Steve Koscenski and Carole Koscenski v. Bob Harrison and June Harrison

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

STEELE HAYS, Special Judge

DIVISION II

STEVE KOSCENSKI and CAROLE KOSCENSKI

APPELLANTS

V.

BOB HARRISON and JUNE HARRISON

APPELLEES

CA 01-282

NOVEMBER 14, 2001

APPEAL FROM THE CONWAY COUNTY CHANCERY COURT

[NO. E 98-306]

HONORABLE VAN TAYLOR,

CHANCERY JUDGE

AFFIRMED; SUBSTITUTED OPINION ON DENIAL OF REHEARING

STEELE HAYS, Special Judge

This is a boundary line dispute that began when the appellants, Steve and Carole Koscenski, removed a fence between their property and the property of appellees, Bob and June Harrison. The Harrisons filed suit to have the fenced replaced. The chancellor held the fence was the boundary line by acquiescence and ordered it restored. The Koscenskis have appealed. We affirm the chancellor.

Chancery appeals come to us for de novo review. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). At the same time, we recognize that the chancellor is better able to judge the demeanor of the witnesses and the nuances of the testimony. We do not reverse a chancellor's finding of fact in a boundary dispute unless such finding is clearly erroneous. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). A finding is clearlyerroneous

when, while there may be evidence to support it, the reviewing court, on the evidence as a whole, is left with the definite and firm conviction 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.

At issue here is the boundary between two residential properties. Lots 1 and 2 lie on the corner of Division and Center Streets in Morrilton, and belong to Steve and Carole Koscenski. Lot 3, lying immediately to the south of Lot 2, belongs to Bob and June Harrison. The Harrisons bought their property in 1971. The Koscenskis bought their property in 1997 from Steve's father, Frederick Koscenski, who had owned it since 1968. Prior to buying the property, the Koscenskis had rented it, beginning in 1989. After they became the owners, the Koscenskis ordered a survey that was completed in August 1998. The survey satisfied them that a fence separating Lots 2 and 3 was actually on their property. They removed the fence and this litigation followed.

The proof being rather fact intensive, we recount the testimony in some detail. At trial Bob Harrison testified that when he and his wife moved onto their property in 1971, there was a web-wire fence covered with vines and honeysuckle that they understood as the dividing line between their property and the adjoining property on the north. Bob Harrison described the line as a "kind of division fence," which had been there "since the beginning of time."

During the 1980s, Mary Foster, Steve Koscenski's sister, rented the property from their father and operated a day care facility for children. She was required to enclose a partof the yard for the protection of the children. According to the Harrisons, Foster discussed the construction of a fence with them. Bob Harrison agreed to pay for the fencing material to replace the old fence if Foster would have it put up. Mary Foster called around for price comparisons and found the best price at a supplier in Jacksonville. Bob's nephew drove him to get the materials and Mary Foster erected the new fence with the help of friends from her church. She reimbursed Bob Harrison in the amount of $300 for the cost of extending the fence around the west and north boundaries to form an enclosure.

June Harrison testified that when they moved in, the old wire fence was "badly overgrown." As far as they knew, the fence was considered the property line. She and Bob took care of the yard on their side of the fence, and the people on the other side did the same. She testified that no one ever came over on their side until Carole Koscenski began mowing south of the fence "about a year ago." She said when they moved in, there was an old chicken coop at the back on their side of the fence "where people had raised chickens years ago." She and her husband later replaced the coop with a frame storage building that was in existence at the time of the survey. Mrs. Harrison described a garden plot on their side of the fence that was there when they moved in and that they had continued to garden all the years they have lived there.

Helen Rickman testified that she had rented the Koscenski property from the elder Mr. Koscenski from August 1973 until October 1982. She said during that time there was "an old fence, webbed wire, woven wire" that separated the two properties. At no time did anyone indicate to her there was any contest as to where the property line was. She said theHarrisons mowed on their side of the old fence, which did not come all the way to the street, there being a little open space at the front.

Diane Bennett testified her parents had built the house on the corner of Division and Center Streets, where she lived from the time she was in the first grade until she completed high school in 1970. She said she played there during all her growing up years and there was "always a fence there with honeysuckle in the summertime." The fence had been there as long as she could remember.

Ann Hodges testified she lived across the street from the Harrisons, that the fence between the Harrison and Koscenski properties was there when she moved in 1967. She said Bob Harrison always maintained the property up to the fence, as did the previous owner, Mr. Jamell. Ms. Hodges told the court she had never seen anyone from the other side of the fence come over and mow or do anything "until this happened."

Lois Cooksey, aged 67, testified that she knew the property and that the fence was there when she was a child. "The web wire fence was there all during my childhood." She remembered the smell of the honeysuckle.

Doris Pavatt testified that beginning in 1964 she lived on the other side of the street from the Harrison property, where her parents still lived. She said, "there has always been an old fence row there with honeysuckle vines."

Donna Hendricks, June Harrison's daughter, lived with the Harrisons for two years after they bought the house. She testified there was "always a fence north of the house." The Harrisons always took care of the yard and the garden south of the web wire fence. Atthat time Ms. Sally Rainey occupied the Koscenski property. She stated that Ms. Rainey took care of her side and the Harrisons took care of their side. She said no one at any time came over onto the Harrison property.

Terry Cleaver, professional land surveyor, testified for the Koscenskis. His survey of the Koscenski property, completed August 13, 1998, was introduced without objection. He established the property lines of lots 1 and 2 and testified that the fence, which was still there when he began the survey, was located on lot 2. He also noted the presence of a storage building on lot 2 and a garden on the south side of the fence.

Mary Foster testified she rented the Koscenski property from her father from 1981 or 82 to 1988. She said when she first moved in, the fence was not there, so she took care of all the yard. She mowed up 2 or 3 feet from the Harrison's house because she did not know where the property line was. She testified that there was no fence between her and the Harrisons. After she was told she had to put up a fence, she talked to Bob Harrison and he offered to get the fencing material. She said that she paid him $300 for all the fencing material. She said there was no agreement that he would pay for the fence between his line and hers, and she would pay for the rest. She put the fence where it was because there was a tree line there, and she did not want to fence in the whole yard. She denied placing the new fence where the old fence had been because "there was not a fence there."

Carole Koscenski testified she had been on the Koscenski property in 1982 when she and Bob were dating, but she did not recall seeing a fence between the Koscenski and Harrison properties. She said there were no discussions with the Harrisons about theproperty line but she saw June Harrison in her garden one day and went out to tell her she and Steve were planning on putting up a privacy fence, that the surveyor had told them the line was "about 20 feet or so beyond the old fence, the chain link fence." She said June's response was, "I didn't think it was that far." She testified that they had removed dead trees from the other side of the fence with no complaint from the Harrisons. They never talked to the Harrisons about taking down the chain link fence. Mrs. Koscenski estimated that less than half of the Harrisons' garden was on their property. She conceded that the Harrisons' shed was "on my property now," but she said it had been there only 4 or 5 years. She did not say anything to the Harrisons because she was not sure where the property line was. She said Mr. Koscenski told her the line was pretty close to the Harrisons' house.

Mr. Frederick Koscenski testified by deposition that he resided in Massachusetts and had never lived on the Morrilton property. When he purchased the property in 1968 there was no discussion as to where the property line was. He had a survey done but it was only of lot 1, where the house was located. He did not recall any fences between his property and the Harrisons. When Mary Foster needed to put up a fence there was no discussion as to where the property line was, nor any discussion as to where the fence would be, "she asked me for permission and I said, if you need it, go ahead." Mr. Koscenski said he believed the property line was by the apple tree in the far corner. "That's where I guessed it was. I didn't ask any questions. I just presumed it was there."

In rebuttal, June Harrison reaffirmed the presence of the garden when they moved in and that she had been using it "all these years." She said Mrs. Koscenski had not mowed ontheir side of the fence until recently. As for the old fence, she stated: "No sir, it is not correct that there was no fence there. There has been a fence there all these years."

There was, to be sure, a marked conflict in the testimony concerning the existence of the old fence. The Koscenskis said that there never was a web wire fence, but we must defer to the chancellor in matters of credibility and his findings foreclosed that contention. We are not persuaded he was mistaken. There was, in fact, an abundance of testimony that the old fence, covered with honeysuckle, had been there longer than anyone could remember. The chancellor's ruling that the fence was the boundary by acquiescence was not unsupported by the proof.

The mere existence of a fence between adjoining landowners does not establish per se 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 so many years as to imply the existence of an agreement about the line. See id. When adjourning land owners 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. Holtzendoff, 214 Ark. 644, 217 S.W.2d 836 (1949). The period of time varies from case to case. Ward, supra. The Koscenskis argue on appeal there was no evidence they ever agreed, tacitly or otherwise, that the fence was the property line. However, the sum and substanceof the proof, depending on which version one chooses to believe, established that the conduct of the respective owners of lots 2 and 3, at least as early as 1964, and continuing until the survey of August 13, 1998, was consistent with an understanding that the fence served as the boundary. We cannot say the chancellor's findings to that effect were deficient, and, accordingly, the order appealed from is affirmed.

Bird and Griffen, JJ., agree.