                                Cite   as   2013   Ark. App. 484

                   ARKANSAS COURT OF APPBALS
                                             DIVISION IV
                                             No. CV-13-29


                                                       opinion Delivered Septembet 71,, 20'13


                                                       APPEAL FROM THE
CECIL JAMES REYI\OLDS and                              INDEPENDENCE COUNTY CIRCUIT
DONNA REYI\OLDS, His \Wife; and                        COURT
CECILJ. RE,YNOLDS, SR.                                 [No. CV-2010-300]
                       APPELT,\NTS
                                                       HONORABLE ADAM I{4zu<EY,
V.                                                     JUDGE

GFM, LLC                                               AFFIRMED IN PART; REVERSED IN
                                   APPELLEE             PART



                                  LARRY D. VAUGHT, Judge

         In this boundary-line dispute, appellants Cecil James Reynolds, Donna Reynolds, and

Cecil   J. Reynolds, Sr. (collectively "the Reynoldses"), appeal the dectee enteted by the
Independence County Circuit Court, finding in favor of appellee GFM, LLC (GF1\0.r The trial

court found that (1) the Reynoldses failed to prove that a fence line on GFM's property was a

boundary by acquiescence, and (2) GFM was entided to a ptesctiptive easement in a road on the

Reynoldses' propertF. On appeal, the Reynoldses challenge both findings, contending that the

trial court clearly erted in denying their claim for    a   bounduty by acquiescence and in awatding

GFM a prescriptive easement in the road on their property. We affirm the former finding;

howevet, we feverse the latter.




         lMembets of the Pteston Gtace family are the principal officets of GFM.
       GFM and the Reynoldses are adjoining landownets in the Cave Cteek community located

in Independence County, Arkansas. Pertinent to this appeal is ptoperty that GFM owns in

Section 10, Township 14 North, Range        6   !7est. Due south of this property is an eighty-acre ttact

of land owned by the Reynoldses, which is located in Section            15,   Township 14 North, Range

6 West.    North of the Reynoldses'boundary line, within GFM's property, there is a fence. The

area north    of the Revnoldses' boundalv line and south of GFM's fslsg-ths properw in

dispute-is approximately eighty to one-hundted acres.

          GFM initiated this   case   in Novemb er   201.7   by fiting a complaint to quiet tide and fot   a


temporary restraining order against the Reynoldses, alleging that they, without GFM's

permission, cut timber and built fences and toads on its ptoperty and blocked its access to its

property. In response, the Reynoldses filed an answer and countetclaim alleging that the proper

boundary line between the parties was the fence line on GFM's ptoperty. The Reynoldses alleged

that the fence was the boundary by acquiescence, and they sought legal tide to the ProPerty in

dispute.

          At trial, GFM   ptesented the testimony        of Patrick Lemley, a licensed surveyor, who

testified that   in 2009 a member of the Grace family            asked him to locate the boundary line


between the parties' propety. Lemley concluded that the boundary line was the southetn

boundary line of Section       10-not the fence on GFM's property. Lemley also testified           that he


found no acts of possession by the Reynoldses in the disputed ptoperty. Howevet, he observed

deer stands on the disputed properry, which he believed belonged to a hunting club that GFM

had on its proPerry.



                                                      -2-
      JimmyLeeDownstestifiedthathehadlivedintheCaveCreekcommunityfotthity-
                                                                                           he
                                                  dated back to the 1980s' Downs said that
seven years and that the fence on GFM',s Pfoperty

had been a membet of the GFM hunting club
                                          for seven to ten years, and he confitmed the

                                               pfopefty' Fot years prior to the Reynoldses'
existence of hunting-club deer stands on GFM's

                                               he and other hunters used the road that tan
ownership of the Pfopefty, according to Downs,
                                                                                      since
                                              hunting club' Howevet' Downs added that
through the Revnoldses'propetty to access the

                                            road had been closed off.
the Reynoldses have owned the ptoperty, the

                                                   explained that the hunting club, owned
       The final GFM witness was Kendall Smith. He

                                                       He testified that on a fecent visit' he
by the Grace family, managed the ptoperty in dispute'2
                                                     property and was stopped and questioned
uaveled on the road that ran through the Reynoldses'

 by Donna ReYnolds'
                                                                    resident of the cave cteek
        on   behalf of the Reynoldse s, L,Itty lrilkes, a life-Iong

                                          kept cattle on their properry for fory to forry-five
                                                                                               years
 community, testified that the Reynoldses

                                            from time to time. He added that the fence preexisted
 and that the Reynordses repaired the fence

                                           that he did not know        if the fence was put up by
 the Reynoldses' purchase of the PfoPerty,

                                    sides of the fence, and that he did not
                                                                            know if the fence
 someone who owned the land on both

                                                   he had driven on the road through the
 line was the boundary rine. wilkes arso said that

  Reynoldses' ProPertY maflY times'




                                                                                    ouC' the
         2smith said the hunting club had an annual work day that included "cutting
                                           -o...,
                                                  and building deet stands, along with
                                                                                       othet
  roads, "cutting out' ice damage on
                                       the
  maintenance.
                                                  -3-
          Boyd Qualls testified that he had lived in the Cave Creek community for t'wenty-six years

and currently lived iust west        of the Reynoldses.      Qualls said that he did not have an

understanding of the property lines between the parties; however, he said he was familiar with

the road on the Reynoldses' property. He said that the road had been there fifty or more years

and that long ago it was tegularly used when nearby property was being mined. He added that

onl-,, the Re.znoldses and
"^.^J"^.-..-J..-.-"-
                             theit ftiends r,rse the toad- now-

          CecilJames Reynolds flames) testified that he leased his property in 1988 and purchased

it in   2003. \X/hile he agreed that his deed conveyed to    him only an eighty-acre tract, it was his

belief that his tact included the property in dispute. He said that over the yeats he used the

properry sourh of the fence3 and that no one has ever questioned his use of the Propefiy. He

added that the road through his property runs very close to his home, and that since 2003, only

his family and his friends have used it. James's wife Donna Reynolds concufted, stating that only

their friends and family use thefu road.

          At the conclusion of the tdal, the court asked counsel whether there was any dispute that,

based on the Reynoldses' deed and the 2009 survey, GFM was the recotd tide holder of the

property at issue. Counsel for the Reynoldses conceded that there was no dispute on that mattet,

to which the trial court stated, "the burden then, of course, . . . falls upon the fReynoldses] to

present their claim [for bound ary by acquiescence]."n Thereafter, the trial court quieted tide in


                                                                              fence, installed deer
        James testified that he ran catt)e,built new fences, repaired the old
stands, and cleated the ptoperty in dispute.

       'Also during this colloquy, counsel for the Reynoldses conceded thatwhile they asserted
adverse possession as an affirmative defense in their aflswer, they could not prove adverse
possession, and, as such, abandoned that defense, relying solely on boundary by acquiescence.

                                                    -4-
the disputed property in accotdance with the 2009 survey; found that the Reynoldses failed in

meeting their burden of proving that the fence on GFM's propeffy was a boundary line by

acquiescence; and found that the road across the Reynoldses' tract was subject to a prescriptive

easement       in favor of GFM, its successors,    assigns, and invitees,   but not the public. After the

decree detailing these findings was entered by the trial court, the Reynoldses timely fi.led a notice

of   appeal.

         The Reynoldses' first point on appeal is that the trial court cleariy ered in finding that

the fence did not constitute      a   boundary by acquiescence. A fence, by acquiescence, may become

the accepted boundary even though it is contrary to the survey bne. Strotber         u.   Mitchell,2011 Atk.

App.224,             1.7,382 S.!7.3d741,752. When adjoining landowners occupy their respective
                ^t
premises up to the line they mutually recognize and acquiesce in as the boundary                  fot a long

period of time, they and their grantees are ptecluded from claiming that the boundary thus

recognized and acquiesced in is not the true one, although it may not be. 1d.,382 S.W.3d at7 52.

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 hne. 1d.,382

S.W.3d                   is the agreement and acquiescence, not the fence itself, that contols. Id. at
          ^t752.It
t7-1,8,382       S.W.3   d at752. The intention of the parties and the significance they attach to the

fence, rather than its location or condition, is what is to be considered . Id. at 78, 382 S.W.3d at

752. Neither a prior dispute about the boundary line nor adverse usage up to a fence is required

to establish     a   boundary by acquiescence. 1d.,382 S.W.3d atl52.




                                                     -5-
       We have noted that the mere existence of a fence, without evjdence of rnutual

recognition, cannot sustain a finding of such a boundary. 1d.,382 S.!7.3d at752. Also, the fact

that a landowner puts a fence inside his boundary line does flot mean that he is acquiescing in

the fence as the boundary, theteby losing tide to the strip on the other side. 1/., 382 S.W.3d at

T|Z.Thatoccurs only if the neighbor takes possession and holds it fot the requisite number of

vears. 1d..382 S.!7.3d   at752-53.

       Finally, because the locatio n   of aboundary     is a disputed question of fact, we will affirm

unless the trial court's finding is cleatly against the pteponderance of the evidence' Id-,382

S.W.3d   atl53.A findingis    clearly erroneous when, although there is evidence to supportit, the

reviewing court on the entire evidence is left with a definite conviction tha;t a mistake was

committed.Id. at 18-19, 382 S.W.3d                Whether   a   boundary line by acquiescence exists is
                                         ^t753.
to be determined from the evidence in each individual case.Id. at1.9,382 S.!7.3d
                                                                                           ^t753-
         In the case at bar, the trial court found that the Reynoldses failed to prove their claim for

boundaryby acquiescence. The court specifically stated atthe conclusion of the trial thatto meet

their burden of proof, the Reynoldses would have to prove that the conduct, beliefs, and

intentions   of bothlandowners   established a tacit agreement that the fence line was the boundary

line. However, in this case, as found by the triai coutt, thete was an absence of this type of

evidence from the perspective of GFM ot its predecessors. No witness offered evidence that

GFM ot its predecessors believed or intended the fence to be the boundary line. And while each

of the Reynoldses'witnesses testified that theywete familiarwith the fence line, had been on the

property in dispute, andr.rray have thought that the fence line was the boundary line, none were



                                                   -6-
certain where the boundary line benveen the parties' ptopetty was and none testified about

GFM's or its predecessors' tacit agreement or recognition that the fence line was the boundary

line.

          Notably,James Reynolds's testimony ptovided only half of the requirements needed to

establish boundary by acquiescence. He stated that he and his family had alvrays considered the

fence iine   a.s   the tror-rndasr line, tha.t they   r-rsecl   the disputed propertv for forq, years, and that they


maintained the disputed property. However, the mere subiective belief that a' fence is the

boundary line is insufficient to establish            a   boundary bet'ween two propeties- Boltsteru. Shoemake,

101     tuk. App. 148, 1,52,212 S.!f.3d 1.39,'143 (2008). James did not offer any evidence of

GFM's mutual recognition of the fence as the boundary. The trial court stated, "ffames

Reynolds] was veq/ frank in his testimony, he said . . . 'I always thought that [rny ptoperry]
                                                                                               went


up to the fence line . . . .'But he never really came out and said anything about some sort of
                                                                                               an


agreement either implicitly            or explicitly with any other landowner that would give you

acquiescence."

          Moreover, as pointed out by the uial court, thete was evidence of GFM's conduct that

                                                                                        testified that
 established that it did not believe the fence was the boundary line. Sevetal witnesses

 south of the fence ]ine, there were deer stands that wete maintained by GFM.
                                                                              Also, there was

                                                                      (at least annually) the
 evidence that the hunting club, owned by GFM, managed and maintained

 properry south of the fence.




                                                                  -7-
         Because there was an absence of testimony showing that GFM considered the fence to

be the property line and there was evidence of GFM's conduct to the contralT, we hold that the

tdal court did not cleady              er in refusing to find the fence was the boundary by acquiescence.

         The Reynoldses' next argument is that the ffial coutt cleady ered in finding that GFM

was entided to a prescriptive easement in the Reynoldses'toad. The following summarizes our

laur nh nreqctinfirre eacernenfs'
        r-*----r

                         A prescriptive
                                easement may be gained by one not in fee possession of the land
         by operation of law in a manrrer similar to adverse possession. In Arkansas, it is generaliy
         required that one asseting an easement by ptescdption show by a preponderance of the
         evidence that one's use has been adverse to the true owner and under a claim of right fot
         the statutory period. This court has said that the statutory period of seven years for
         adverse possession applies to prescriptive easements.

                 Overt activity on the patt of the user is necessary to make it clear to the owner
         of the propetty that an advetse use and claim are being exerted. Mere permissive use of
         an easement cannot tipen into an adverse claim without clear action, which places the
         ownet on notice. Some circumstance or actin addition to, orin connecLion with, the use
         which indicates that the use was not merely permissive is required to establish a right by
         prescription. The determination of whether a use is adverse or permissive is a facttal
         question, and formet decisions are :,aely controlling on this factual issue. The plaintiff
         bears the burden of showing by a preponderance of the evidence that there has been
         adverse, not permissive, use of the land in question

             't
lY/illows,        .t C   u.   Bogl,201,3   A*.   App. 59, at 3 (citing   Roberts u. Jackson,2011   Ark. App. 335, 384

s.vr.3d 28).

         \We       teview cases that traditionally sound in equity de novo on the recotd, but we will not

reverse a finding of fact by the circuit court unless it is clearly erroneous. Acuna u. IWatkins,2012

Ark. App. 564, at 6,                                        A finding is cleady erroneous when, although there
                                  -S.W.3d -,           -.
is evidence to support it, the reviewing court on the entire evidence is left with a definite and

firm conviction that a mistake has been comrnitted . Id.,                        S.W.3d at            reviewing       tfl^l
                                                                                                                  ^
                                                                            -                -.In
                                                               -8-
court's findings, we give due deference to the tdal court's superiot position to determine the

credibility of the witnesses and the weight to be accorded to their testimoty. Id.                           6-7,
                                                                                                        ^t
                                                                                                                    -
S.!7.3d
          ^t
             _.    Disputed facts and determinations of witness credibility Newithin the province

of the fact-finder . Id.   at7   ,                           is our duty to revetse      if our own review of the
                                                ^t
                                     -S.!7.3d        -.It
record is in marked disagreement with the trial court's findings. Id.,                             at
                                                                                       -S.W.3d          -.
          In the case at bar, the trial court found that the Reynoldses' road had

          been used by the community for a long, long time, way befote-well, it's been used by
          the Reynolds, in fact, and [their predecessots]. It's been used so long that there is a
          prescriptive easement across it. The fact that they bought it, that's a switch in
          landowners, it's been used as a road long-probably even before [the Reynoldses'
          predecessors] owned it. So as fas as I'm concetned, there is a right-of-way actoss the
          toad.

The Reynoldses argue that the trial court's finding on this issue was cleat erot because there was

no evidence in the recotd that GFM, ot its ptedecessors, used the toad adversely for seYen years.

'We            No witness testified that GFM used the road in any fashion, much                less adversely and
      agree.

overtly, for seven years. And while every witness                      tirLa.l   testified that they had used the
                                                                  ^t
Reynoldses' road, none testified that they used it in a manner that was adverse or hostile to the

ownership rights of the Reynoldses. To the contary, there was ample evidence of permissive

use of the Reynoldses' road.          According to Quails, Downs, andJames and Donna Reynolds, since

2003, only the Reynoldses and those                  with their permission had used the toad. This                  was


coroborated by evidence that when Smith and Lemley recently traveled on the Reynoldses'

road, their use of the toad was interrupted by Donna and James Reynolds.

          \7hile the Reynoldses'road may have been used often in the past, there is no evidence

that that use was anything other than permissive. In tecent yeats, the evidence ptesented was that


                                                            -9-
                                  Cite   as   2013 Ark. App. 484

only the Reynoldses and their friends used the road. There is a lack of evidence that for seven

years GFM adversely used the road. Therefote, we hold that the trial court cleady ered in

avzarding GFM a prescriptive easernent in the Reynoldses'road, and we reverse on that issue.

       Affirmed   ir   prrq tevetsed in prrt.

       lTHrreAKEn and HxsoN,JJ.,              agree.

     Bistow E Richardson, PLLC,by: Melissa B. Richardson, for appellants.

     Blair & Stroud,by: Robert D. Stroud, for appellee.




                                                       -10-
