Cite as 2021 Ark. App. 120 ARKANSAS COURT OF APPEALS Elizabeth Perry I attest to the accuracy and DIVISION IV integrity of this document No. CV-19-931 2023.06.22 15:14:24 -05'00' 2023.001.20174 Opinion Delivered: March 10, 2021
MARK WAGGONER APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT V. [NO. 43CV-17-534]
DANIEL ALFORD AND JENNIFER HONORABLE SANDY HUCKABEE, ALFORD JUDGE APPELLEES AFFIRMED
MIKE MURPHY, Judge
This matter concerns the ownership of land (.828 acres) that adjoins the eastern
boundary of appellant Mark Waggoner’s land to the western boundary of land owned by
appellees Jennifer and Daniel Alford. Waggoner filed suit seeking to eject the Alfords from
the disputed property and to remove all encroaching structures, including the Alfords’
house, which was partially constructed. The Alfords counterclaimed asserting that they are
the owners of the disputed property by adverse possession or, alternatively, boundary by
acquiescence. After a bench trial, the Lonoke County Circuit Court entered an order
denying Waggoner’s claim for ejectment and quieting title in the disputed property to the
Alfords. For the following reasons, we affirm.
The Alfords purchased land adjacent to Waggoner’s land, built a house, and moved
in in July 2008. Before purchasing the land, the Alfords walked the land and recalled a fence
running from north to south. The Alfords had a survey completed in July 2008 showing that their house was twenty-seven feet from the property line. A May 2017 survey
commissioned by Waggoner in contemplation of this suit, however, revealed that the Alford
residence encroached at least thirty-two to thirty-three feet onto Waggoner’s property. A
survey completed in October 2017 on behalf of the Alfords made a similar finding.
The circuit court conducted a bench trial in August 2019. Waggoner testified that
he has lived on his land since the 1990s. He explained that he raises horses and that he rolled
wire next to his trees on his property to keep the horses from injuring themselves in the
wooded area on the eastern boundary of his property. He testified that he never intended
the wire to act as a boundary line because he knew his property line extended beyond where
he placed the wire. He testified that the Alfords’ house and their playground equipment had
been on his property for nine or ten years and that he has never seen them maintain the
disputed property. He said that he has maintained the property by moving big rocks and
picking up limbs, which he does two to three times a year. He explained there is no barrier
between his property line and the Alfords’. Waggoner testified that in 2015 he sent a letter
to the Alfords asking them to stop cutting trees on his property.
On cross-examination, Waggoner acknowledged that the Alfords’ survey identified
the western boundary as “fence line (existing woven wire, poor condition)” but that he
believed the survey was incorrect because there is not a fence behind their house. He noted
that the wire he used to contain his horses had been in use for only two to three years.
Waggoner testified that he spoke several times with the Alfords about the disputed property.
He explained that he first raised the issue before the house was completed, sometime before
2008. He then corrected his earlier testimony that he sent the Alfords a letter asking them
2 to stop cutting trees on his property sometime between 2016 and 2017, not in 2015. He
testified about one other time within the past ten years when he explained to them that he
knew they were over the property line.
Steven Beadle testified that he conducted a survey for Mark Waggoner on May 5,
2017. He testified that the Alfords’ lot is mostly wooded except for the area right around
the house and that Waggoner’s lot is also hilly and wooded. He testified that he did not
notice any sort of wire to the west of the residence. He explained that the corner of the
residence is 32.7 feet across the property line and that the playground equipment is 38.9 feet
from the corner of the house. He stated that west of the playground equipment is wooded.
Lastly, he testified that he did not observe any other survey markers or flags while
conducting the survey.
Jay O’Neal testified that he is a homebuilder and developer and knows Waggoner’s
property well. He testified that the plot plan that the Alfords presented to the city to apply
for their building permit showed that the house would be twenty-seven feet from the
property line but that the house did not end up being built there. When asked why he
thought that happened, he responded, “[S]omeone didn’t do their job is all I can tell you.”
On cross-examination, he testified that he and Waggoner had plans to subdivide his property
and sell it. He said he had no knowledge of the Alfords doing anything to the property to
maintain it and that he has seen Waggoner mow the area one time.
Jennifer Alford testified that she has lived at her current residence since July 2008—
eleven years. She testified that before buying their land, she and her husband walked the
property and remembered the wire fence line being present. She testified that Waggoner
3 approached her three to six months after moving in. She explained they walked over to the
disputed property and Waggoner dug around and picked up a metal pin. She testified that
he came back about a year later, and they had a similar interaction. After that, Alford did
not hear from him again until 2017. She testified to the maintenance and upkeep of the
disputed property explaining that she and her husband take care of it by blowing leaves,
pulling rocks, and killing the weeds. Alford testified that she would do this maintenance all
the way to the fence line because she believed the fence to be the property line. She said
that she only ever saw Waggoner on the other side of the fence.
Regarding the wire fence, Alford testified that she and her husband never asked for
permission to be on any part of the disputed property because they assumed it was theirs.
She said she never saw “no trespassing” signs posted, so they just always honored the fence
as the boundary. Alford explained the fence is a little ragged and beat up and that it has
grown into some of the trees but that it is visible and extends the entire length of the .828
acres in dispute. Daniel Alford then testified, and his testimony mirrored that of his wife.
Heather Hartsell, the Alfords’ neighbor, testified that she has seen the Alfords
cleaning up around the side of their house and behind the house and that she has never seen
anyone else on the disputed property.
On August 16, 2019, the circuit court entered a written order finding that the Alfords
had proved title to the disputed property and that Waggoner had not proved that he was
entitled to have them ejected from the property. Waggoner now appeals from this order.
Boundary-line cases are reviewed de novo. Smith v. Bowser, 2020 Ark. App. 425, at
5–6. This court will not reverse findings of fact unless they are clearly erroneous. Id. A
4 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 made. 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.
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Cite as 2021 Ark. App. 120 ARKANSAS COURT OF APPEALS Elizabeth Perry I attest to the accuracy and DIVISION IV integrity of this document No. CV-19-931 2023.06.22 15:14:24 -05'00' 2023.001.20174 Opinion Delivered: March 10, 2021
MARK WAGGONER APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT V. [NO. 43CV-17-534]
DANIEL ALFORD AND JENNIFER HONORABLE SANDY HUCKABEE, ALFORD JUDGE APPELLEES AFFIRMED
MIKE MURPHY, Judge
This matter concerns the ownership of land (.828 acres) that adjoins the eastern
boundary of appellant Mark Waggoner’s land to the western boundary of land owned by
appellees Jennifer and Daniel Alford. Waggoner filed suit seeking to eject the Alfords from
the disputed property and to remove all encroaching structures, including the Alfords’
house, which was partially constructed. The Alfords counterclaimed asserting that they are
the owners of the disputed property by adverse possession or, alternatively, boundary by
acquiescence. After a bench trial, the Lonoke County Circuit Court entered an order
denying Waggoner’s claim for ejectment and quieting title in the disputed property to the
Alfords. For the following reasons, we affirm.
The Alfords purchased land adjacent to Waggoner’s land, built a house, and moved
in in July 2008. Before purchasing the land, the Alfords walked the land and recalled a fence
running from north to south. The Alfords had a survey completed in July 2008 showing that their house was twenty-seven feet from the property line. A May 2017 survey
commissioned by Waggoner in contemplation of this suit, however, revealed that the Alford
residence encroached at least thirty-two to thirty-three feet onto Waggoner’s property. A
survey completed in October 2017 on behalf of the Alfords made a similar finding.
The circuit court conducted a bench trial in August 2019. Waggoner testified that
he has lived on his land since the 1990s. He explained that he raises horses and that he rolled
wire next to his trees on his property to keep the horses from injuring themselves in the
wooded area on the eastern boundary of his property. He testified that he never intended
the wire to act as a boundary line because he knew his property line extended beyond where
he placed the wire. He testified that the Alfords’ house and their playground equipment had
been on his property for nine or ten years and that he has never seen them maintain the
disputed property. He said that he has maintained the property by moving big rocks and
picking up limbs, which he does two to three times a year. He explained there is no barrier
between his property line and the Alfords’. Waggoner testified that in 2015 he sent a letter
to the Alfords asking them to stop cutting trees on his property.
On cross-examination, Waggoner acknowledged that the Alfords’ survey identified
the western boundary as “fence line (existing woven wire, poor condition)” but that he
believed the survey was incorrect because there is not a fence behind their house. He noted
that the wire he used to contain his horses had been in use for only two to three years.
Waggoner testified that he spoke several times with the Alfords about the disputed property.
He explained that he first raised the issue before the house was completed, sometime before
2008. He then corrected his earlier testimony that he sent the Alfords a letter asking them
2 to stop cutting trees on his property sometime between 2016 and 2017, not in 2015. He
testified about one other time within the past ten years when he explained to them that he
knew they were over the property line.
Steven Beadle testified that he conducted a survey for Mark Waggoner on May 5,
2017. He testified that the Alfords’ lot is mostly wooded except for the area right around
the house and that Waggoner’s lot is also hilly and wooded. He testified that he did not
notice any sort of wire to the west of the residence. He explained that the corner of the
residence is 32.7 feet across the property line and that the playground equipment is 38.9 feet
from the corner of the house. He stated that west of the playground equipment is wooded.
Lastly, he testified that he did not observe any other survey markers or flags while
conducting the survey.
Jay O’Neal testified that he is a homebuilder and developer and knows Waggoner’s
property well. He testified that the plot plan that the Alfords presented to the city to apply
for their building permit showed that the house would be twenty-seven feet from the
property line but that the house did not end up being built there. When asked why he
thought that happened, he responded, “[S]omeone didn’t do their job is all I can tell you.”
On cross-examination, he testified that he and Waggoner had plans to subdivide his property
and sell it. He said he had no knowledge of the Alfords doing anything to the property to
maintain it and that he has seen Waggoner mow the area one time.
Jennifer Alford testified that she has lived at her current residence since July 2008—
eleven years. She testified that before buying their land, she and her husband walked the
property and remembered the wire fence line being present. She testified that Waggoner
3 approached her three to six months after moving in. She explained they walked over to the
disputed property and Waggoner dug around and picked up a metal pin. She testified that
he came back about a year later, and they had a similar interaction. After that, Alford did
not hear from him again until 2017. She testified to the maintenance and upkeep of the
disputed property explaining that she and her husband take care of it by blowing leaves,
pulling rocks, and killing the weeds. Alford testified that she would do this maintenance all
the way to the fence line because she believed the fence to be the property line. She said
that she only ever saw Waggoner on the other side of the fence.
Regarding the wire fence, Alford testified that she and her husband never asked for
permission to be on any part of the disputed property because they assumed it was theirs.
She said she never saw “no trespassing” signs posted, so they just always honored the fence
as the boundary. Alford explained the fence is a little ragged and beat up and that it has
grown into some of the trees but that it is visible and extends the entire length of the .828
acres in dispute. Daniel Alford then testified, and his testimony mirrored that of his wife.
Heather Hartsell, the Alfords’ neighbor, testified that she has seen the Alfords
cleaning up around the side of their house and behind the house and that she has never seen
anyone else on the disputed property.
On August 16, 2019, the circuit court entered a written order finding that the Alfords
had proved title to the disputed property and that Waggoner had not proved that he was
entitled to have them ejected from the property. Waggoner now appeals from this order.
Boundary-line cases are reviewed de novo. Smith v. Bowser, 2020 Ark. App. 425, at
5–6. This court will not reverse findings of fact unless they are clearly erroneous. Id. A
4 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 made. 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. The circuit court did not
specify the basis for its ruling, so the parties have argued both bases pleaded by the Alfords
in their petition—adverse possession and boundary by acquiescence.
In Myers v. Yingling, 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008), the 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. Crum v. Siems, 2019 Ark. App. 232, at 4–5, 575
S.W.3d 612, 615. 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. Id. This court has repeatedly held that a fence, by acquiescence,
may become the accepted boundary even though it is contrary to the survey line. Smith,
2020 Ark. App. 425, at 7. 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).
5 Waggoner first argues that the court erred in finding a boundary by acquiescence
because the parties did not mutually consent to the arbitrary boundary. He contends that he
knew where his property line was located and that he had no intention of the wire fencing
being confused for the boundary. This argument lacks merit because tacit acceptance will
sustain a finding of acquiescence. Whitecotton v. Owen, 2016 Ark. App. 120, at 6, 487 S.W.3d
380, 384. Express recognition or agreement between the parties is not necessary, and silent
acquiescence is sufficient when mutual recognition of the boundary line can be inferred
from the conduct of the parties over a period of years. Id.; see also Thurlkill v. Wood, 2010
Ark. App. 319, 374 S.W.3d 790.
The Alfords’ testimony that they have maintained and improved the disputed
property without any objection from Waggoner since 2009 until suit in 2017 is substantial
evidence of silent acquiescence that the wire fence line reflected the boundary between the
two properties. And while we acknowledge that Waggoner did testify that the wire fence
had been around only one to two years, the Payne survey identified the fence as in “poor
condition,” and there was testimony that the fence was ragged, had been present for a long
time, and had grown into the trees in places. Jennifer testified that she and her husband had
performed maintenance and upkeep on the disputed property—from their land to the fence.
This evidence supports the finding of a boundary by acquiescence. 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.
6 Waggoner cites McJunkins v. McJunkins, 2018 Ark. App. 293, 550 S.W.3d 895, to
support his argument that there must be mutual recognition that a fence acts as a boundary
line. In McJunkins, this court affirmed the finding that the plaintiffs had failed to prove that
a wire fence used to separate cattle from hogs was mutually accepted as a boundary line
established by acquiescence. There, the disputed property had, at one point, been a part of
a larger family farm. The parties were relatives. The circuit court noted that all parties were
aware of when and why the fence had been built, and it was not for the purpose of
designating the property line between the families’ tracts of land. Thus, the circuit court
found that there was no mutual recognition that the wire fence was a boundary line.
McJunkins is distinguishable because, here, the fence was present when the Alfords purchased
their property, and testimony of the conduct of the parties supports the finding that they
treated the fence as the boundary between the properties.
A preponderance of the evidence supports a finding that the parties tacitly agreed
that the fence represented the boundary between the properties. Thus, the circuit court did
not clearly err in finding a boundary by acquiescence and quieting title accordingly. Because
we can affirm Waggoner’s first point, we do not need to reach his remaining arguments
concerning adverse possession.
Affirmed.
HARRISON, C.J., and WHITEAKER, J., agree.
Alexander Law Firm, by: Daniel C. Brock and Hubert W. Alexander, for appellant.
McMullan & Brown, by: Amy Clemmons Brown, for appellees.