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Hodges v. Gravel Hill Cemetery Committee

Court of Appeals of Arkansas, Division I

August 31, 2016

CARTHEL JACKSON HODGES, SR., REVOCABLE TRUST; CARTHEL J. HODGES, JR., TRUSTEE; and CARTHEL J. HODGES, JR., INDIVIDUALLY APPELLANTS
v.
GRAVEL HILL CEMETERY COMMITTEE APPELLEE

         APPEAL FROM THE WHITE COUNTY CIRCUIT COURT, [NO. CV-2014-312-3] HONORABLE CRAIG HANNAH, JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Susannah R. Streit, for appellants.

          D. Paul Petty, for appellee.

          ROBERT J. GLADWIN, Chief Judge

         Appellants Carthel Jackson Hodges, Sr., Revocable Trust, Carthel J. Hodges, Jr., Trustee, and Carthel J. Hodges, Jr., individually, appeal the August 25, 2015 order of the White County Circuit Court finding that appellee Gravel Hill Cemetery Committee had proved a boundary line by acquiescence. Appellants argue that appellee failed to establish a required element of boundary by acquiescence-specifically, that appellee was not proven to be a landowner of the property in question. Appellants also argue that the trial court erred in the weight that it afforded to various witnesses' testimony. We affirm.

         I. Facts

         On August 13, 1918, Amos A. Cohorn, trustee for Gravel Hill Cemetery, was deeded the northern portion of what is now commonly known as Gray Cemetery as reflected on the sketch plat of the cemetery and appellant Carthel J. Hodges, Jr.'s ("C.J. Hodges") property. The lower seventy yards by seventy yards (or 210 feet by 210 feet) of Gray Cemetery as reflected on the sketch plat was deeded to the public on March 5, 1907.

         The public ownership of this area of Gray Cemetery was confirmed by Kenneth Hazelwood, a professional land surveyor who drafted the sketch plat of the cemetery and C.J. Hodges's property, as well as by Barbara Stacy, the secretary/treasurer for appellee. Ms. Stacy testified that the lower half of Gray Cemetery had been deeded to the public, not to Gravel Hill Cemetery, on March 5, 1907. All of the graves in the 0.66-acre L-shaped strip of land ("disputed property") at issue in this case are located in the southwest corner, and those graves adjoin the portion of Gray Cemetery owned by the public.

         On August 21, 2014, appellee filed a petition to quiet title and claim of adverse possession against appellants to confirm ownership and quiet title to the disputed property that adjoined, and is contiguous to, Gray Cemetery. The disputed property was owned by appellant Carthel Jackson Hodges, Sr., Revocable Trust-of which appellant C.J. Hodges is the Trustee and sole beneficiary. C.J. Hodges filed his answer to the petition on September 2, 2014.

         A final hearing was held on April 30, 2015, after which the trial court entered its judgment granting appellee's petition to quiet title based on the doctrine of boundary by acquiescence. Title was confirmed in favor of appellee for the property lying immediately west of Gray Cemetery to the old fence line and for the property lying immediately south of Gray Cemetery to the existing road. The trial court awarded 0.46 acres to appellee pursuant to the order entered on August 25, 2015, and a timely notice of appeal was filed on September 24, 2015.

         II. Standard of Review

         This court reviews quiet-title actions de novo; however, we will not reverse the trial court's findings of fact unless they are clearly erroneous. Fletcher v. Stewart, 2015 Ark.App. 105, 456 S.W.3d 378. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. We give due deference to the trial court's superior position in determining witness credibility and the weight to be accorded their testimony. Id. This court does not have to defer to the trial court on a question of law. Smith v. Smith, 2011 Ark.App. 598, 385 S.W.3d 902. On a de novo review of a fully developed record, when the appellate court can clearly see where the equities lie, the appellate court may enter the order that the circuit court should have entered. Peavler v. Bryant, 2015 Ark.App. 230, 460 S.W.3d 298. According to Myers v. Yingling, 372 Ark. 523, 279 S.W.3d 83 (2008), because the location of a boundary is a disputed question of fact, this court will affirm unless the trial court's finding is against the preponderance of the evidence. See also Evans v. Mobley, 2011 Ark.App. 278. Whether a boundary line by acquiescence exists is to be determined from the evidence in each individual case. Id.

         III. Applicable Law

         In Myers, our supreme court held that "whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, [the line] becomes the boundary by acquiescence." Myers, 372 Ark. at 527, 279 S.W.3d at 87 (emphasis added). 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, see Evans, supra, and in such circumstances, the adjoining owners and their grantees are precluded from claiming that the boundary so recognized and acquiesced in is not the true one. Myers, supra.

         IV. Discussion

         A. Establishment of Adjoining Landowner Element of Boundary by Acquiescence

         Appellants initially argue that appellee does not "own" the land that adjoins appellants' land and therefore does not have standing to bring an action to establish a boundary line. We note that this defense was not raised in any of appellants' pleadings and was argued below with respect only to the adverse-possession claim. But the trial court did not base its decision on ...


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