Crum v. Siems

          APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 01DCV-14-114] HONORABLE DAVID G. HENRY, JUDGE.

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellants.

          PPGMR Law, PLLC, by: R. Scott Morgan and Micah L. Goodwin, for appellees.

          MIKE MURPHY, Judge.

         Appellants John Crum and his wife, Jane, appeal from the Arkansas County Circuit Court's order resolving a land dispute between the Crums and appellees Dorothy Siems and her son Richard Siems.^[1] The Crums and the Siemses own adjacent land; the Crums' eastern boundary and the Siemses' western boundary were in dispute. After the Crums installed an irrigation system that the Siemses thought encroached on their land, the Siemses filed a complaint seeking to enjoin the Crums from trespassing on their land; for quiet title; for restoration of the land to its proper state; for judgment compensating the Siemses for the loss of the use of their property; for the costs of surveying the property and relocating survey markers; and for civil and punitive damages. The Crums answered and counterclaimed, asserting that the line between their properties had been established by acquiescence or agreement, or alternatively by adverse possession. After a bench trial, the circuit court ruled in favor of the Siemses and denied all claims of boundary by acquiescence, boundary by agreement, and adverse possession. For the following reasons, we affirm.

         The Crums filed a timely notice of appeal, raising the following points: (1) the circuit court erred in not finding that the line of trees and the eastern edge of the turn-row established a boundary by acquiescence, ^[2] and (2) the circuit court erred in its alternative finding that the Crums did not acquire title to the property through adverse possession.

         Boundary-line cases are reviewed de novo. Durham v. McCone, 2018 Ark.App. 392, at 3, 555 S.W.3d 907, 909. However, our court will not reverse findings of fact unless they are clearly erroneous. Id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id. 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. Id. In reviewing a circuit court's findings of fact, we give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.

         Using these standards, we examine the facts presented to the circuit court. The parties have disputed this property line since 1974, but the first notable argument occurred in 1981 when the Siemses alleged that John Crum was bulldozing a line of trees between the parties' properties. The Siemses explained that they confronted John, and he abstained from further work along the tree line. John denied that this confrontation occurred or that he bulldozed the trees at all. Instead, he testified that there was a meeting in 1981 that resulted in the parties orally agreeing on a boundary line. According to John, the parties agreed that the line would be the tree line as extended to the north and south and that the agreement was memorialized by steel posts driven on the north and south ends of the line by the late Edward Siems^[3] and a steel rod driven into the ground by John on the north end next to the post Edward set.

         The Siemses deny that there was any agreement in 1981. To support their position, they introduced a handwritten document by Edward Siems that memorialized an agreement in October 1988. This document was not signed by John. John denies that there was ever an agreement in 1988.

         After years of conflict, in 2013, the Siemses had Delta Survey Company perform a survey of the property line. The surveyor did not find the posts that John testified were placed by Edward Siems in 1981 to evidence the agreement; nor did he find the steel rod John allegedly placed. However, after having been asked by John to return, and with a strong metal detector, the surveyor did eventually find a rebar on the north end of the line.

         Both parties also presented extensive testimony concerning a turn-row road, a line of trees, and a levee that all extended north and south and separated the properties. John asserted below that he made use of the turn-row to the exclusion of all others.^[4] Richard Siems testified that there had been times when he saw John grading the turn-row. John presented two witnesses that worked his farm dating back to 1980, and both testified that they believed the turn-row was located on the Crums' property because John mowed and maintained it. The turn-row is to the west side of the line of trees and runs parallel to the line of trees. The line of trees consists of three to four trees that do not extend the length of the property. The trees are located roughly midway between the north and south points of the boundary line. The Siemses' levee is located to the east of the trees and runs the length of the property.

         The Crums' first point on appeal is that the circuit court erred by not 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, it becomes the boundary by acquiescence." 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. 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, although it may not be. Id. A boundary by acquiescence is usually represented by a fence, a turn-row, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. Durham, 2018 Ark.App. 392, at 10, 555 S.W.3d at 912. Whether a boundary line by acquiescence exists is to be determined on the evidence in each individual case. Clark v. Casebier, 92 Ark.App. 472, 477, 215 S.W.3d 684, 686-87 (2005).

         The Crums assert that it was established at trial that since at least the 1970s, the line of trees roughly in the middle of the property and the eastern edge of the adjacent turn-row were accepted as the boundary line between the neighboring parties and that, accordingly, it constituted a boundary by acquiescence.

         We turn to Lammey v. Eckel,62 Ark.App. 208, 970 S.W.2d 307 (1998), and Clark,92 Ark.App. 472, 215 S.W.3d 684, for guidance. In Lammey, we held that evidence regarding the location of an alleged boundary line was insufficient to establish the existence of an oral boundary agreement or boundary by acquiescence because the points of the alleged boundary line were approximate, and the boundary was not conclusive. We explained that the appellant's evidence may have provided a general idea regarding the location of what they ...