James Hemund and Mary Hemund v. Roy C. Tigue and Laquita Tigue

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

JAMES HEMUND

and MARY HEMUND

APPELLANTS

V.

ROY C. TIGUE and

LAQUITA TIGUE

APPELLEES

CA 02-980

June 11, 2003

APPEAL FROM THE

MONTGOMERY COUNTY

CIRCUIT COURT [2001-30]

HONORABLE GAYLE K. FORD,

CIRCUIT JUDGE

AFFIRMED IN PART; REMANDED IN PART

This is a property case in which appellants, James and Mary Hemund, filed a quiet-title action against adjoining landowner appellees, Roy and Laquita Tigue. The trial court found in favor of appellees, and we agree.

Appellants own real property located in Montgomery County, Arkansas. They acquired their title to the property by warranty deed from Ralph and Alice Hemund in 1998. Appellees own property that is located north of the property owned by appellants. A fence runs between a portion of the two pieces of property, and according to the testimony has been in existence since 1954. The trial court determined that, with respect to this portion

of the properties, this fence marks the boundary line by acquiescence between the parties. There appears to be no dispute on appeal with this portion of the trial court's decision.

With respect to the portions of the properties that are located west of an existing railroad track, however, there is no fence. The trial court concluded that the boundary by acquiescence in this area is the old road that has been used by both parties as visible evidence of their dividing line. It is this portion of the trial court's decision that appellants challenge on appeal.

For their first point of appeal, appellants contend that the trial court's finding that a boundary by acquiescence exists is not supported by the evidence. We disagree.

Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). When the adjoining owners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Id. 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. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). The period of acquiescence need not last for a specific length of 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. Id. 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. Id. A boundary line by acquiescence may well existwithout the necessity of a prior dispute. Walker, supra. Neither is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Walker, supra.

The location of a boundary line is a question of fact, and we must affirm a trial court's location of a boundary line unless its finding is clearly against a preponderance of the evidence. Jennings, supra. As a preponderance turns heavily on credibility, we defer to the superior position of the circuit judge in this respect. Walker, supra.

Here, Philip Sloan, a registered land surveyor, testified that he performed a survey in 1982 and another survey in 2000. He said that when he performed the 2000 survey, he had more advanced technology that allowed him to tie in two established corners that were a mile and a half apart and to determine the location of the west end of the line. During the 2000 survey, he was able to locate an old road that the parties had been using. He said that the road leading west from the railroad crossing to the Caddo River was approximately seventy-one feet south of where his surveyed line turned out to be at the railroad crossing and approximately 100 feet south of the surveyed line on the river side. He said that there were no stakes, fences, or lead pipes located there; that the only thing he found west of the railroad tracks was a tree out in the middle of the field; that it was an extremely old oak tree; and that it happened to fall on that line.1

Ralph Hemund, James Hemund's father, testified that he purchased the property on the south side of the area in dispute from Jeff Hemund, appellant's brother, in 1996; and that he then sold it to appellants. He said that he has been familiar with the property in dispute since 1954; that he lived there from 1954 until 1963 and again from 1986 to the present; and that he was still around the property in the intervening years. He explained that the property was used in the 1980s and the 1990s as a hay meadow; that he and his sons used the hay meadow up to approximately where it crosses the railroad track; and that "the Tigues and us" occasionally overlapped on each other's use. He said that there was "no distinct boundary down through there, no fence or anything"; that "we just go in and cut and they'd come in and cut." He said that "it is a low, wet spot in there"; that water stands there a "good bit of the time"; and that "we would usually stay on the bottom side of it and they would stay on the top side of it." He said that when the Tigues used the road west of the railroad line through the meadow, that they would come up from the river straight across to the railroad. He said that when the spot was too wet, they would go to the north of the wet spot.

Ralph Hemund also testified that the property was never fenced west of the railroad track. He said that when he cut hay beginning in 1986, he would cut up to the road in question; that since 1986, Roy or Freddy Tigue would cut down to their side of the road; that they never had a written agreement about the road; that the division was basically the old road; and that he has occasionally cut the whole field. He said that he had planted cropsnorth of the road going straight from the railroad tracks to the river; that "we knew the property line was north of the . . . road, but we never knew exactly where it was, never had it surveyed"; that he would always cut along the old road; that the old road was the area both parties considered to be the area between the two properties; that "we didn't want to get over on the Tigues property and so he stayed north of the road and I stayed south." He said that Mr. Tigue or his mowers or workers did come south of the road sometimes during the last few years; that "if it was dry enough, we cut hay north of the road, not a great distance." He said that he did not know during this period where the boundary line was; that he could only say that "Freddy Tigue's dad told us that the line was north of the road, but we didn't know exactly where, so we just assumed it was somewhere in that area." He said that there was no way for him to know where the line was.

Ralph Hemund further testified that the property has been a hayfield since the 1980s; that when the Tigues used the old road to haul gravel from the river, they could drive on the road from the river straight across the fields to the railroad tracks; that the old road goes straight from the railroad tracks to the river; that they both had hayfields and had to establish a line they could cut to; and that they used the old road that ran straight from the railroad tracks to the river as the division between the two properties.

Appellant, James Hemund, testified that he has been around the property at issue on and off since 1954; that his family acquired an interest in it about 1987 when his brother Jeff bought it; that he had a conversation with Freddie Tigue in 1998; that they talked about how Tigue was clearing part of the property out; that Tigue wanted to know if it bothered James; that he responded, "no, as long as we understand that the road and this lower fence is on ourproperty and the line is somewhere north." Hemund testified, "We was both comfortable with that; neither of us knew how far north of the road that the property line actually was."

Hemund stated that he had another discussion with Freddie Tigue in 1999, and that it was basically the same discussion as in 1998. He stated that he told Tigue that he didn't have any objection to him putting up a gate as long as "we both understood that the road and the fence was on our property. He could use it, but we had to understand that the real property line was somewhere north of the road."

Hemund stated that he cut hay to the road in question because "I understood the road was on our property and I did not know how far past the road the line was. I didn't want to be on the Tigues' property, so I stopped at the road because I knew I was on my property not on his." He stated that he has cut hay north of the road after the 2000 survey; and that Tigue said it was okay to go up to the survey line, "and I did so."

Hemund stated that "we could not agree that I would cut hay up to the road and Freddie would cut hay north of the road prior to the commencement of this litigation; and that his father (Ralph) told him that the understanding was that the fence line was somewhere north of the road; that "was the understanding they had with the Tigues." He said that he was aware that the Tigues have cut hay south of the road; that "we may unintentionally have gone over the road to the north"; and that "I always set down the mower blade right on the road."

Hemund further testified that the property papers show that the old road has always been there; that from 1996, he has cut hay up to the old road; that he did not go across the road; and that he stopped at the old road because he knew he was on his property. He saidthat he did not know where the line was, but that he knew it was in there somewhere, and in order to ensure that he was on his property, he treated the road as the area where he would stop. He stated that he understood that the line he was cutting was not the actual line; that he had heard his dad say that he was cutting up to this line, and treated it as the line. He said that it was his understanding that between 1986 and 1998, everybody cut to the road.

He stated that he called Tigue's hands for two years to tell them to get over on their side of the road; that when they did not comply, he called Freddie Tigue and told him that his boys were over the road that runs straight from the railroad tracks to the river; that Tigue said he would take care of it; and that Tigue told him he would tell his boys to get back over on the north side of the road.

Jeffrey Hemund testified that he acquired the land in 1986, conveyed it to his father, and his father conveyed it to James; that after he acquired the property in 1986, Roy Tigue and he agreed that Jeffrey would cut hay on the south side of the old road and Tigue would cut hay on the north side of the old road.

Freddie Tigue, appellee's brother, testified that at one time he owned the property that the Hemunds now own; that he lost it in 1986; that his brother Roy (appellee) owned the north part, which Freddie has now bought; that there is no fence from the railroad track down to the river; that he told his people to use the road as the line when they went down there to cut; that he owned the south part and his brother Roy owned the north part; and that he and Roy began using the road as the line sometime between 1978 and 1980. He said that he did not know where the boundary line was, and that when he owned the property with his brother until 1986, Roy sometimes cut hay on the whole hay meadow. Freddie Tigue furthertestified that the road is the line that has been used by all the parties as the boundary; and that there has never been any dispute about the road marking the boundary line until James Hemund filed this lawsuit a year and a half ago.

Based on the above testimony, we hold that the trial court's finding that a boundary by acquiescence was established is not clearly erroneous.

For their second point of appeal, appellants contend that the new boundary ordered by the court is not sufficiently definite under Arkansas law, requiring reversal of the trial court's order and quieting title in appellants. The trial court's order provides in pertinent part:

VI.

The Court orders that a fence shall be constructed in the middle of the road beginning 30 feet West of the railroad track and running straight to the Caddo River in accordance with the testimony of Ralph Hemund as set forth in Exhibit 3 as the Green Road and as further set forth in the video played for the Court by Freddie Tigue showing the line the Plaintiff cut hay up to.

VII.

The Plaintiff should be responsible for retaining the surveyor to place an initial survey stake 30 feet West of the railroad track in middle of the road used by the parties to cut hay and placing a survey stake on the East bank of the Caddo River in a direct line along the road used by the parties to cut hay to.

In Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991), our supreme court explained that where boundary lines are involved, the decree, which is the permanent record, should describe the line with sufficient specificity that it may be identified solely by reference to the order and without reference to a plat, which may not be in existence in a few years. Similarly, in Jennings v. Burford, 60 Ark. App. 27, 35, 958 S.W.2d 12, 16 (1997),we determined that the trial court's description of a boundary line "as the meandering fence `reflected by the Askew survey,'" was not sufficiently specific.

Here, as in Jennings, supra, the boundary-line description cannot be identified solely by reference to the order because the order itself references testimony and a video tape. We, therefore, remand to the trial court to promptly enter an amended order that more specifically describes the boundary line by acquiescence between the parties' land, following the survey of the line that the trial court's June 3, 2002 order directed appellants to obtain.

For the reasons set forth above, we affirm in part and remand in part.

Affirmed in part; remanded in part.

Pittman and Baker, JJ., agree.

1 We recognize that readers of this opinion, other than the parties to this litigation, have not had the opportunity to view the several maps introduced in evidence. In an effort to clarify, we point out that the disputed line lies between a railroad crossing and the Caddo River, which is situated to the west thereof. The trial court found that the boundary by acquiescence is a road that runs from the railroad crossing westerly to the Caddo River. Philip Sloan, the surveyor, said that the road was seventy-one feet south of the true surveyedboundary line at the railroad crossing and 100 feet south at the Caddo River.