plat of survey. Summers, supra. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). 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. Id. This is a question of fact. Id. Parties need not expressly agree to treat the fence as the boundary line, but rather they may acquiesce by silence or quietude, and an agreement may also be inferred from the parties' actions. Summers, supra.

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 id; see also Ward, supra. However, our supreme court has held that acquiescence to a clearly established boundary line for over seven years will establish boundary by acquiescence. Rabjohn, et al. v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). Most boundary by acquiescence cases involve time periods of at least twenty years. See Kittler v. Phillips, 246Ark. 233, 437 S.W.2d 455 (1969) (over fifty years); Clay v. Dodd, 238 Ark. 604, 383 S.W.2d 504 (1964) (fifty years); Gregory v. Jones, 212 Ark. 443, 206 S.W.2d 18 (1947) (thirty-four years); Jennings v. Burford, supra (twenty years); Summers v. Deitsch, supra (twenty years).

A boundary line by acquiescence may be established by acquiescence whether or not preceded by a dispute or uncertainty as to the boundary line. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). The concept is based on the tacit acceptance by a landowner who apparently consents to the fence line or other monument as the visible evidence of the dividing line. Id. Where a boundary line 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 Ward, supra.

Applying these guiding precedents to the instant case compels us to conclude that the chancellor did not clearly err. Appellants make much ado about the fact that there was no proof that there existed a "mutual" agreement about this fence being the line, and that the only fair inference was that the parties merely permitted containment by the fence. Appellants cite cases in which the supreme court noted that the mere existence of a fence, without evidence of mutual consent, cannot sustain a finding of such a boundary. See Warren v. Collier, 262 Ark. 656, 559 S.W.2d 297 (1978); Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962). We do not quarrel with these general assertions. However, appellants omit the relevant facts in Warren that neither party acted such as to imply that either of them recognized the fence as the true boundary line, and that their actions in factdemonstrated a definite knowledge and recognition of the true boundary. Likewise in Carney, the supreme court recognized that the fence, which was placed by the true owner further back onto his property than was laid out by survey to accommodate the construction of a county road, was not a boundary by acquiescence because the evidence presented showed that the true owner continued to perform acts of ownership on the other side of the fence up to the road, implying and in fact asserting ownership of the property and not recognition of the fence as the line. These cases suggest that the party bearing the burden of proof simply failed to carry that burden based upon the acts of the parties. The case before us now is clearly distinguishable.

While the fence deteriorated over the years until its restoration in 1994, its existence for approximately fifty years was satisfactorily proved. Moreover, appellee demonstrated adequate proof that owners on both sides of the fence impliedly accepted this fence as the true line by appellee and her predecessor's occupation of the land up to the fence and by the encroached-upon property owners' failure to object. We cannot conclude that the existence of an implied agreement between the adjacent landowners was a clearly erroneous finding of fact.

Appellants' second point on appeal questions an evidentiary ruling. Appellants argue that the chancellor abused his discretion in permitting hearsay testimony about the response of Ms. Cannon to the restoration of the fence between her property and that belonging to appellee. A trial court is granted wide discretion on the admission of evidence, and its rulings will not be reversed in the absence of a manifest abuse of that discretion. O'Fallonv. O'Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). We hold that the chancellor did not err.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). A "statement" for these purposes may include an oral or written statement or nonverbal conduct of a person, if it is intended by him as an assertion. Ark. R. Evid. 801(a).

While we might agree at the outset that stating whether Ms. Cannon objected to the work on the fence appears to constitute hearsay evidence, there is an exception to the hearsay rule in this context. It is well-settled that declarations and admissions of one in possession of land relating to the title thereof and adverse to his interests are admissible against him; and declarations and admissions of a person made while in possession adverse to his title are admissible against his successors in interest and all who claim under him. See Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964); Howell v. Simpson, 216 Ark. 873, 228 S.W.2d 40 (1950); and see Ark. R. Evid. 804(b)(3). Therefore, this evidence was properly before the chancery court to consider.

We affirm the chancery court's order in all respects.

Vaught and Crabtree, JJ., agree.