FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT. NO.
42PCV-13-1. HONORABLE TERRY SULLIVAN, JUDGE.
APPELLEE: R KEVIN BARHAM.
APPELLANT: JON RODGERS SANFORD.
T. WHITEAKER, Judge. GRUBER and HOOFMAN, JJ., agree.
PHILLIP T. WHITEAKER, Judge
appeal involves a boundary-line dispute between appellants
Denene and Ricky Whitecotton and appellee Jeannie
Owen. Owen filed suit against the
Whitecottons, seeking ownership of a disputed strip of land
under the theories of boundary by acquiescence and adverse
possession. The Logan County Circuit Court found that Owen
had proved ownership of the disputed strip of land under both
theories. The Whitecottons appeal, arguing that the circuit
court erred in making its findings. We affirm.
review boundary-line cases de novo. Teague v.
Canfield, 2014 Ark.App. 712; Stadler v. Warren,
2012 Ark.App. 65, 389 S.W.3d 5. Because the location of a
boundary is a disputed question of fact, we will affirm the
circuit court's finding unless it is clearly against the
preponderance of the evidence. Reynolds v. GFM, LLC,
2013 Ark.App. 484, 429 S.W.3d 336. 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 conviction that a mistake was committed.
these standards in mind, we examine the facts before the
circuit court. Owen and the Whitecottons own property with a
common boundary line that runs north to south between them.
The Owen property is located on the west side of the common
boundary, and the Whitecotton property lies to the east side.
Between the two properties is a line of trees with remnants
of an old fence running through it. The line of trees is not
straight and is off the deed line, according to survey
evidence. The strip of land to the east of the actual deed
line and to the west of the line of trees is the property is
claimed ownership from the deed line to the disputed tree
line. Numerous witnesses testified about the existence of an
old fence that ran along the tree line. A survey conducted by
James Higby confirmed remnants of an old, rusty wire fence
along the ground that ran east of the actual deed line. Higby
noted that the land had been mowed as close to the fence line
as possible on the west side. He acknowledged that the line
he surveyed in conjunction with the possession line did not
match the deed line, but it did conform to the tree line and
to the line where the property had been mowed. Higby
concluded that, in his view, given the tree line, the
remnants of the old barbed-wire fence, and the mowing, "
that constitutes possession."
claimed possession and maintenance of the disputed property.
In support of her claim, she presented evidence of her
family's historical possession of the property. Their
possession began sometime in the 1930s when Owen's
grandfather claimed the land. Owen recalled her grandfather
gardening in the disputed area between his house and the tree
line until he passed away in 1989. This recollection was
supported by her witnesses, who confirmed her family's
gardening on the property and mowing the tract up to the
fence line. The family's possession continued through the
years. Owen's father owned the property from 1949 until
he deeded it to Owen and her brother in 1991. Owen described
family get-togethers on the land during this time. Numerous
relatives and community members testified about the many
family gatherings held on the property between the house and
the fence line throughout the years. Owen introduced
photographs from the 1950s of her family on the property. She
also introduced current photos that showed that the tree line
looked much the same at the time of trial as it did decades
ago. Since taking ownership ...