Columbus Robinson and Ossie Robinson v. Lillie Simpson and Homer Simpson, Jr.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

COLUMBUS ROBINSON and

OSSIE ROBINSON

APPELLANTS

V.

LILLIE SIMPSON and

HOMER SIMPSON, JR.

APPELLEES

CA 01-231

DECEMBER 19, 2001

APPEAL FROM THE JACKSON COUNTY CHANCERY COURT

[NO. E-2000-138]

HONORABLE THOMAS L. HILBURN, CHANCERY JUDGE

AFFIRMED

This is an appeal from an order of the Jackson County Chancery Court in which the court found that a fence between the property of the appellants, Columbus and Ossie Robinson, and the appellees, Lillie Simpson and Homer Simpson, Jr., was the property line by acquiescence. Appellants bring this appeal, arguing that the court erred in finding that the fence line is the boundary by acquiescence. We find no error and affirm.

In November 1998, appellants purchased Lot 2 of the Louis Robinson Addition to Newport, Arkansas, from Matt Wright, Jr., and Vivian Howard, who inherited the property from their parents, Matt Wright, Sr., and Dovie Wright. Appellee Lillie Simpson, and her deceased husband, Homer Simpson, Sr., purchased their lot in 1965. At that time Matt Wright, Sr., and his wife already owned the adjacent lot. Appellants' lot is adjacent to appellees' lot. The trial court found that when the Louis Robinson Addition was laid out

in1964, the civil engineer erred, creating a shortage in his described western boundary in Lot 2 and Lot 3. Appellants filed an action to quiet title to the land that they claim is theirs according to the plat. Appellees argued that a fence was erected around 1970 by Matt Wright, Sr., to establish the boundary line between the properties. Appellants argued that there was never an agreement as to the division line. By order filed November 7, 2000, the court found that the fence erected around 1970, by Matt Wright, Sr., was the boundary line by acquiescence.

We review chancery cases de novo on appeal. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). We will not reverse a chancellor's findings of fact in a boundary line dispute case 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, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).

The location of a boundary line is a question of fact. Ward, supra. 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. Ward, supra. The mere existence of a fence between adjoining landowners is not itself sufficient to establish a boundary by acquiescence, there must be a mutual recognition of the fence as the dividing line. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978). A boundary by acquiescence has usually been inferred from the landowner's conduct over somany years as to imply the existence of an agreement about the line. See id. Whenever adjoining landowners tacitly accept a fence line and thus apparently consent to that as their property line, it becomes the boundary by acquiescence. Ward, supra. A boundary line by acquiescence is inferred from the landowner's conduct over many years so as to imply the existence of 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 all circumstantial evidence does, unlike the seven years required to take land by adverse possession, which is a statute of limitations for commencement of an action to recover land adversely possessed. Ward, supra.

In this case, appellee, Lillie Simpson testified that in 1971, Matt Wright, Sr., built a fence between the two lots to mark the boundary line between the properties. Ms. Simpson testified that the fence was built because her husband and Mr. Wright, Sr., had a dispute over the boundary line, and that Mr. Wright, Sr., told her husband that "the fence would solve everything." Ms. Simpson stated that one can still see remnants of the fence that Mr. Wright, Sr., built as well as old fence posts.

Appellee Homer Simpson, Jr., testified that there had been a fence between the properties since he was twelve years old. He states that there used to be a wire fence all the way up to the road. He testified that he mows up to where the fence used to be. Mr. Simpson, Jr., further testified that their septic tank runs to the fence line, and that moving the fence would encroach on the portion of their property which holds a satellite dish, fruit trees, and his garden.

Rufus Anders, who has lived across the street from the two properties since 1969, testified that there was a fence between the two properties for as long as he had lived there. He testified that Mr. Wright, Sr., put up the fence, and that Mr. Wright, Sr., told him that he was putting the fence up so he would know where his line was. Mr. Anders testified that the fence served as the dividing point ever since it was put up. He testified that appellees mow all the way up to the fence. He said he never saw Matt Wright, Sr., or Jr., come across the fence line.

Based on this evidence we hold that the trial court did not err in finding that the old fence was the boundary line by acquiescence. There was sufficient evidence to show that the fence has been used for several years as the boundary line between the properties. The parties' conduct was sufficient for the trial court to imply the existence of an agreement that the fence was the boundary line. Appellants argue that three surveys would not have been conducted if the Wrights and Simpsons had agreed on the boundary line. We will not speculate as to why the surveys were done. The evidence is sufficient to find that the fence is the boundary line by acquiescence.

Affirmed.

Bird and Baker, JJ., agree.