                              Cite as 2014 Ark. App. 712



               ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                    No. CV-14-280


                                               Opinion Delivered   December 17, 2014
 RICKY TEAGUE and
 NIKI TEAGUE                          APPEAL FROM THE WASHINGTON
 Husband and Wife                     COUNTY CIRCUIT COURT
                           APPELLANTS [NO. CV2012-132-2]

 V.                                            HONORABLE DOUG
                                               MARTIN, JUDGE
 JOE CANFIELD and
 ELSIE CANFIELD,                               AFFIRMED
 Husband and Wife
                              APPELLEES

                          BRANDON J. HARRISON, Judge

      This is a property-boundary case. Joe and Elsie Canfield filed a petition to quiet

title that asked the circuit court to determine the common boundary between their

property and property that Ricky and Niki Teague own. The Teagues counterclaimed

and alleged that they own the disputed land area based upon boundary by acquiescence

and adverse possession.    The Teagues also claimed that they had an easement by

prescription in an access road.   After a bench trial, the circuit court found that the

Canfields owned the disputed area of land and that the Teagues did not have an easement

by prescription in the access road. The Teagues moved for a new trial pursuant to Rule

59(a)(6) of the Arkansas Rules of Civil Procedure. The court denied the motion. The




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Teagues ask us to reverse the court’s decision in favor of the Canfields. We decline to do

so and affirm the circuit court.

                                                   I.

         Two areas of property are in dispute—a “northeast corner triangle” and an “access

road.”    The triangular section is a nearly two-acre area of land where the Canfield

boundary juts up north from its normally straight easterly direction and forms a triangular

shape as a result. An access road allowing the Teagues ingress and egress to a nearby

county road is located in the triangular area. The northeast corner triangle has been a part

of the Canfields’ property since 1889 and has been excepted from the Teague title for the

same period of time.

         Around 1986, Ricky Teague began repairing a fence that would enclose his entire

property.    According to Joe Canfield’s testimony at trial, the Teagues and Canfields

understood that the fence would run “straighter so that it would be less expensive,” and it

would not “go around the northeast corner triangle.” Teague used a bulldozer to clear a

straight-line path across the base of the northeast corner triangle; then he enclosed the land

with a fence. Joe Canfield insisted that a gate be installed in the new fence so he could

access his property on the other side; the Teagues included a gate. At trial, the Canfields

testified that they accessed the northeast corner triangle through the fence that the

Teagues had installed and did so on numerous occasions. The Canfields also stated that

they continued to brush hog the area, pick wild blackberries that grew there, and simply

enjoy the triangular-shaped area for its habitat and wildlife.




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       In 2011, the Canfields had their property surveyed. The survey returned the same

property descriptions that were contained in both parties’ deeds. Joe Canfield intended to

meet with the Teagues to talk about the survey results because he was concerned with his

property rights over the northeast triangle. After a number of failed attempts to meet with

Ricky Teague, Canfield filed the petition to quiet title that started this case and ended

with title being quieted in the Canfields.

                                               II.

       After the circuit court entered judgment on May 22, the Teagues moved for a new

trial. The motion was filed on June 3, and the court denied the motion by written order

on June 20. The Teagues also filed a motion to extend the time to file a notice of appeal,

which the circuit court granted. The court ruled that that the Teagues could only appeal

from the order denying the motion for new trial. Regarding the Teagues’ challenge to

the court’s decision to deny their Rule 59 motion, when evaluating a motion for new trial

filed under Rule 59(a)(6), the circuit court “must determine whether the verdict or

decision is clearly contrary to the preponderance of the evidence. In examining that

motion, the trial court is permitted to weigh the evidence. On appeal from the denial of

[this] . . . motion[ ], the appellate court affirms the verdict if it is supported by substantial

evidence.” Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 739, 120 S.W.3d 61, 66–67

(2003) (internal citations omitted). Substantial evidence is evidence of sufficient force and

character to compel a conclusion one way or the other with reasonable certainty. Depew

v. Jackson, 330 Ark. 733, 735, 957 S.W.2d 177, 178 (1997). In examining whether

substantial evidence exists, the verdict is given “the benefit of all reasonable inferences

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permissible in accordance with the proof.” Id., 957 S.W.2d at 178. In reviewing a circuit

court’s findings of fact, we give due deference to the court’s superior position to

determine the credibility of witnesses and the weight their testimony should receive. Dye

v. Anderson Tully Co., 2011 Ark. App. 503, at 4, 385 S.W.3d 342, 345–46.

       For the reasons discussed in more detail below, we affirm the circuit court’s denial

of the motion for new trial because the judgment is supported by substantial evidence.

                                            III.

       The parties disagree on whether this court has jurisdiction to review the denial of

the motion for a new trial only, or whether it may also review the merits of the

underlying judgment. The Canfields argue that the Teagues could only appeal from the

denial of the Rule 59 motion and not the underlying judgment. The Teagues argue that

they may appeal the denial of their motion and the underlying judgment. We agree with

the Teagues. Arkansas Rules of Appellate Procedure―Civil 2(b) and 3(a) (2014) provide

that “an appeal from an order disposing of a postjudgment motion under Rule 4(b)(1)

brings up for review the judgment . . . as well as the order appealed from.” We have

jurisdiction to review the denial of the Rule 59(a)(6) motion and the judgment that led to

that postjudgment motion. We now turn to the judgment.

                A. Boundary by Acquiescence and the Northeast Triangle

       The Teagues’ counterclaim raised the issue of whether the Canfields had, by

acquiescence, established the property boundary when the Teagues put up the fence in

1986. The gist of this claim is that after the Teagues enclosed the northeast corner triangle

with the 1986 fence, the Canfields tacitly agreed to it functioning as the new boundary

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between their properties. The circuit court heard the evidence for and against this claim

and rejected the Teagues’ argument.

       We review quiet-title and boundary-line cases de novo. Stadler v. Warren, 2012

Ark. App. 65, 389 S.W.3d 5. We will not reverse findings of fact, however, unless they

are clearly erroneous. A finding is clearly erroneous when an appellate court reviews the

evidence and is left with a definite and firm conviction that a mistake has been made.

Acuna v. Watkins, 2012 Ark. App. 564, 423 S.W.3d 670 (2012).

       A boundary by acquiescence may arise when adjoining landowners tacitly accept a

fence, or other monument, as the visible evidence of a property boundary and apparently

consent to it. Myers v. Yingling, 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008). A

boundary by acquiescence that is inferred from landowners’ conduct over many years can

imply the existence of an agreement about the location of the boundary line. Id. This

boundary may exist without prior dispute. Harris v. Robertson, 306 Ark. 258, 813 S.W.2d

252 (1991). Neither the mere existence of a fence, nor one party’s subjective belief that a

fence is a boundary line will sustain a finding of acquiescence. An express recognition or

agreement between the parties is not necessary. Boyster v. Shoemake, 101 Ark. App. 148,

152, 272 S.W.3d 139, 143 (2008). Tacit acceptance may suffice if a mutual recognition of

the boundary line can be inferred from the parties’ conduct over a period of years.

Thurkill v. Wood, 2010 Ark. App. 319, at 3–4, 374 S.W.3d 790, 793.

       The Teagues argue that the Canfields tacitly agreed that the boundary line between

the families’ property was the fence that was built in 1986 and that the circuit court clearly

erred when it required that the boundary line be “accepted or recognized” by the

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Canfields. The Teagues correctly state that an express acceptance of the boundary is

unnecessary, but this point overlooks testimony that the circuit court was entitled to

credit. Specifically, the circuit court credited Joe Canfield’s testimony that his family

never “accept[ed] this fence line as a visible evidence of their dividing line” and continued

to use the property as owners, even though they were required to cross a fence to reach it.

The circuit court expressly found that the Canfields’ conduct did not imply the existence

of any agreement, tacit or otherwise, that the 1986 fence line was a proper boundary line.

The court’s decision was not clearly erroneous, so we affirm.

                     B. Adverse Possession of the Northeast Triangle

       The Teagues argue that the circuit court erred by ruling that they did not adversely

possess the northeast corner property. We disagree.

       Adverse possession is governed by common law and a statute—Arkansas Code

Annotated section 18-11-106 (Supp. 2013). Under the common law, a party must prove

that he or she continuously possessed the claimed property for more than seven years and

that the possession was visible, notorious, distinct, exclusive, hostile, and maintained with

the intent to hold it against the true owner. Thompson v. Fischer, 364 Ark. 380, 200

S.W.3d 622 (2005). Additional requirements were enacted by the General Assembly in

1995, but they do not concern us here given that the Teagues claim that they began

adversely possessing part of the northeast corner triangle in 1986; this means an adverse-

possession claim would have vested, if at all, before the additional statutory requirements

were enacted. Schrader v. Schrader, 81 Ark. App. 343, 101 S.W.3d 873 (2003). So we, like

the parties and the circuit court, will only apply the common law.

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       There was conflicting testimony at trial regarding how much control the Canfields

exercised over the northeast corner. The circuit court credited the Canfields’ testimony

that they maintained control over the northeast corner, used the gate to access it, enjoyed

its habitat for wildlife, and picked wild blackberries in the area. The circuit court could

have found, at a minimum, that the Teagues failed to establish that they exercised

exclusive control over the property as against the true owner or record title holder. See

Utley v. Ruff, 255 Ark. 824, 826, 502 S.W.2d 629, 632 (1973). The circuit court did not

clearly err when it rejected the Teagues’ adverse-possession claim.

                    C. Easement by Prescription and the Access Road

       The Teagues argued at trial that they obtained an easement by prescription in the

access road. We disagree.

       “Use of property may ripen into an easement by prescription, even if the initial

usage began permissively, if it is shown that the usage continued openly for the statutory

period after the landowner knew that it was being used adversely, or under such

circumstances that it would be presumed that the landowner knew it was adverse to his

own interest.” Baysinger v. Biggers, 100 Ark. App. 109, 111, 265 S.W.3d 144, 145 (2007).

To establish an easement by prescription, the Teagues must establish an adverse use of a

passageway, for a period of seven years, and under a claim of right. Neyland v. Hunter, 282

Ark. 323, 668 S.W.2d 530 (1984). A prescriptive-easement claim does not, however,

require exclusive use. Id.

       Here, the Teagues rely on The Willows, LLC v. Bogy, 2013 Ark. App. 59, where

this court upheld the circuit court’s finding of an easement by prescription. But this case

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is materially different. This case turned on the court’s credibility determinations, and we

routinely defer “to the superior position of the trial court to determine the credibility of

the witnesses and the weight to be accorded their testimony . . . [and] will not overturn

the circuit court’s credibility determination on appeal.” Id. at 4. At trial, Joe Canfield

testified that he gave Ricky Teague permission to use the access road shortly after the

Teagues bought the property from the original owners.           The circuit court credited

Canfield’s testimony and ultimately concluded that the Teagues, “having proved only that

the use of the roadway had existed over long periods of time, failed to meet their burden

of proving a right to a prescriptive easement.” We hold that the court did not clearly err

in rejecting the Teagues’ prescriptive-easement claim.

       Affirmed.

       WALMSLEY and GRUBER, JJ., agree.

       Taylor Law Partners, LLP, by: Stevan E. Vowell, for appellants.

       Daily & Woods, P.L.L.C., by: Jerry L. Canfield, for appellees.




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