CARTHEL JACKSON HODGES, SR., REVOCABLE TRUST; CARTHEL J. HODGES, JR., TRUSTEE; and CARTHEL J. HODGES, JR., INDIVIDUALLY APPELLANTS
GRAVEL HILL CEMETERY COMMITTEE APPELLEE
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.
Paul Petty, for appellee.
J. GLADWIN, Chief Judge
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.
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.
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.
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.
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.
Standard of Review
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.
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.
Establishment of Adjoining Landowner Element of Boundary by
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 ...