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Whitecotton v. Owen

Court of Appeals of Arkansas, Division I

February 24, 2016

RICKY WHITECOTTON and DENENE WHITECOTTON, APPELLANTS
v.
ARLIS RAY OWEN and JEANNIE OWEN, APPELLEES

Page 381

          APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT. NO. 42PCV-13-1. HONORABLE TERRY SULLIVAN, JUDGE.

         For APPELLEE: R KEVIN BARHAM.

         For APPELLANT: JON RODGERS SANFORD.

         PHILLIP T. WHITEAKER, Judge. GRUBER and HOOFMAN, JJ., agree.

          OPINION

         

Page 382

          PHILLIP T. WHITEAKER, Judge

         This appeal involves a boundary-line dispute between appellants Denene and Ricky Whitecotton and appellee Jeannie Owen.[1] 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.

          We 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. Id.

         With 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 in dispute.

Page 383

          Owen 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."

          Owen 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 ...


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