Cite as 2013 Ark. App. 484 ARKANSAS COURT OF APPBALS DIVISION IV No. CV-13-29
CECIL JAMES REYI\OLDS and DONNA REYI\OLDS, His \Wife; and CECILJ. RE,YNOLDS, SR. APPELT,\NTS
V.
GFM, LLC
APPELLEE
opinion Delivered Septembet 71,, 20'13 APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT
COURT [No. CV-2010-300]
HONORABLE ADAM I{4zu<EY,
JUDGE
AFFIRMED IN PART; REVERSED IN PART
LARRY D. VAUGHT, Judge In this boundary-line dispute, appellants Cecil James Reynolds, Donna Reynolds, and Cecil J. Reynolds, Sr. (collectively "the Reynoldses"), appeal the dectee enteted by the Independence County Circuit Court, finding in favor of appellee GFM, LLC (GF1\0.r The trial court found that (1) the Reynoldses failed to prove that a fence line on GFM's property was a boundary by acquiescence, and (2) GFM was entided to a ptesctiptive easement in a road on the Reynoldses' propertF. On appeal, the Reynoldses challenge both findings, contending that the trial court clearly erted in denying their claim for a bounduty by acquiescence and in awatding GFM a prescriptive easement in the road on their property. We affirm the former finding;
howevet, we feverse the latter.
lMembets
of the Pteston Gtace family are the principal officets of GFM.
GFM and the Reynoldses are adjoining landownets in the Cave Cteek community located in Independence County, Arkansas. Pertinent to this appeal is ptoperty that GFM owns in Section 10, Township 14 North, Range 6 !7est. Due south of this property is an eighty-acre ttact of land owned by the Reynoldses, which is located in Section 15, Township 14 North, Range 6 West. North of the Reynoldses'boundary line, within GFM's property, there is a fence. The area north of the Revnoldses' boundalv line and south of GFM's fslsg-ths properw in dispute-is approximately eighty to one-hundted acres. GFM initiated this case in Novemb er 201.7 by fiting a complaint to quiet tide and fot a temporary restraining order against the Reynoldses, alleging that they, without GFM's permission, cut timber and built fences and toads on its ptoperty and blocked its access to its property. In response, the Reynoldses filed an answer and countetclaim alleging that the proper boundary line between the parties was the fence line on GFM's ptoperty. The Reynoldses alleged that the fence was the boundary by acquiescence, and they sought legal tide to the ProPerty in
dispute. At trial, GFM ptesented the testimony of Patrick Lemley, a licensed surveyor, who testified that in 2009 a member of the Grace family asked him to locate the boundary line between the parties' propety. Lemley concluded that the boundary line was the southetn boundary line of Section 10-not the fence on GFM's property. Lemley also testified that he found no acts of possession by the Reynoldses in the disputed ptoperty. Howevet, he observed deer stands on the disputed properry, which he believed belonged to a hunting club that GFM had on its proPerry.
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JimmyLeeDownstestifiedthathehadlivedintheCaveCreekcommunityfotthitysaid that he seven years and that the fence on GFM',s 1980s' Downs Pfoperty dated back to the had been a membet of the GFM hunting club for seven to ten years, and he confitmed the existence of hunting-club deer stands on GFM's pfopefty' Fot years prior to the Reynoldses' of the according to Downs, he and other hunters used the road that tan ownership Pfopefty, to access the hunting club' Howevet' Downs added that since through the Revnoldses'propetty the Reynoldses have owned the ptoperty, the road had been closed off. hunting club, owned The final GFM witness was Kendall Smith. He explained that the by the Grace family, managed the ptoperty in dispute'2 He testified that on a fecent visit' he on the road that ran through the Reynoldses' property and was stopped and questioned uaveled
by Donna ReYnolds' on behalf of the Reynoldse s, L,Itty lrilkes, a life-Iong resident of the cave cteek years community, testified that the Reynoldses kept cattle on their properry for fory to forry-five preexisted and that the Reynordses repaired the fence from time to time. He added that the fence of the that he did not know if the fence was put up by the Reynoldses' purchase PfoPerty, who owned the land on both sides of the fence, and that he did not know if the fence someone wilkes arso said that he had driven on the road through the line was the boundary rine.
Reynoldses' ProPertY
maflY times'
ouC' the 2smith said the hunting club had a-on .a.n.,n ual work day that included "cutting along with othet roads, "cutting out' ice damage on the and building deet stands, maintenance.
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Boyd Qualls testified that he had lived in the Cave Creek community for t'wenty-six years and currently lived iust west of the Reynoldses. Qualls said that he did not have an understanding of the property lines between the parties; however, he said he was familiar with the road on the Reynoldses' property. He said that the road had been there fifty or more years and that long ago it was tegularly used when nearby property was being mined. He added that onl-,, the Re.znoldses and theit ftiends r,rse the toad- now-"^.^J"^.-..-J..-.-"-CecilJames Reynolds flames) testified that he leased his property in 1988 and purchased it in 2003. \X/hile he agreed that his deed conveyed to him only an eighty-acre tract, it was his belief that his tact included the property in dispute. He said that over the yeats he used the properry sourh of the fence3 and that no one has ever questioned his use of the Propefiy. He added that the road through his property runs very close to his home, and that since 2003, only his family and his friends have used it. James's wife Donna Reynolds concufted, stating that only their friends and family use thefu road. At the conclusion of the tdal, the court asked counsel whether there was any dispute that, based on the Reynoldses' deed and the 2009 survey, GFM was the recotd tide holder of the property at issue. Counsel for the Reynoldses conceded that there was no dispute on that mattet, to which the trial court stated, "the burden then, of course, . . . falls upon the fReynoldses] to present their claim [for bound ary by acquiescence]."n Thereafter, the trial court quieted tide in
James testified that he ran catt)e,built new fences, repaired the old fence, installed deer stands, and cleated the ptoperty in dispute. 'Also during this colloquy, counsel for the Reynoldses conceded thatwhile they asserted adverse possession as an affirmative defense in their aflswer, they could not prove adverse possession, and, as such, abandoned that defense, relying solely on boundary by acquiescence.
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the disputed property in accotdance with the 2009 survey; found that the Reynoldses failed in meeting their burden of proving that the fence on GFM's propeffy was a boundary line by acquiescence; and found that the road across the Reynoldses' tract was subject to a prescriptive easement in favor of GFM, its successors, assigns, and invitees, but not the public. After the decree detailing these findings was entered by the trial court, the Reynoldses timely fi.led a notice of appeal. The Reynoldses' first point on appeal is that the trial court cleariy ered in finding that the fence did not constitute a boundary by acquiescence. A fence, by acquiescence, may become the accepted boundary even though it is contrary to the survey bne. Strotber u. Mitchell,2011 Atk. App.224, 1.7,382 S.!7.3d741,752. When adjoining landowners occupy their respective ^t premises up to the line they mutually recognize and acquiesce in as the boundary fot a long
period of time, they and their grantees are ptecluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. 1d.,382 S.W.3d at7 52. 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 hne. 1d.,382
S.W.3d is the agreement and acquiescence, not the fence itself, that contols. Id. at ^t752.It t7-1,8,382 S.W.3 d at752. The intention of the parties and the significance they attach to the
fence, rather than its location or condition, is what is to be considered . Id. at 78, 382 S.W.3d at 752. Neither a prior dispute about the boundary line nor adverse usage up to a fence is required to establish a boundary by acquiescence. 1d.,382 S.W.3d atl52.
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We have noted that the mere existence of a fence, without evjdence of rnutual recognition, cannot sustain a finding of such a boundary. 1d.,382 S.!7.3d at752. Also, the fact that a landowner puts a fence inside his boundary line does flot mean that he is acquiescing in the fence as the boundary, theteby losing tide to the strip on the other side. 1/., 382 S.W.3d at T|Z.Thatoccurs only if the neighbor takes possession and holds it fot the requisite number of vears. 1d..382 S.!7.3d at752-53. Finally, because the locatio n of aboundary is a disputed question of fact, we will affirm unless the trial court's finding is cleatly against the pteponderance of the evidence' Id-,382 S.W.3d atl53.A findingis clearly erroneous when, although there is evidence to supportit, the reviewing court on the entire evidence is left with a definite conviction tha;t a mistake was committed.Id. at 18-19, 382 S.W.3d Whether a boundary line by acquiescence exists is ^t753. to be determined from the evidence in each individual case.Id. at1.9,382 S.!7.3d ^t753-In the case at bar, the trial court found that the Reynoldses failed to prove their claim for boundaryby acquiescence. The court specifically stated atthe conclusion of the trial thatto meet their burden of proof, the Reynoldses would have to prove that the conduct, beliefs, and intentions of bothlandowners established a tacit agreement that the fence line was the boundary line. However, in this case, as found by the triai coutt, thete was an absence of this type of evidence from the perspective of GFM ot its predecessors. No witness offered evidence that GFM ot its predecessors believed or intended the fence to be the boundary line. And while each of the Reynoldses'witnesses testified that theywete familiarwith the fence line, had been on the property in dispute, andr.rray have thought that the fence line was the boundary line, none were
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certain where the boundary line benveen the parties' ptopetty was and none testified about GFM's or its predecessors' tacit agreement or recognition that the fence line was the boundary
line. Notably,James Reynolds's testimony ptovided only half of the requirements needed to establish boundary by acquiescence. He stated that he and his family had alvrays considered the fence iine a.s the tror-rndasr line, tha.t they r-rsecl the disputed propertv for forq, years, and that they maintained the disputed property. However, the mere subiective belief that a' fence is the boundary line is insufficient to establish a boundary bet'ween two propeties- Boltsteru. Shoemake, 101 tuk. App. 148, 1,52,212 S.!f.3d 1.39,'143 (2008). James did not offer any evidence of GFM's mutual recognition of the fence as the boundary. The trial court stated, "ffames Reynolds] was veq/ frank in his testimony, he said . . . 'I always thought that [rny ptoperry] went up to the fence line . . . .'But he never really came out and said anything about some sort of an agreement either implicitly or explicitly with any other landowner that would give you
acquiescence." Moreover, as pointed out by the uial court, thete was evidence of GFM's conduct that established that it did not believe the fence was the boundary line. Sevetal witnesses testified that south of the fence ]ine, there were deer stands that wete maintained by GFM. Also, there was evidence that the hunting club, owned by GFM, managed and maintained (at least annually) the properry south of the fence.
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Because there was an absence of testimony showing that GFM considered the fence to be the property line and there was evidence of GFM's conduct to the contrary, we hold that the trial court did not clearly err in refusing to find the fence was the boundary by acquiescence. The Reynoldses' next argument is that the trial court clearly erred in finding that GFM was entitled to a prescriptive easement in the Reynoldses' road. The following summarizes our
A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. InA rkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements.
Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. The determination of whether a use is adverse or permissive is a factual question, and former decisions are rarely controlling on this factual issue. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question
Willows, LLC v. Bogy, 2013 Ark.A pp. 59, at 3 (citing &berts v. Jackson, 2011A rk.A pp. 335, 384 S.W.3d 28). We review cases that traditionally sound in equity de novo on the record, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Acuna v. Watkins, 2012 Ark. App. 564, at 6, 423 S.W.3d 670, 674.A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id., 423 S.W.3d at 674. In reviewing a trial
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court's findings, we give due deference to the trial court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. at 6-7, 423 S.W.3d at 674 . Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. at 7, 423 S.W.3d at 674 . It is our duty to reverse if our own review of the record is in marked disagreement with the trial court's findings. Id., 423 S.W.3d at 674. 1n the case at har, the trial court found that the Reynoldses' road had been used by the community for a long, long time, way before-well, it's been used by the Reynolds, in fact, and [their predecessors]. It's been used so long that there is a prescriptive easement across it. The fact that they bought it, that's a switch in landowners, it's been used as a road long-probably even before [the Reynoldses' predecessors] owned it. So as far as I'm concerned, there is a right-of-way across the road.
The Reynoldses argue that the trial court's finding on this issue was clear error because there was no evidence in the record that GFM, or its predecessors, used the road adversely for seven years. We agree. No witness testified that GFM used the road in any fashion, much less adversely and overtly, for seven years. And while every witness at trial testified that they had used the Reynoldses' road, none testified that they used it in a manner that was adverse or hostile to the ownership rights of the Reynoldses. To the contrary, there was ample evidence of permissive use of the Reynoldses' road. According to Qualls, Downs, and James and Donna Reynolds, since 2003, only the Reynoldses and those with their permission had used the road. This was corroborated by evidence that when Smith and Lemley recently traveled on the Reynoldses' road, their use of the road was interrupted by Donna and James Reynolds. While the Reynoldses' road may have been used often in the past, there is no evidence that that use was anything other than permissive. In recent years, the evidence presented was that
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Cite as 2013 Ark. App. 484 only the Reynoldses and their friends used the road. There is a lack of evidence that for seven years GFM adversely used the road. Therefote, we hold that the trial court cleady ered in avzarding GFM a prescriptive easernent in the Reynoldses'road, and we reverse on that issue. Affirmed ir prrq tevetsed in prrt. lTHrreAKEn and HxsoN,JJ., agree. Bistow E Richardson, PLLC,by: Melissa B. Richardson, for appellants.
Blair & Stroud,by: Robert D. Stroud, for appellee.
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