Jennings v. Burford

958 S.W.2d 12, 60 Ark. App. 27, 1997 Ark. App. LEXIS 843
CourtCourt of Appeals of Arkansas
DecidedDecember 22, 1997
DocketCA 97-316
StatusPublished
Cited by57 cases

This text of 958 S.W.2d 12 (Jennings v. Burford) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jennings v. Burford, 958 S.W.2d 12, 60 Ark. App. 27, 1997 Ark. App. LEXIS 843 (Ark. Ct. App. 1997).

Opinion

Judith Rogers, Judge.

Appellants Austin Jennings and Lyndell Jennings, husband and wife, appeal the Columbia County Chancery Court’s denial of their petition to quiet title to land lying between forty acres that they own and an adjoining forty-acre tract owned by the appellees, Mr. and Mrs. Charles Burford. In its order denying appellants’ petition to quiet title, the chancery court determined that the boundary fine between the two forty-acre tracts had been established by acquiescence and was marked by a meandering fence that appellee Charles Burford had used to contain cattle on his land for at least twenty years. Appellants assert six allegations of error. We affirm as modified.

The two forty-acre tracts at issue are located north-south relative to each other. Appellants own the northern tract and appellees own the southern. Appellant Austin Jennings and appel-lee Charles Burford each obtained his respective tract from a common grantor, W.W. Burford. W.W. Burford was the father-in-law of appellant Austin Jennings, the father of appellant Lyndell Jennings, and the father of appellee Charles Burford. Appellant Austin Jennings purchased his forty-acre tract from W.W. Burford in June 1957. Appellee Charles Burford purchased his forty-acre tract from W.W. Burford, his father, in April 1961. Both tracts are comprised of farm land, pasture, and woodland. The dispute between the parties over the location of the boundary line between their land began in 1992 when appellee Charles Burford stopped the appellants from cutting timber on what he believed to be his land. The appellants filed their quiet tide action in August of 1992. The appellees answered and asserted that there was a boundary between the tracts by acquiescence, which was marked by a fence. A hearing was held on the appellants’ quiet title action in chancery court in May 1996.

First, appellants assert that the chancery court erred in finding that there was a boundary fine by acquiescence between the two forty-acre tracts that followed a meandering fence that appel-lee Charles Burford had used for at least twenty years to contain catde. Appellants contend that the chancery court erred in so finding because: (1) there was no evidence proving that the parties intended that the fence serve as a boundary line; (2) there was no evidence that a fence ran contiguously between the two forty-acre tracts; and (3) there was no evidence that there was a seven-year period during which the parties acquiesced in the fence as a boundary line.

The case-law principles that govern whether a boundary fine has been established by acquiescence are well settled. Whenever adjoining landowners tacitly accept a fence fine or other monument as the visible evidence of their dividing fine and thus apparendy consent to that fine, it becomes the boundary by acquiescence. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). A boundary fine 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 fine. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). The period of acquiescence need not last for a specific length of time, but it must be for “many years” or “a long period of time” sufficient to sustain the inference that there has been an agreement concerning the location of the boundary line. See Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W.2d 836 (1949). This period varies with the facts of each case, just as all circumstantial evidence does, unlike the seven years required to take land by adverse possession, which is a statute of limitations for commencement of an action to recover land adversely possessed. See Ark. Code Ann. 518-61-101(a) (1987). Moreover, establishment of a boundary line by acquiescence does not require adverse possession of the land by one party. See Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965). When the adjoining landowners occupy their respective premises up to the line they acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus acquiesced in is not the true boundary, although it may not be. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). A boundary line may be established by acquiescence whether or not preceded by a dispute or uncertainty as to the boundary line. Id. Where a boundary line by acquiescence can be inferred from other facts presented in a particular case, a fence line, whatever its condition or location, is merely the visible means by which the acquiesced boundary line is located. See Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981). The location of a boundary line is a question of fact, and we must affirm a chancery court’s location of a boundary line unless its finding is clearly against a preponderance of the evidence. Rabjohn v. Ashcraft, 252 Ark. at 571; Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990).

Steve Lee, appellee Charles Burford’s son-in-law, testified on behalf of the appellees. Mr. Lee testified that he was familiar with the land at issue and that he lived on part of the appellees’ land. He testified further that he helped maintain a barbed-wire fence between the appellants’ property and the appellees’ property. Mr. Lee testified further that the fence was enough to keep cows from going north onto the appellants’ property. Mr. Lee testified further that this barbed-wire fence was strung from posts and trees and that the fence traversed the length of the appellees’ forty-acre tract.

Appellee Charles Burford testified that his father sold the appellants their forty-acre tract in 1957 and that his father had sold an adjoining forty-acre tract to him in 1961. Mr. Burford testified that sometime in the 1960s he and appellant Austin Jennings had had a conversation about cutting timber near the fence line between their forty-acre tracts. Mr. Burford characterized this conversation as follows: “When he decided to cut his timber he wanted to know, he asked me did I know where the boundary line was between me and him? I said as far as I’m concerned, it’s the fence line. That’s what my dad always said. I said you cut on the north side, I’ll cut on the south side of the fence.” Mr. Bur-ford testified further that appellant Jennings did not cut any trees on the south side of the fence and that he (Burford) did not cut any trees on the north side of the fence. Mr. Burford testified further that since 1951, when he and his father purchased cattle, he had maintained the fence that he regarded as the boundary fine and that the fence had always been able to hold cattle on his side of the fence. He testified that he had kept the fence in repair to hold catde and that he had bushhogged a right of way approximately twenty feet wide. Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fritchie v. Hearne
2025 Ark. App. 276 (Court of Appeals of Arkansas, 2025)
Bonnie Monk v. Union County Industrial Board
2024 Ark. App. 285 (Court of Appeals of Arkansas, 2024)
Vincent Mitchell v. Theresa Mitchell
2023 Ark. App. 60 (Court of Appeals of Arkansas, 2023)
James S. Branscum & Colette R. Branscum v. John Nelson & Whitney Butts
2022 Ark. App. 354 (Court of Appeals of Arkansas, 2022)
Kelly Mullins v. Joel Helgren
2022 Ark. App. 3 (Court of Appeals of Arkansas, 2022)
Roberts v. Riege
2017 Ark. App. 408 (Court of Appeals of Arkansas, 2017)
Barton v. Brockinton
2017 Ark. App. 369 (Court of Appeals of Arkansas, 2017)
Cross v. Cross
2016 Ark. App. 327 (Court of Appeals of Arkansas, 2016)
Keating v. Mason
2013 Ark. App. 477 (Court of Appeals of Arkansas, 2013)
Washington v. Washington
425 S.W.3d 858 (Court of Appeals of Arkansas, 2013)
Parkerson v. Brown
379 S.W.3d 485 (Court of Appeals of Arkansas, 2010)
Wright v. Wright
377 S.W.3d 369 (Court of Appeals of Arkansas, 2010)
Elder Construction Co. v. Ivey Lane, LLC
370 S.W.3d 861 (Court of Appeals of Kentucky, 2010)
Heirs at Law of Butler v. Butler
345 S.W.3d 225 (Court of Appeals of Arkansas, 2009)
Mobley v. Evans
308 S.W.3d 165 (Court of Appeals of Arkansas, 2009)
Bilo v. El Dorado Broadcasting Co.
275 S.W.3d 660 (Court of Appeals of Arkansas, 2008)
Boyster v. Shoemake
272 S.W.3d 139 (Court of Appeals of Arkansas, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
958 S.W.2d 12, 60 Ark. App. 27, 1997 Ark. App. LEXIS 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-burford-arkctapp-1997.