Maxine B. Hamilton et al. v. McCaughan Properties Limited Partnership

ca03-606

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA03-606

February 25, 2004

MAXINE B. HAMILTON, et al. AN APPEAL FROM WOODRUFF COUNTY

APPELLANTS CIRCUIT COURT

[NO. E-2001-150]

v.

HONORABLE BENTLEY STORY,

MCCAUGHAN PROPERTIES CIRCUIT JUDGE

LIMITED PARTNERSHIP

APPELLEE AFFIRMED

Terry Crabtree, Judge

This appeal arises from a boundary-line dispute between appellants and appellee as adjoining landowners. The trial court ruled that, over the years, the parties had acquiesced in a levee as their common boundary. We affirm.

The land in question is located in Sections 25 and 26, Township 6 North, Range 1 West in Woodruff County. Section 26 lies west of Section 25. The surveyed boundary shows that, for the most part, appellants own the southern half of Sections 25 and 26 and appellee owns the northern half. Appellants acquired their property from George Smith. Appellee acquired its property from Dr. Joe McCaughan, who acquired it from a man named Thompson. In the 1950s, appellants' predecessor Smith constructed a levee considerably south of the surveyed boundary line between the two properties. The levee runs in an east and west direction across all of Section 25 and most of Section 26 for approximately 1.5 miles. At various points, it is between forty and ninety-four feet south of the surveyed border line.

On November 13, 2001, appellee filed suit against appellants to establish the levee as the boundary line and to quiet title in itself to the seventeen acres lying between the levee and the survey line to the north. The complaint asserted the theories of boundary by agreement, boundary by acquiescence, and adverse possession. A trial was held on September 27, 2002, after which the trial court ruled against appellee on the boundary by agreement and adverse possession counts but ruled in favor of appellee on the boundary by acquiescence count. Appellants argue on appeal that the trial court erred in establishing the levee as the boundary by acquiescence.

Boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question based on the concept of acquiescence. See McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). A boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. Hedger Bros. Cement & Material v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). By acquiescence, fences and the like may become the accepted boundary even though contrary to the surveyed line. See McWilliams v. Schmidt, supra. A boundary by acquiescence is inferred from the landowners' conduct over many years so as to imply an agreement about the location of the boundary line. Hedger Bros., supra. 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). Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros., supra. The location of a boundary line is a question of fact. Id.

Boundary-by-acquiescence cases are reviewed de novo on appeal; however, we will not reverse the trial court's ruling unless its findings of fact are clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). In reviewing the trial court's findings, we give due deference to its superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.

The evidence at trial shows that, in the1950s, appellants' property was overseen by Robert "Tip" Nicholson and his father and that, sometime in the middle of that decade, Nicholson supervised the construction of a levee on the property. The primary purpose of the levee was to flood the land and kill timber so that the land could be farmed. A tree line remained along the north side of the levee and its bar ditch. Although Nicholson could not say why the workers cleared the land for the levee at that place or who told them to do so, he considered the levee as having been constructed on the border line. In fact, he said that he would not go onto the property on the north side of the levee because it was "another man's land." It was also his understanding that Smith "didn't have any woods," referring to the trees on the north side of the levee, and that appellee's predecessor, Thompson, owned the land north of the levee. Nicholson further testified that, when the levee broke at one point, workers used dirt from its north side to repair it and that he had "some concern" about digging on someone else's land. Nicholson said that he would not have permitted the workers to start the repairs until someone told him they had permission to use dirt from the north side of the levee.

Richard Powell, the son-in-law of appellee's predecessor Joe McCaughan, testified that he has been familiar with the land in question since 1985. According to him, appellee's property was wooded and used for duck hunting and other recreational purposes, while the property south of the levee was used for farming. At one point in the late 1980s or early 1990s, appellee's predecessor select-cut timber from the disputed area between the levee and the survey line to the north. Powell also testified that appellee had a road in the disputed area. He stated that either he or Barry Mauldin, appellee's caretaker, were regularly on the south end of the property, which is along the levee. Powell said that the levee or the tree line was recognized as the boundary line and that no one from appellants' side ever questioned the line until 1999. In fact, appellants "stayed on their side." According to him, Mauldin was instructed to police the land up to the ditch and levee. Powell further testified that there was an occasion when William Altman, who had farmed appellants' property since 1973, sought permission to hunt deer along the tree line, just north of the levee. Powell said that he allowed Altman to build a deer stand on the line but that he later had had problems with Altman coming onto the disputed area and even going beyond the disputed area without permission.

Barry Mauldin began working for Dr. McCaughan in 1965. He first became aware of the ditch and levee in the 1950s and considered the levee and tree line "our line." According to him, it was his duty to oversee the property all the way to the levee and he was on the property almost every day. He said that he often used a road that "zig zags" through the woods, in and out of the disputed area. Mauldin said that he had hunted squirrel, deer, racoon, and duck in the disputed area and had cut timber off it all the way to the ditch bank by the levee. According to him, someone driving on the levee could have seen the timber being cut. Mauldin said that, whenever appellants' tenants would cross onto the disputed tract, he would "run them off" and that he was never told by anyone that he had no right to tell them to leave. Generally, he said, appellants' caretaker Nicholson hunted south of the levee and never on appellee's property. Mauldin also posted the line along the levee at one time but had not done so in years. When appellants' tenant Altman was given permission to hunt on the tree line, he erected a deer stand "a half mile" north of the levee; Mauldin tore it down.

Mauldin's stepson, Charles Allen, has been familiar with the property since 1972. He has hunted, camped, cut timber, and evicted poachers from the disputed land, and has been on that property weekly for several years. He testified that he has always considered the tree line as the boundary and that he had cut timber from the disputed property. He confirmed Mauldin's story about tearing down Altman's deer stand that was "well over into the McCaughan woods." In fact, several years before the 2002 trial, he sent Altman a letter, telling him to stay off the land. He also confirmed that appellee's south line had been posted at one time and that the signs could be seen from the levee.

For the defense, William Altman testified that he hunted along the surveyed boundary line, as marked by certain bars and stakes. He also constructed catwalks and used poles to cross the ditch and go into the disputed area. He said the poles had been removed. Altman also stated that he had not seen anyone hunting in the disputed area. He was aware of the timber cutting that appellee's witnesses testified about, although he saw no evidence of cutting on the disputed tract. He acknowledged that he had received a letter from Charles Allen to stay off the land but said he had thrown it away.

Frank Ellis was a trust officer at DeWitt Bank and Trust and oversaw appellants' property after George Smith died in 1959. He said that he visits the land about thirty times per year. According to him, the survey line, not the levee, has always marked the boundary. He has never seen appellee's people on the disputed tract, although he did notice when they were cutting timber in the area. He did not think they were cutting on the disputed property, but he later saw some stumps there. He took no action to recover for the cut timber, nor did he lodge any protest because he said he was not sure who had cut the timber.

Following the trial, the circuit judge viewed the property and found numerous stumps in the disputed area that appeared to have been cut many years previously.

On February 7, 2003, the trial court entered a decree and set out nine specific bases for its ruling that the levee and ditch constituted a boundary by acquiescence. They are, as paraphrased below:

1. Appellants' predecessor Smith chose the location of the levee on his own land;

2. Smith constructed the levee for the purpose of flooding his land to kill the timber and allow cultivation and for the purpose of holding water for irrigation; it would make no sense to construct the levee in such a manner that seventeen acres would lie fallow;

3. After the levee was constructed, appellee's predecessor harvested select timber from the disputed area, cutting all the way to the ditch without complaint by appellants;

4. A road, used by appellee's employees for hunting purposes in the disputed area, is visible from the top of the levee;

5. Appellants' caretaker, Altman, was given permission by appellee's caretaker, Mauldin, to hunt deer along the tree line;

6. After the levee was constructed, everyone stayed on their respective sides of the levee except Altman; Mauldin continually made it known that he and his employers did not want anyone to cross the levee onto the disputed tract without their permission;

7. When the levee broke, appellants' caretaker, Nicholson, would not let the contractor remove dirt from the north side of the levee to repair it until he was assured he had the permission from appellee's predecessor;

8. Since the late 1950s, appellee and its predecessors and appellants and their predecessors have recognized the significance of the levee and the ditch; and

9. A former trustee of appellants' property, Mr. Ellis, made thirty trips a year to view the land and knew or should have known that appellee's predecessors were using the disputed area to the exclusion of all others.

After making these findings, the court established the boundary between the two properties along the ditch and levee and quieted title to the seventeen acres in appellee. Appellants argue on appeal that the trial court erred because: 1) the mere building of an improvement on one's own land does not deprive one of the land between the improvement and the true boundary; 2) the few acts of intermittent use of the disputed area by appellee were not sufficient to deprive appellants of the property; 3) there was no evidence that appellants recognized the levee as the boundary and thus no showing of a mutual acquiescence.

Regarding appellants' first argument, it is true that the mere existence of the levee on their land does not, in and of itself, establish the levee as a boundary. See Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962); Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981). However, the trial court did not rule that Smith's building the levee, standing alone, established the boundary by acquiescence. The court also considered the circumstances under which Smith constructed the levee and the fact that he built it a considerable distance from the surveyed boundary line. These are factors that our supreme court has considered in determining whether a man-made object constituted a boundary by acquiescence. In Williamson v. Rainwater, 236 Ark. 885, 370 S.W.2d 443 (1963), Rainwater claimed that a fence built by Mr. Williamson in 1946 was a boundary by acquiescence. In affirming the trial court's finding to that effect, the supreme court stated:

In the first place, Mr. Williamson built the fence. It is not likely that he would have left 50 feet of his land outside his fence. He may have built the fence a few feet from what he considered the section line in order to give him control of the fence, but surely he would not have intentionally left 50 feet of his land outside the fence. There does not appear to be any topographical reason for putting the fence at one place rather than the other.

Id. at 887, 370 S.W.2d at 444.

The court in the case at bar applied the same logic and considered the unlikelihood that a landowner would build a 1.5-mile levee for the purpose of clearing his land and yet leave 40 to 94 feet at every point, for a total of seventeen acres of land, on the other side of the levee. As Tip Nicholson testified, there was no reason why the levee would not be built on the boundary line "if they knew where the line was."

Appellants' second point is that appellee's use of the disputed tract was intermittent and therefore did not indicate anything other than a casual trespass. Appellants describe the intermittent acts as the cutting of timber and occasional duck hunting; the existence of a road that meanders back and forth across the true line; and Mauldin's "grumbling" over what he perceived as poaching by Altman.

We disagree with appellants' characterization of appellee's use of and dominion over the disputed area. Not only did appellee cut timber on the disputed property, but appellants' personnel noticed the cutting and later saw the stumps but did not object. Further, there was evidence of more than an occasional duck hunt in the area by appellee; both Mauldin and Allen testified about regularly hunting other game up to the ditch line. As for the road that meandered onto the disputed property, it could be seen from appellants' land but was never commented on or objected to by appellants. Additionally, Mauldin did more than "grumble" about Altman's poaching; he tore down Altman's deer stand and crossing poles and ordered Altman and others from the land. Further, Allen sent Altman a letter ordering him off the land. Yet, neither Mauldin nor Allen received any response from appellants indicating that they had no right to do this.

We also note that the cases cited by Smith on this point - Teer v. Plant, 238 Ark. 92, 378 S.W.2d 663 (1964); Sanderson v. Thomas, 192 Ark. 302, 90 S.W.2d 965 (1936); and Stokes v. State, 121 Ark. 95, 180 S.W. 492 (1915) - are adverse possession cases, holding that fitful, intermittent, or insignificant acts are not enough to oust a true owner from possession. However, adverse possession need not be shown to establish a boundary by acquiescence. Jennings v. Burford, supra. The relevant inquiry in a boundary by acquiescence case is whether the conduct of the owners evidences a tacit acceptance of the monument as a dividing line. See Lammey v. Eckel, supra.

Appellants' final point is that there is no evidence that they ever recognized the levee as the boundary line. We disagree. The evidence shows that the levee has been in existence in the same form for over forty years. The first time that appellants asserted a claim to land north of the levee was in 1999, after a survey was taken. When the levee was built, appellants' caretaker, Nicholson, considered it to be the boundary line and did not cross it. Further, when the levee was repaired, Nicholson felt he needed permission from the landowner to the north to use dirt from the levee's north side to make the repairs. Over the years, appellee engaged in various uses of the land up to the levee. Such uses could easily have been noticed by appellants but were not commented upon, and no objection was ever voiced. Mauldin granted permission to appellants' tenant to hunt along the tree line and at other times worked to keep appellants' tenants off the disputed area, all without objection. Powell testified that appellants stayed on the south side of the levee.

Such use is ample evidence that both parties acquiesced in the levee as the boundary line. There is no requirement that appellants overtly express a recognition of the levee as the boundary. The essence of a boundary by acquiescence action is that the landowners' conduct, not their parol agreement, determines the existence of the boundary. See Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969); Lammey v. Eckel, supra. In fact, a landowner may acquiesce by silence or submission. See Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965); Stewart v. Bittle, 236 Ark. 716, 370 S.W.2d 132 (1963). In light of these considerations, we find no error on this point.

Appellants also contend that, even though the controversy in this case arose in 1999, the deeds from the McCaughan heirs to appellee McCaughan Properties Limited Partnership in 2001 did not include the disputed tract. This, appellants claim, is evidence that the McCaughans did not consider the levee as the boundary. Although a person's knowledge that his deed reflects a boundary line different from the one he asserts in litigation may be relevant in determining whether he acquiesced in the asserted boundary line, see Webb v. Curtis, supra, we find no authority to the effect that it is dispositive. In any event, there is a great deal of evidence here, as set out above, that the McCaughans considered the levee the boundary line for many years.

Affirmed.

Hart and Roaf, JJ., agree.