Joseph H. Riddle, Sr., Julia A. Riddle, and Beth A. Riddle v. Conrad F. Kaelin, Ava Paulette Kaelin, Cecil B. Knight and Robbie Mae Knight

ca03-167

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOSEPH H. RIDDLE, SR., JULIA A. RIDDLE and BETH A. RIDDLE

APPELLANTS

v.

CONRAD F. KAELIN, AVA PAULETTE KAELIN, CECIL B. KNIGHT and ROBBIE MAE KNIGHT

APPELLEES

CA03-167

SEPTEMBER 3, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[DR2001-720]

HONORABLE HARRY ALBERS FOLTZ, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

This case involves a boundary-line dispute between appellants, Joseph Riddle, Sr., Julia Riddle, and Beth Riddle, ("Riddles"), and appellees, Conrad Kaelin and Ava Paulette Kaelin ("Kaelins") and Cecil Knight and Robbie Mae Knight ("Knights"). The Riddles appeal from a Sebastian County Circuit Court order (1) quieting title in the appellees, finding that the fencing established a boundary by acquiescence, and (2) awarding damages to the Kaelins in the amount of $2,198.50 for the Riddles' removal of certain shrubbery along the disputed line. The Riddles have four arguments on appeal. First, they argue that the circuit court's order and judgment of October 15, 2002, and its findings of fact and conclusions of law of November 25, 2002, dismissing the Riddles' petition for quiet title and granting the Kaelins' counter-petition to quiet title are clearly erroneous and are unsupported by sufficient evidence. Second, the Riddles argue that the circuit court erred in permitting the Knights to intervene in the action. Third, the Riddles argue that the circuit court's order and judgment of October 15, 2002, and its findings of fact and conclusions of law of November 25, 2002, granting the Knights' quiet title and affirmative relief are clearly erroneous and are unsupported by sufficient evidence. Fourth, the Riddles argue that the circuit court erred in denying the Riddles' post-trial motions to amend its findings and for a new trial. We affirm on all points.

The Riddles, the Kaelins, and the Knights are adjacent landowners and neighbors. There is fencing between the Riddles and the Kaelins and between the Riddles and the Knights that has been in place for fifty years. In 1996, when the Riddles purchased the property, they had the property surveyed. The survey concluded that the Riddles' east property line was approximately ten feet past the existing fence line onto the Kaelins' property. Based on the outcome of the survey, the Riddles filed a complaint for quiet title on June 18, 2001. On July 3, 2001, the Kaelins filed an answer and counterclaim seeking to quiet title in them to the subject land. The Kaelins later filed a counter-petition to quiet title on April 18, 2002. On April 23, 2002, the Riddles filed an answer to the counter petition. Both parties asserted ownership of a strip of land approximately ten feet wide, which runs along their boundary line. The Riddles alleged that they own the disputed land by virtue of the legal description in their deed. The Kaelins alleged that they own the land because there is an "extra ten feet" of land within the section where the property is situated and because an existing fence is the actual common boundary line by acquiescence.

On May 30, 2002, the Knights sought to intervene and quiet title to the property located adjacent to the Riddles' property to the north.1 The Knights also requested a temporary restraining order to prevent the Riddles from further damaging their property after the Riddles tore down an old fence and began constructing a new fence on what the Knights felt like was their property. A letter from the trial judge stated that the judge did not feel that a restraining order was necessary as he would order the removal of the fence the Riddles were constructing if the fence was indeed placed on the Knights' property. The letter also stated that he assumed that there would be no objection to the intervention but that he would wait ten days to allow for an objection. No objection was filed by the Riddles, and no order was entered.

On July 9, 2002, a hearing was held. At the hearing, the Knights' involvement was discussed between counsel and the trial court. Mr. Knight sat at counsel table with the Kaelins' attorney, while all other non-party witnesses were excluded from the courtroom, and testified as a witness. At this point, there was no objection by the Riddles as to the Knights' involvement at the hearing.

Ms. Kaelin testified at the hearing that she and Dr. Kaelin owned the property adjacent to the Riddles. Between the Kaelins' and the Riddles' property, there was a line of hedges running along a fence, which had been there since the Kaelins purchased the property approximately nineteen years ago. The Kaelins have maintained the hedge on their side of the fence line during the past nineteen years. In 1998, having only met the Riddles on one prior occasion during a casual encounter at a home improvement store, Ms. Kaelin discovered the Riddles engaged in cutting down the hedge, which included some trees, on the Kaelins' side of the fence. Approximately fifty percent of the hedge was cut at that time. In 2000, the Riddles cut the remaining hedge along the fence line. Ms. Kaelin described the Riddles' actions as "butchering everything on our fence line, taking everything out again." "They weren't maintaining anything. They were hacking." Joe Riddle testified at trial that his survey showed the old fence line between his property and the Kaelins' to belong to the Riddles. He stated that he considered the fence line to be on his property from the date he purchased it. He asserts that the Kaelins never maintained the fence line during the time he lived there and that based on the overgrowth it had not been maintained for some time. Mr. Riddle also testified that his survey showed that the wood-rail fence between his property and the Knights' was located on the Riddles' property. Mr. Riddle considered the hedge along the wood-rail fence to be on his property as well. As a result, he stated that he maintained the hedge on both sides of the fence. Mr. Riddle also testified that there was an outbuilding on his property that was placed there by Mr. Udouj, the previous owner. If the fence line were considered the property line, then the distance between the roof overhang and the fence would not have met zoning set-back requirements.

Mr. Knight testified that he had lived on the property since 1953 and that the previous owner of the Riddles' property built a wood-rail fence between the two in 1955. It was and had always been Mr. Knight's understanding that this fence served as the property line, and Mr. Knight maintained the shrubbery on his side of the wood-rail fence. Mr. Knight also testified that the metal fence between the Knights' property and the Kaelins' property had been there since 1953. This metal fence was also considered to be the property line between his property and the Kaelins'.

At the conclusion of the hearing, and after viewing the property, the trial judge found that the fences established, by acquiescence, the respective boundary lines between the Riddles' property and the Kaelins' property and between the Riddles' property and the Knights' property. The trial judge also awarded damages in the amount of $2,198.50 in favor of the Kaelins for the Riddles' removal of certain shrubbery along the disputed property line. The Riddles then made an objection concerning the Knights' intervention. The trial judge's order and judgment quieting title in favor of the Kaelins and the Knights was entered on October 15, 2002. On October 25, 2002, the Riddles filed a motion to amend findings of fact, requested specific findings of fact and conclusions of law, and a motion for a new trial. However, on November 25, 2002, the trial judge entered its findings of fact and conclusions of law denying the Riddles' post-trial motion and confirming its previous order and judgment. This appeal followed.

The Riddles' first argument on appeal is that the circuit court's order and judgment of October 15, 2002, and its findings of fact and conclusions of law of November 25, 2002, dismissing the Riddles' petition for quiet title and granting the Kaelins' counter-petition to quiet title are clearly erroneous and are unsupported by sufficient evidence. The Riddles argue that the principle of senior rights is applicable to this case citing Collins v. Heitman, 225 Ark 666, 284 S.W.2d 628 (1955); however, the Judge did not rule on that issue. Rather, the Judge found that the evidence supported an alternative theory of acquiescence. The order appealed from is based upon the theory of acquiescence, and therefore, this opinion need not address that portion of the Riddles' argument. See Murphy v. City of West Memphis, ___ Ark. ___, 101 S.W.3d 221 (2003); Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). It is well established that the location of a boundary line is a question of fact. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). Although equity cases are reviewed de novo on the record, the appellate court does not reverse unless it determines that the chancery court's findings of fact were clearly erroneous. Schrader v. Schrader, ___ Ark. App. ___, ____ S.W.3d ___ (April 2, 2003.)(citing Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (2002)). 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 conviction that a mistake was committed. Id. (citing Hedger Bros. Cement & Material v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000)). In reviewing a trial court's findings of fact, the appellate court gives due deference to the court's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. (citing Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997)).

In McWilliams v. Schmidt, 76 Ark. App. 173, 181, 61 S.W.3d 898, 905 (2001), this court stated that:

As we stated in Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993), boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question and may be affected by the concepts of acquiescence and adverse possession. A fence, by acquiescence, may become the accepted boundary even though it is contrary to the surveyed line. Id. When adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Id. It is not required that there be an express agreement to treat a fence as a dividing line; such an agreement may be inferred by the actions of the parties. Id. Acquiescence need not occur over a specific length of time, although it must be for a long period of time. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). A boundary line may be established by acquiescence whether or not it has been preceded by a dispute or uncertainty as to the boundary line. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). When a boundary line by acquiescence 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. Id. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros. Cement and Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).

At trial, Ms. Kaelin testified that she and Dr. Kaelin had owned the property adjacent to the Riddles for approximately nineteen years. She testified that they have maintained the hedge on their side of the fence line all those years. In 1998, she discovered the Riddles destroying the hedge, which included some trees, on the Kaelins' side of the fence. Later, the Riddles removed the remaining hedge along the fence line. Mr. Knight testified that he had lived on the property since 1953 and that he had maintained the shrubbery on his side of the wood-rail fence since that time. It was and had always been Mr. Knight's understanding that this fence served as the property line. Mr. Knight also testified that the metal fence between the Knights' property and the Kaelins' property had been there since 1953 and was considered to be the property line between his property and the Kaelins'.

Here, testimony showed that the Kaelins' had maintained the fence and hedge between their property and the Riddles' for nineteen years. Further, Mr. Knight testified that he had maintained the shrubbery on his side of the fence since 1953. Both the Kaelins and the Knights, as well as the previous owners of the Riddles' property, considered the fences to be the property lines. Based on this testimony, we cannot find that the trial judge clearly erred in finding that between the Riddles and the Kaelins, and the Riddles and the Knights, that the fence lines had been established as the boundaries by acquiescence.

Second, the Riddles argue that the circuit court erred in permitting the Knights to intervene in the action. The Riddles assert that the Knights intervention was permissive and that it failed to meet the requirements of Arkansas Rules of Civil Procedure 24. The Riddles support this argument with the fact that there was no complaint filed, no answer in response, no discovery in the issues raised by the Knights, and no order permitting the Knights' intervention. The Knights assert that the intervention was as a matter of right and not permissive. Arkansas Rule of Civil Procedure 24(a) states that:

Upon timely application anyone shall be permitted to intervene in an action. . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Our supreme court has recognized the three following requirements for intervention as a matter of right: (1) a recognized interest in the subject matter of the primary litigation; (2) an interest that might be impaired by the disposition of the suit; and (3) an interest not adequately represented by existing parties. See Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997).

Here, the Riddles were tearing down the fence that divided their property from the Knights' property. Moreover, a change in the boundary of the Riddles' property would result in a change in the boundary of the Knights' property. The boundary line between the Riddles and the Kaelins extends north to the eastern boundary of the Knights' property and a change in the Riddle/Kaelin boundary would necessitate a change in the Kaelin/Knight boundary. Thus, the Knights had a recognized interest in the subject matter of the primary litigation, and their interest might be impaired by the disposition of the suit. The Knights do not specifically address whether their interest was adequately represented by the existing parties; but, they do assert that, depending on the trial court's decision, the issue regarding their southern property line adjoining the Riddles might not have been resolved. Although an order allowing intervention by the Knights was never filed, the Knights were clearly a continual part of the lawsuit. The acceptance of the Knights' status as intervenors was established by the facts, in that (1) Mr. Knight sat at counsel table during the hearing and was not excluded as a witness; (2) the issue of the Knights' intervention was discussed between counsel and the court at the hearing; and (3) in a letter dated May 30, 2002, the trial judge informed the Riddles of their need to advise the court if they objected to the Knights' intervention. The Riddles made no objection to the Knights' participation either prior to or during trial. Although the proper procedure was not followed, given the Riddles failure to object to the Knights' intervention and participation in the suit, we find that the trial judge did not err by allowing the Knights' to intervene.

Third, the Riddles argue that the circuit court's order and judgment of October 15, 2002, and its findings of fact and conclusions of law of November 25, 2002, granting the Knights' quiet title and affirmative relief are clearly erroneous and are unsupported by sufficient evidence. The same analysis from the Riddles' first point on appeal applies here as well.

At trial, Mr. Knight testified that he had lived on the property since 1953. He stated that the previous owner of the Riddles' property erected the fence between the Riddles and the Knights prior to Mr Knight's purchase of the property. He also testified that the previous owner, Mr. Udouj, built a wood-rail fence in 1955. It was and had always been Mr. Knight's understanding that this fence served as the property line. All those years, Mr. Knight maintained the shrubbery on his side of the wood-rail fence, and likewise, Mr. Udouj maintained up to the other side of the fence. Mr. Knight also testified regarding the metal fence between the Knights' property and the Kaelins' property. The fence had been there since Mr. Knight moved there in 1953. He considered the metal fence to be the property line between his property and the Kaelins'. Mr. Knight commented that he maintained the property on the Knights' side of the fence, "[A]nd Mr. Udouj maintained on [the other] side of the fence, that's right. Well, there wasn't much for Mr. Udouj to take care of over there-rear vacant lot."2 According to Mr. Knight, there had never been any disputes over the property lines until the Riddles filed their complaint. As a result, we hold that the trial judge's finding regarding the boundary line by acquiescence between the Riddles' and the Knights' property was not clearly erroneous.

Fourth, the Riddles argue that the circuit court erred in denying the Riddles' post-trial motions to amend its findings and for a new trial pursuant to Ark. R. Civ. P. 52 and 59(a)(1) and 59(a)(6). Rule 52 states in pertinent part that:

(a) If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . . Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses.

(b) Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly.

Rule 52(b) clearly does not mandate that the trial court take action even when a timely motion or request is made. Apollo Coating Inc. v. Brookridge Funding, ___ Ark. App. ___, 103 S.W.3d 682 (2003). Furthermore, our case law is well-settled that a motion for new trial is addressed to the sound discretion of the trial court, and the trial court's refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Jones v. Double "D" Properties, Inc., ___ Ark___, 98 S.W.3d 405 (2003) (citing Sharp Co. v. Northeast Ark. Planning & Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980)). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id. (citing Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993)).

Here, the Riddles' motion followed the trial court's order and judgment entered on October 15, 2002. On November 25, 2002, the trial judge entered its findings of fact and conclusions of law denying the Riddles' motion to amend its findings and for a new trial. There is no evidence that the trial judge's findings and conclusions of law are clearly erroneous. Likewise, there is no evidence that the trial judge abused his discretion in denying the Riddles' motion for a new trial.

Based on the foregoing, we affirm on all points.

Vaught and Roaf, JJ., agree.

1 Although a motion to intervene with an attached complaint was filed, the complaint itself was not filed separately.

2 The Riddles contend that this statement by Mr. Knight demonstrated that there was no evidence of acquiescence to establish the fence as the boundary line. We disagree.