John Randall v. George Ward

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOHN RANDALL

APPELLANT

V.

GEORGE WARD

APPELLEE

CA 03-700

March 10, 2004

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[CV 2002-872-IV]

HONORABLE EDWARD T.

SMITHERMAN, JR., CIRCUIT

JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

This case involves a boundary dispute between appellant, John Randall, and appellee, George Ward. Appellant bought 124 acres in Garland County. The property is bounded on the east and north by property that is owned by appellee as trustee of a revocable trust for his mother, Gertrude Ward. After purchasing the property, appellant hired a surveyor to fix the boundaries and someone to construct a fence along the surveyed lines. Appellee filed an action to enjoin appellant and to quiet title. Following a hearing and a site visit, the trial court determined that an old fence, running along the disputed boundaries, had been in existence for over thirty years, and that the conduct of prior land owners and leaseholders over many years implied the acceptance of the old fence as the boundary by acquiescence between the properties. The trial court ordered the removal of any newly installed fencing and replacements for the original fencing that had been destroyed. For his sole point of appeal, appellant contends that "[t]he lower court erred in fixing the old fence as the boundary between the parties' properties where no fence existed and there was no evidence of a fence or other markers to indicate a boundary." Finding no error, we affirm.

Equity cases are reviewed de novo on appeal. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999); Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). We will not reverse a trial court's finding of fact in a boundary-line dispute case unless the finding is clearly erroneous. Ward, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. The location of a boundary line is a question of fact. Id. In reviewing a trial court's findings of fact, we give due deference to the trial court's superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).

The case-law principles that govern whether a boundary line has been established by acquiescence are well settled. 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 v. Adams, supra. 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. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). Unlike the seven-year period required to acquire land by adverse possession, 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. Ward, supra. This period varies with the facts of each case, just as all circumstantial evidence does. Id. Moreover, establishment of a boundary line by acquiescence does not require adverse possession of the land by one party. Ward, supra; Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965). When the adjoining landowners occupy their respective premises up to the line they acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus acquiesced in is not the true boundary, although it may not be. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). A boundary line may be established by acquiescence whether or not preceded by a dispute or uncertainty as to the boundary line. Id. Where 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. Ward, supra.

Much of the critical testimony in this case references appellee's Exhibit No. 23, which is a map showing the layout of the two properties, the disputed boundaries, and the various markers and fences. Appellant's approximate 124 acres lies within three forty-acre parcels: Parcel 1 - - the southwest quarter of the southwest quarter of section 22; Parcel 2 - - the northwest quarter of the northwest quarter of section 27; Parcel 3 - - the northeast quarter of the northwest quarter of section 27, all of which are located in Township 3 South and Range 22 West. For ease of discussion, we will refer to these parcels as Parcel 1, Parcel 2, and Parcel 3. Parcels 2 and 3, which are both located in section 27, lie side by side, and Parcel 1, which is located in section 22, is contiguous to and north of Parcel 2. Appellant's property is therefore L-shaped. It is bounded on the east and to the north by appellee's property.

While several areas of dispute were at issue during the trial, appellant pursues only one area of dispute on appeal. It involves an approximate 300-foot portion of the eastern boundary of appellant's Parcel 3 (the northeast quarter of the northwest quarter of section 27) and the western boundary of appellee's property that lies to the east and adjacent to Parcel 3. On appellee's map, Exhibit No. 23, the disputed area at issue in this appeal lies between points designated as Points 2 and 3 on the map. Point 3 marks the southeast corner of Parcel3, and Point 2 marks a point that is approximately 300 feet due north of Point 3 and lies at the northern bank of Meyer's Creek. Point 1 on the map lies farther due north from Point 2 and marks the northeast corner of Parcel 3.

At the trial of this matter, appellee, George Ward, testified that he was the trustee of the Gertrude Mae Ward Revocable Trust and that Gertrude Ward was his mother. He explained that the real estate was conveyed into the trust by a deed that was filed for record on October 20, 1994. Looking at his Exhibit No. 23, appellee explained that the property lying "East of Points 1 through 3" was acquired by his grandfather, O.T. Howton, by warranty deed dated November 25, 1929. He stated that his mother, Gertrude, was the only surviving child and that she is eighty-five years old. Appellee showed where his mother lives on the map, where an old road, or shortcut, runs between Dallas Road and Caddo Gap Road. He stated that his mother has lived in her current location for approximately twenty-five years and that for the thirty years prior to that, she lived across Dallas Road. He stated that he was fifty-four years old and had lived on the property until he left for college, that he was very familiar with the property, and that he had hunted and fished and had cattle there for over forty years.

Appellee also testified that he is familiar with the property to the west of the trust property, i.e., the 124.5-acre farm owned by appellant. Appellee stated that when he was a child the property was owned by Alonzo Tallent; that he played with the Tallent grandchildren; that they were all over the place hunting, fishing, and swimming in the creek; that he is still very familiar with that property; and that he was involved in maintaining the fences. He said that the person who owned the 124.5-acre tract just prior to appellant was Robert Ward, who was no relation to appellee, and that Robert Ward owned it for approximately eight to ten years. He stated that Marshall Tallent owned it for some twenty years prior to that.

Looking at Exhibit No. 23, appellee explained that an old road bed stretched from Point 1 to Point 2; that it was a cutoff road; and that it went on across the creek to Caddo Gap Road. He said that back in the 1920s, when people primarily used horses and wagons instead of cars, they would use this old road to cut between the two major roads, Dallas Road and Caddo Gap Road. He said that this road is no longer used as a cutoff between the two roads because it is a creek, it washes out, and you can hardly cross it in an automobile. Appellee explained that after his grandfather died in 1954, his family fenced off the other side of the creek on their property side to keep cattle from going and coming through there. He said that no one was traveling the road any more and that it was in their field, so they shut it down. He said that it was fenced off in the early 1960s. He explained that it had been the only access road to his grandfather's house and that they still use the road to haul hay and timber, using a tractor to drive on it. He explained that he was drawing the road on Exhibit No. 23 from the Old Dallas Road down to the last gate at the banks of Meyer's Creek [Point 2].

Appellee stated that until appellant's crew went in there, no one else besides family and others with his permission had used that road. He said that before appellant went out there with his equipment, there was no access from appellant's farm to appellee's farm at or around any place from Points 1 to 2. He said that no one used the property to the east of the fence other than he and his family, and that Robert Ward and Mr. Tallent never accessed that road bed or appellee's property to the east in the areas of Points 1 to 3, except in the 1980s when Mr. Tallent cut some timber across the creek. He said that there is no fence between Points 2 and 3, but that there is a corner that is well established; that three fences come to the corner; and that the reason there is no fence in that area is because it is so steep that cattle would not go over there. He said that cattle would not be able to get up or down that hill.

Appellee explained that on the occasions that Mr. Tallent had cut timber, he and Mr. Tallent erected bamboo poles with flags at the corner of the fence, where they thought the corner was, in order to see where the line was because no fence existed in that stretch. Appellee said that they went from both ends and went down in the middle and put up a flag and "country boy" lined it through there. He said that they did this in the winter when the leaves were gone and "you could see up there." He said that they counted the stumps and that Tallent paid about $250 for trees that had been cut across that line. Appellee explained that Tallent cut them on both sides between Point 3 and Meyer's Creek [Point 2] to the west of where the appellant's surveyor set his corner, but that he intended only to cut everything west of it. Appellee said that Tallent paid him for the timber not once but twice, and that both times they put up bamboo poles with white flags and had a timber man measure the stumps and figure out the tonnage, and that Tallent paid for those.

Appellee testified "that fence line has been accepted as a boundary between the Trust property to the east and the Farm to the west throughout my life." He said that in the Exhibit 6 photograph, the post with the pink ribbon on it is the post he testified about, and that the Exhibit 5 photograph shows appellant's surveyor's corner and in the background is the post that is pictured in Exhibit 6. He explained that he was marking that post on Exhibit 23 with an arrow and the word "post." He said that the surveyor placed his post more than ten feet and less than twenty feet to the East of the designated post onto appellee's property.

Appellee testified:

The post is aged and has been there awhile. It's had numerous wires nailed to it. You can see the fence has come in from three directions, unfortunately not from our direction, but from the other two directions from South and from East and West. Those fences are there right now today. It looks like it has been there forever. There is also a metal stake in the ground that you have to dig around to find it, but it's there and it has been there forever. If you follow the fence a straight line and put a ruler on it you will come out at the old corner, not at the new corner and that is from the fence and not from where the [appellant's] surveyor has set across the road.

He said that for all of his life, his family has been in exclusive and continuous possession of that narrow strip of property and that it was recognized and acknowledged as a boundary by him and the title owners to the west for all of his life.

Appellee further testified:

Looking at the fence that [appellant's] surveyor depicted on the plat between Points 1 and 2 on [appellee's] Exhibit "23," it is a magnificent fence and had no openings in it prior to Randall's crew making openings in it. You can tell the age of it from the appearance, as there is wire that has grown half way into the tree. We have pictures showing that there is at least three different fences put there maybe four. It is mostly on standing trees and is in a straight line from Point 1 almost all the way down the creek. [Appellee's] Exhibit "7" shows what appears to be very old piece or wire in the middle of a tree. Exhibit "9" shows hog wire and just about any kind of wire used in the fence. In Exhibit "7" I would say its got three different fences right there. I have done repairs to that fence line all my life as well as Robert Ward's crew and Kenny Sheets and Mr. Tallent.

Appellee explained that there are also parts of a fence on his side of the road between Points 1 and 2 on Exhibit 23, and that there had to be fences on both sides of the road back when it was used by everybody as an open road in order to keep the cattle out of the road. He said that when the surveyor showed him a copy of the survey and told him where appellant was going to move the fences, he called appellant and told him that the fences were the property line.

On cross-examination, appellee explained that on Exhibit 23, there is not a continuous fence from Point 3 to the area marked Point 2; that there is a gap of about 300 feet where there is not a fence; that there is no evidence of a fence because of the steepness of it; that "the fence on the line 2 to 3 we have a little bit of fence going down that way but the creek was basically the retainer for our cattle." He said that the white flags on bamboo posts were not still there, and that there are no stobs or stakes or anything between points 2 and 3.

Kenny Sheets testified that he lives on Old Dallas Road; that he has been familiar with the property shown on Exhibit 23 for twenty years; that he and Robert Ward were partners and he was able to run his cattle on Robert Ward's property; that Robert Ward owned the property [now owned by appellant] for seven or eight years; that when Marshall Tallent owned it prior to that, Sheets leased the land from him to run cattle; and that he is familiar with the fence that is shown running from Point 1 to Point 2. He said that during the twenty years he had cattle on what is now appellant's property, he maintained the fences between Points 1 and 2. He testified that during those twenty years, the fence between Points 1 and 2 was accepted as the boundary line between the two farms. He said that between Points 2 and 3, there is a high hill and that "they hardly ever use that"; and that the property goes up to the top of the hill, the creek runs down below, and "this is woods," and "we block the creek off here so they can't go down to this area which is how we keep them away from climbing out of there." He said that he was familiar with the road bed that goes from Old Dallas Road all the way down to "my creek"; that appellee and others with appellee's permission used that road, but nobody else that he knew of used it.

Dr. Joe Edwards testified that he met appellee about twenty-two years ago; that he and appellee were in the cattle business together about fifteen years ago for about three years; and that he is familiar with the property shown on Exhibit 23. He said that he and appellee worked together mending the fences; that he is familiar with the road bed and the fence that runs from Point 1 to Point 2; that he repaired the fence on the west side of the lane toward appellant's farm; and that the fence line on the west side of the road between Point 1 and Point 2 was accepted as the boundary line between the two properties.

Nathan DeAryan, the surveyor, testified that he was hired by Robert Ward to do a survey of the property, and that his survey of the boundary showed a number of conflicts inthe record title. He said that with respect to the east line of the northeast quarter of the northwest quarter of appellant's property [Parcel 3], he found at least two fences along that line; that there was wire grown into trees in both of those fences; that it had been repaired a number of times; and that basically, there were two rows with a number of wires in them. He said that in his opinion, one had newer wire on it and the other was in less repair so it was probably older. He reported that he found some government markers on the property, and that the Bureau of Land Management had performed a survey in 1936. He said that it appeared to him that the creek influenced the location of the fence and that people were not trying very hard to be picky about it. He said it looked as if they were trying to put a fence up for livestock; they were not trying to get on the line.

On cross-examination, DeAryan stated that there was no fence at the top of the hill; that there was a post where all of the established fences came together; and that he looked for an iron pin or marker and could not find one. He stated that at the point where he worked, it would have been impossible to "string line" from the post in [appellee's] exhibit 5 to the other occupation point. He further stated that, "[f]rom the perspective of the land owner out there I would look at that and say this is probably the corner but as a surveyor I tend to look at that and say hey, there is a good survey here, what is going on."

Appellant chose not to testify, and the parties rested. The trial judge advised them that he would visit the property himself. In its subsequent order, the trial court found that "[t]he old fence, along the disputed boundaries, has been in existence in its present locations for a period in excess of thirty (30) years," and that "[t]he conduct of prior land owners and leaseholders, over many years, implies the acceptance of the old fence as the boundary by acquiescence between the properties."

As noted earlier in this opinion, there were several areas of boundary disputes at trial. However, appellant limits his appeal to the approximate 300-foot gap between Points 2 and 3 on Exhibit No. 23, and contends that the trial court erred in finding that the old fence fixed the boundary in this area because there was no fence in this area. He relies upon cases that stand for the general proposition that Arkansas law does not support the establishment of a boundary by acquiescence along an invisible line between two large land forms, such as a levee, that are not truly capable of being used as accurate markers of a boundary. See, e.g., Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). He further contends that the instant case is not controlled by holdings such as that in Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), where the court recognized an invisible line between two concrete posts or stobs placed by the adjoining land owners. He distinguishes the Disney case from the case at hand by noting that the distance between the markers in Disney was thirty feet, while the distance between Points 2 and 3 in the instant case is at least 300 feet and possibly 500 feet. We do not find the distinction to be convincing.

Here, it is undisputed that a very old fence ran between Points 1 and 2 on Exhibit 23, with Point 2 located on the north bank of Meyer's Creek. Although the testimony established that there is no fence running between Point 2 and Point 3, there was testimony and other evidence showing the existence of a post located at Point 3. Appellee testified that a straight line could be drawn from the post [Point 3] to the end of the fence line [Point 2]. Appellant's surveyor acknowledged that he found a "fairly clear statement of occupation" located approximately fourteen and one-half feet from the "technically correct point," which would be the post at Point 3. Their was also testimony explaining why no fence was necessary in the area between Point 2 and Point 3 because the creek and the steepness of the hill kept cattle from wandering into that area. Finally, there was also testimony that one of appellant's predecessors in title marked this area on two occasions, between Point 2 and Point 3, and paid appellee for timber that was cut on the eastern side of the line. In light of these facts and the trial court's site visit, we find no clear error in the trial court's decision.

Affirmed.

Bird and Vaught, JJ., agree.