BOB E. CLARK AND BUNEVA C. CLARK APPELLANTS
N.A. CAUGHRON APPELLEE
FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. 71CV-13-57]
HONORABLE MIKE MURPHY, JUDGE
& Co., PLLC, by: Tim J. Cullen, for appellants.
Sanford, P.A., by: Jon R. Sanford, for appellee.
RAYMOND R. ABRAMSON, JUDGE.
appeal involves a boundary-line dispute. Bob Clark runs a
cattle-farming operation over 411.5 acres of land, part of
which is subject to this dispute. Clark originally acquired
120 acres from David Maness that were landlocked, and so
Clark asked his neighbor, N.A. Caughron, for a right-of-way
to get to the landlocked property. Caughron declined. Later,
Clark sued Caughron to quiet title for the encroaching fence
line and for unlawfully removing timber belonging to Clark.
Caughron counterclaimed, asserting that the fence line
established the boundary by acquiescence, or alternatively by
adverse possession. After a bench trial, the circuit court
found in favor of Caughron and held that "by
acquiescence and open and notorious possession for a period
in excess of seven years that the parties' boundaries in
the areas in dispute should be fixed by the old fences."
For the following reasons, we affirm.
filed a timely notice of appeal, raising the following
points: (1) the circuit court erred in finding the fence line
was a boundary by acquiescence, and (2) the circuit court
erred in its alternative finding of adverse possession. This
court reviews boundary-line cases de novo. Teague v.
Canfield, 2014 Ark.App. 712; Stadler v. Warren,
2012 Ark.App. 65, 389 S.W.3d 5. But we will not reverse the
circuit 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 definite conviction that a
mistake was committed. Id. In reviewing a circuit
court's findings of fact, we give due deference to its
superior position in determining witness credibility and the
weight to be accorded their testimony. Id. However,
this court does not defer to the circuit court on a question
of law. Smith v. Smith, 2011 Ark.App. 598, 385
S.W.3d 902. 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.
these standards, we examine the facts presented to the
circuit court. Clark indicated that initially he bought 120
acres of landlocked land from David Maness. After Clark's
neighbor, N.A. Caughron, had declined his request for a
right-of-way to get to the landlocked property, Clark
approached another neighbor, Anton Simon. Simon also declined
to give Clark a right-of-way over his land, but he offered to
sell 291.5 acres of his land that joined Clark's
property. After assembling the contiguous parcels, Clark
discovered an easement through a church and adjacent
cemetery. He then contacted the county judge, who
commissioned a survey by Eddie Wheeler. Wheeler's survey
indicated that the fence line between Clark's and
Caughron's land was encroaching 15 to 18 feet onto
subsequently contacted Billy Caughron ("Billy"),
who is N.A.'s son and his agent by virtue of power of
attorney. Billy told Clark, "Don't cut my
fence." Clark agreed and then obtained the survey for
the Simon land, which had previously been performed, and he
and Billy walked the property together. On that walk, the two
encountered a pile of stones with blue paint that Billy
indicated was the corner of the property as reflected on the
Reinold survey in 1982. Clark then painted the rock pile red.
Clark commissioned a new survey from Lane Housely. Housely
found that Caughron's fence was encroaching on
Clark's land about 300 feet where it met the Simon land
and almost 600 feet where it met the Maness land. Clark asked
Billy to split the cost of a survey to establish their true
boundary; Billy declined. Clark then commissioned Housely to
survey both the Simon and Maness properties. Housley could
not find the corner markers referenced in the Reinold survey.
Clark, Billy, and the Housley team met to discuss the
findings, and Billy insisted the corners were different than
the survey findings. No pin could be found, however, and the
stone markers had disappeared.
then sued Caughron to quiet title for the encroaching fence
line and for unlawfully removing timber belonging to Clark.
Caughron then counterclaimed, claiming the fence line
established the boundary by acquiescence, or alternatively,
by adverse possession. On appeal, Caughron also objected to
Clark's statement of the case, which is recounted above,
and added several points that were presented to the circuit
court but were omitted from Clark's recitation of the
facts. First, Caughron points out that he had built the
fences that have been in place for over 50 years on the
southern boundary of the property and nearly 45 years on his
western boundary. Furthermore, neither of the two previous
contiguous landowners had ever disputed the location of the
fences representing the boundaries. Caughron and Simon (who
is Clark's predecessor in title to the west) had an
agreement that Caughron's western boundary line would be
where it is presently located. Furthermore, Simon and
Caughron both contributed to the financial cost of building
the fence pursuant to a survey to memorialize it.
notes that Clark purchased the property on both the west side
and the south side of Caughron's land without getting a
survey or speaking with him prior to the purchase on either
occasion. Caughron also points out that Clark did not file
the action objecting to the location of the fences until
seven years after the purchase of the two properties
bordering his land. At trial, six people testified that since
the 1970s, they had visited, been on, and hunted on
Caughron's property and that they were not aware of
anyone having ever challenged him on the ownership or right
to possession of the land. Nor had they seen any evidence of
the fences having been moved during their period of exposure
to the land. All of the witnesses had visited the land again
just before trial and testified that there had been no
changes in the fences or the boundary lines since they had
been on it the last time. None of their testimony was
rebutted or challenged by Clark.
Caughron testified that he had "brushhogged" the
pastureland in question, had selectively sprayed trees with
herbicide, had logged it, had run cattle on it, had built
ponds on it, had fertilized the pastureland, and had
maintained and repaired the fences.
first point on appeal is that the circuit court erred by
finding a boundary by acquiescence. In Myers v.
Yingling, 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008),
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, and in such
circumstances, the adjoining owners and their grantees are
precluded from claiming that the boundary so recognized and
acquiesced is not the true one. Id.
the circuit court did not err by finding a boundary by
acquiescence. The circuit court was correct in finding that
both Caughron's southern line and western line were
established by acquiescence. The southern line was created
when a predecessor in title to David Maness, the Clarks'
own immediate predecessor in title, owned the property in the
1950s and before there was any fencing marking the line
between them, pointed out to Caughron where the line
separating their properties should be located. The western
line was created when Simon made an agreement with Caughron
to build the fence on the surveyed line between them.
Clark's argument that Caughron "committed fraud when
he fenced the area at the prior owner's request" is
not supported by the evidence. The ...