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McJunkins v. McJunkins

Court of Appeals of Arkansas, Division II

May 9, 2018



          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellants.

          Dobson Law Firm, P.A., by: R. Margaret Dobson, for appellees.

          BART F. VIRDEN, Judge

         Appellants, William Ray McJunkins ("Ray"), Angie McJunkins, Paula Knight, and Garland F. "Kip" McJunkins, Jr., deceased, [1] appeal from the Grant County Circuit Court's orders denying their claims of boundary by acquiescence and adverse possession with respect to two disputed areas of land, to which appellees Phillip and Virginia McJunkins ("Phillip") hold legal title. The trial court also ordered Ray to pay Phillip $1, 072.78 for survey indicators that he had removed from Phillip's land. Appellants argue that the trial court clearly erred in its decision. We affirm in part and reverse and remand in part.

          I. Background and Procedural History

         J.D. McJunkins had five sons. Shortly before he died, J.D. had his property surveyed by William Fred Spears, Jr., on March 3, 1986. He then brought all his sons together and gave each son a deed to an approximate 18.18-acre tract of land from the family farm. The deeds were dated March 26, 1986, and referred to the Spears survey. J.D. died in April 1986.

         The five sons are Ford McJunkins, Sr., who died in 2003 and left Tract 5 to his son, Ford McJunkins, Jr.; Donald McJunkins, deceased, who left Tract 1 to his son, Mike McJunkins; Garland McJunkins, Sr., who died in 2012 and left Tract 4 to his three children (appellants Ray, Paula, and Kip); Houston McJunkins, deceased, who sold Tract 3 to his brother, appellee Phillip, in 1987; and Phillip McJunkins, the youngest and only surviving son, who inherited Tract 2. Near the family farm is what is known as the Reeves tract, consisting of eight acres. Clyde Reeves first owned the tract, and he left it to his son Travis Reeves. Travis sold it to Ford McJunkins, Jr., and his wife in 1992, and they sold it to appellants Ray, Angie (Ray's wife), and Kip in 2015.

         This family dispute involves Tract 3, which is a backwards L-shaped piece of land belonging to Phillip; Tract 4, belonging to appellants Ray, Paula, and Kip, which is a rectangular piece of land located adjacent to the north and northwest sides of Tract 3; and the Reeves tract, which is a square piece of land located south of the western portion of Tract 4 and west of the southern portion of Tract 3 and is now owned by appellants Ray, Angie, and Kip. A county road bisects the family farm and runs north and south through Tracts 3 and 4. The pieces of land claimed by appellants are located on Phillip's Tract 3. One area consists of approximately half an acre lying south and east of Tract 4. It includes a small pond in the southeast corner and is enclosed by a hog-wire fence. The other area claimed by appellants is a long, narrow strip of land running north and south and consisting of approximately six-tenths of an acre. It lies adjacent to the east side of the Reeves tract and west of the county road.

         In March 2016, Phillip's lawyer sent a letter to Ray stating that, although Ray and his father had permission since 1986 to use part of Phillip's land without paying rent, Ray no longer had permission to use the land enclosed by the hog-wire fence. On May 10, 2016, appellants filed a complaint against Phillip alleging that they had acquired the two disputed areas set forth above through boundary by acquiescence, or alternatively, adverse possession. According to appellants, neither they nor their predecessor had sought or were granted permission by Phillip to use the land. Appellants also asserted a claim for trespass. Phillip answered the complaint, generally denying the allegations, and stated affirmatively that Garland had permission to use the land enclosed by the hog-wire fence. Phillip also asserted a counterclaim for unlawful detainer, quiet title, and trespass. He requested damages for trespass including, among other things, Ray's removal of survey stakes and posts. A hearing was held on October 17, 2016.

          II. Trial Testimony[2]

          A. Area Enclosed by the Hog-Wire Fence

         Ray testified that there was an old meandering barbed-wire fence surrounding an area they called the hog pen. He said that he remembered walking over it as a kid and said that it "wasn't really usable" any longer. Ray said that he thought the old barbed-wire fence, which had been stretched along a tree line, was on the property line separating Tract 3 and Tract 4. Ray stated that in September or October 1986, he and his father Garland, along with a friend named Jeff McDermott, built the hog-wire fence just inside the old barbed-wire fence. Ray said that he was fourteen years old at the time and that he "really didn't know about the [Spears] survey." He stated that he and his father built the hog-wire fence because they wanted to raise and butcher hogs but that they had later used it for goats and cattle. Ray said that his Uncle Houston still owned Tract 3 when the hog-wire fence was built and that Houston did not complain about its location. He said that after Phillip bought Houston's land, Phillip did not complain until recently.

         Ray testified that Garland and Phillip owned cattle, which they ran together, and that occasionally one of the sick cows-his or Phillip's-would be put inside the hog-wire fence. He said that a corral had been built on Phillip's land in 2007 and that they had all used the corral in their cattle operation. He stated that Garland and Phillip stopped running cattle together around 2010. Ray testified that Garland lived in the farmhouse near the hog-wire fence until he died in 2012. Ray said that he currently has one cow that he is tending and two donkeys inside the hog-wire fence.

         According to Ray, he has kept the land on his side of the hog-wire fence clean, and he has treated it like his own. Ray said that he and Phillip have mowed up to each side of the fence and that he alone has maintained the fence. Ray testified that he thought his and Phillip's conduct showed that they had both acquiesced that the hog-wire fence is the actual line between their properties.

         Ray stated that he had seen white flags tied on his hog-wire fence and some plastic PVC poles nearby. He said that he removed these markers but that they later reappeared. He stated that he saw his cousin Mike on the property cutting bushes off the fence. He said that, when Mike had told him that a fence was going to be built on the property line, he told Mike that he was not moving the hog-wire fence. Ray said that he then received a letter from Phillip's attorney and heard from Phillip himself that he was going to build a fence on the property line. Ray said that he told Phillip that he could put up a fence as long as he did not touch the hog-wire fence.

         Amy Marie McJunkins was married to Kip for twenty-seven years until he died in April 2016. She said that she had spent "quite a bit of time" at the farm, that the hog-wire fence had "always been there, " and that she had not heard anyone complain about the location of the hog-wire fence.

          Ford McJunkins, Jr., testified that he thought Ray and Phillip used the old meandering fence as the dividing line between their properties and that the hog-wire fence encompassed less land than that. He stated that Ray and Garland raised hogs and goats in the old hog pen and brush hogged it in the spring. He said that after the hog-wire fence was built, Ray put cattle in the enclosure because it was easier to get them on the trailer to be taken to the sale barn. He said that he had seen Mike brush hogging on Phillip's side of the hog-wire fence. Ford, Jr., said that when Ford, Sr., Phillip, and Garland had cattle, those cattle were mixed together and that the whole family farm, from Tract 1 to Tract 5, was used in the cattle operation. He said that Phillip sold his cattle around 2010.

         Jeff McDermott recalled building the hog-wire fence with Ray and Garland around 1987. He said that Garland had maintained the land inside the fence and raised hogs. McDermott testified that both Garland and Ray had brush hogged within the hog-wire enclosure and had stocked the pond with catfish. He said that he was familiar with "where the pond and stuff was" and that "that" was always the property line. McDermott said that he had not seen Phillip around the farm.

         Jeff McJunkins, Houston's son, testified that he had always thought of the land inside the hog-wire fence as Garland's and that he thought the old meandering fence in the tree line was on the property line. He said that Ray had pigs and occasionally a cow inside the hog-wire fence and that Ray and Garland had maintained the fence. He said that he had never heard Phillip say that the hog-wire fence was in the wrong place or that it ought to be moved. He remembered that Phillip and Garland owned ...

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