Robert Murphy and Cathy Murphy et al. v. David M. Dumas and Donni S. Dumas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

ROBERT MURPHY

AND CATHY MURPHY, ET AL.

APPELLANTS

v.

DAVID M. DUMAS AND

DONNI S. DUMAS

APPELLEES

CA01-111

OCTOBER 10, 2001

APPEAL FROM THE UNION COUNTY CHANCERY COURT

[NO. E98-1000-2]

HONORABLE EDWARD P. JONES, CHANCELLOR

AFFIRMED

This case involves a boundary-line dispute between appellees David M. Dumas and Donni S. Dumas and the owners of parcels of land that adjoin the Dumas's property on three sides. Appellants Billy and Margaret Campbell, Edward and Brenda Ginger, John and Delphine Cottrell, and Ray and Sandra Kinley ("the Campbells") claimed to have acquired title to land based upon the establishment of a boundary line by acquiescence against the Dumases. Appellants Richard, Cherly and Charles Ray ("the Rays") and Robert and Cathy Murphy ("the Murphys") claimed that a survey done by David Dumas was inaccurate, and that their commissioned survey established the correct boundary lines for their adjoining property. The chancellor ruled that the Campbells had not acquired title to the land by acquiescence, found the Dumas survey to be the accurate survey, andquieted title in the Dumases' favor. The Murphys, Rays, and Campbells appeal, arguing that the chancellor erred in relying on the Dumas survey and by not finding a boundary by acquiescence. We affirm.

The Dumases own a forty-acre tract of land in Union County, Arkansas. The Campbells own land west of the Dumas property, the Murphys own land to the north of the Dumases, and the Rays own property that abuts the east line of the Dumas tract. Along the west line of the Dumas property, which is the east line of the Campbell property, is a road running north and south that, according to testimony, has been in use for over fifty to sixty years. West of this road, also running north and south, is an old fence. East of the road are some sixty painted trees.

The land line dispute arose after David Dumas, a surveyor, inherited his property in 1996, and did a survey in 1998, after he noticed a new chain link fence around the Rays' property. Murphy and Ray had previously both commissioned surveys, done by Sam Paulus, that conflicted with the Dumas survey. The Dumas survey indicated that Richard Ray's chain-link fence encroached on the Dumas land by twenty feet, but the Paulus survey found the fence was on the boundary line. Both surveys determined that the Campbells' land began west of Murphy Road, but the Campbells asserted that their boundary line was east of both the road and the old fence that ran along the road, along the line of painted trees.

The appellants sued the Dumases for trespass, and sought to quiet title to a portion of the disputed property based on the claim of boundary line by acquiescence. The Dumases counterclaimed, seeking quiet title based upon the description provided by their survey. A trial was held on April 6, 2000, where the chancellor heard testimony from the parties, Wilmer Welch, whose grandfather settled on the Campbell property, and Michael Nolan, a forester who worked for theCampbells. The court also heard testimony from surveyors Chris DeFrance and Sam Paulus. Paulus testified that the discrepancies between his and Dumas's survey boiled down to the southeast corner because there were "some double corners there apparently." DeFrance, a surveyor who reviewed the Paulus and Dumas survey, testified that Dumas followed standard surveying practices in doing his survey and the Dumas survey was accurate.

The trial court found the Dumas survey accurately established the parties' common boundary line and held that the Campbells failed to prove a boundary line by acquiescence. The Campbells, Rays and Dumases appeal.

Chancery cases are reviewed de novo on appeal. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). We will not reverse a chancellor's finding of fact in a boundary line dispute case unless the finding is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. The location of a boundary line is a question of fact. Id. 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 their testimony. Id.

First, though the arguments are combined and somewhat overlap in the appellants' brief, we address separately the Campbells' argument that the painted trees created a boundary line by acquiescence. The case-law principles that govern whether a boundary line has been established by acquiescence are well settled. 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 lengthof 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. Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W.2d 836 (1949). This period varies with the facts of each case, just as with all circumstantial evidence, unlike the statutory seven years required to take land by adverse possession. Ark. Code Ann. § 18-61-101(a) (1987). Moreover, establishment of a boundary line by acquiescence does not require adverse possession of the land by one party. 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.

The Campbells assert the boundary line, established by acquiescence, begins at a concrete monument at their southeast corner, which Dumas agrees with, and then travels northeasterly and crosses Murphy Road at some point and continues along the painted trees to the "forty corner" marked by an iron pin. They argue that this painted tree line has been recognized as the line for over sixty years, and that testimony at trial supported a finding that the painted trees were the boundary between the parties. The Dumases counter that the painted trees are not a "fence line or other monument" as visible evidence of their dividing line, citing Hedger Bros. Cement & Mtl. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000), where this court discussed whether a levee constituted such visible evidence. In Hedger, this court stated:

The ruling was primarily based upon the fact that there was no actual object lying between appellants' land and appellee's land that could serve as a marker for a boundary. A boundary by acquiescence isusually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. See Palmer v. Nelson, 235 Ark. 702, 361 S.W.2d 641 (1962). A boundary by acquiescence has been affirmed when the parties tacitly agreed on a line running between two marks, such as concrete stobs, in Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), and trees in Ward v. Adams, supra. However, Arkansas law does not support the establishment of a boundary by acquiescence along an invisible line between two large land forms, such as levees, that are not truly capable of being used as accurate markers of a boundary.

In their reply brief, the Campbells respond that "here we do not have an invisible line, indeed we have first a fence erected . . and thereafter, a painted line" along the trees. However, the Campbells are not asserting that the fence line is the boundary line, as it lies west of Murphy Road, and the trees are east of Murphy road. Further, though there are two markers here, the concrete marker and the iron pin, it is arguable whether painted trees in a wooded area in between those points constitute a "visible marker" because they only comprise a portion of the asserted boundary line. Pictures of the area, entered into evidence, only show a road in the woods. They provide no "visible evidence" that would constitute a boundary that begins on one side of the road, crosses it, and then goes through the woods. As the chancellor noted, "[i]t is just as plausible on viewing the property when the trees were first painted that the adjoining owners intended the road to be the line. It is even more likely that the fence was intended to be the line." Moreover, it is undisputed that the Campbells did not occupy their respective premises up to the painted trees so as to imply the existence of an agreement about the location of the boundary line.

The Campbells state that, though the Dumases make much of the fact that they did not conduct any acts of ownership other than with respect to the fence line, there is no proof of any acts on the part of Dumas to establish ownership west of Murphy Road. This argument is misguided, inasmuch as Dumas is not asserting a boundary line by acquiescence, the Campbells are. Hence,it was their burden to establish a boundary line by acquiescence. The Campbells provided no evidence to establish any such tacit acceptance of a boundary east of the fence, which Campbell said his father built to keep in livestock. Though several witnesses testified that they believed the painted trees formed the boundary of the Campbell/Dumas property, Campbell acknowledged that he had never cut trees east the fence line, though he had harvested timber on his land, and no member of his family had ever crossed Murphy Road to utilize the land. He also acknowledged that he was not aware of any agreement between any member of his family and the prior owners of the Dumas property as to where the boundary line was located, and he was not aware that the trees were painted until Michael Nolan, a forester, painted them in 1985. Based on the foregoing evidence, we cannot say the chancellor's ruling that the Campbells did not establish a boundary line by acquiescence is clearly against the preponderance of the evidence.

Next, we address the Rays' and Murphys' argument that the chancellor erred in finding that the Dumas survey was correct. They argue that Dumas's survey was biased in his own favor and used incorrect markers. All three surveyors testified, and the major difference between the Dumas and Paulus survey on the land at issue was that Paulus used a big gum tree in the wooded area to help justify and apportion the corner but did not use government corners in making his apportionment, while Dumas found and tied to an axle that he said lined up with fences in the area. Though each party disputes the location of the appropriate marker and argues about the proper steps to be used when a double set of corners is found, DeFrance testified that Dumas used the more acceptable methods of surveying. This court is faced with an issue similar to the one presented in Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999), where we affirmed the chancellor's denial of a boundary by ··²SearchTerm²····²SearchTerm²··acquiescence because the chancellor's determination "essentially came down to a question of credibility and comparison of surveys." Considering the deference we giveto the chancellor, ··²SDU_6²····²SDU_6²··who is in a superior position to determine the credibility of witnesses and the weight to be accorded to their testimony, Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999), we cannot say that the chancellor erred in finding that the Dumas survey more accurately defined the boundary lines between the parties.

Affirmed.

Robbins and Baker, JJ., agree.