Reynolds v. GFM, LLC

2013 Ark. App. 484, 429 S.W.3d 336, 2013 WL 4854765, 2013 Ark. App. LEXIS 505
Court of Appeals of Arkansas·Decided September 11, 2013·No. No. CV-13-29·Published·Cited by 8 cases

Opinion

LARRY D. VAUGHT, Judge.

hln this boundary-line dispute, appellants Cecil James Reynolds, Donna Reynolds, and Cecil J. Reynolds, Sr. (collectively “the Reynoldses”), appeal the decree entered by the Independence County Circuit Court, finding in favor of appellee GFM, LLC (GFM).1 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 entitled to a prescriptive easement in a road on the Reynoldses’ property. On appeal, the Reynoldses challenge both findings, contending that the trial court clearly erred in denying their claim for a boundary by acquiescence and in awarding GFM a prescriptive easement in the road on their property. We affirm the former finding; however, we reverse the latter.

|«>GFM and the Reynoldses are adjoining landowners in the Cave Creek community located in Independence County, Arkansas. Pertinent to this appeal is property that GFM owns in Section 10, Township 14 North, Range 6 West. Due south of this property is an eighty-acre tract 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 Reynoldses’ boundary line and south of GFM’s fence— the property in dispute — is approximately eighty to one-hundred acres.

GFM initiated this case in November 2011 by filing a complaint to quiet title and for a temporary restraining order against the Reynoldses, alleging that they, without GFM’s permission, cut timber and built fences and roads on its property and blocked its access to its property. In response, the Reynoldses filed an answer and counterclaim alleging that the proper boundary line between the parties was the fence line on GFM’s property. The Reyn-oldses alleged that the fence was the boundary by acquiescence, and they sought legal title to the property in dispute.

At trial, GFM presented 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’ property. Lemley concluded that the boundary line was the southern boundary Hne 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 property. However, he observed deer stands on the disputed property, which he believed belonged to a hunting club that GFM had on its property.

| s Jimmy Lee Downs testified that he had lived in the Cave Creek community for thirty-seven years and that the fence on GFM’s property dated back to the 1980s. Downs said that he had been a member of the GFM hunting club for seven to ten years, and he confirmed the existence of hunting-club deer stands on GFM’s property. For years prior to the Reynoldses’ ownership of the property, according to Downs, he and other hunters used the road that ran through the Reynoldses’ property to access the hunting club. However, Downs added that since the Reyn-oldses have owned the property, the road had been closed off.

The final GFM witness was Kendall Smith. He explained that the hunting club, owned by the Grace family, managed the property in dispute.2 He testified that on a recent visit, he traveled on the road that ran through the Reynoldses’ property and was stopped and questioned by Donna Reynolds.

On behalf of the Reynoldses, Larry Wilkes, a life-long resident of the Cave Creek community, testified that the Reyn-oldses kept cattle on their property for forty to forty-five years and that the Reyn-oldses repaired the fence from time to time. He added that the fence preexisted the Reynoldses’ purchase of the property, that he did not know if the fence was put up by someone who owned the land on both sides of the fence, and that he did not know if the fence line was the boundary line. Wilkes also said that he had driven on the road through the Reynoldses’ property many times.

|4Boyd Quails testified that he had lived in the Cave Creek community for twenty-six years and currently lived just west of the Reynoldses. Quails 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 regularly used when nearby property was being mined. He added that only the Reynoldses and their friends use the road now.

Cecil James Reynolds (James) testified that he leased his property in 1988 and purchased it in 2008. While he agreed that his deed conveyed to him only an eighty-acre tract, it was his belief that his tract included the property in dispute. He said that over the years he used the property south of the fence3 and that no one has ever questioned his use of the property. He added that the road through his property runs very close to his home, and that since 2008, only his family and his friends have used it. James’s wife Donna Reynolds concurred, stating that only their friends and family use their road.

At the conclusion of the trial, the court asked counsel whether there was any dispute that, based on the Reynoldses’ deed and the 2009 survey, GFM was the record title holder of the property at issue. Counsel for the Reynoldses conceded that there was no dispute on that matter, to which the trial court stated, “the burden then, of course, ... falls upon the [Reyn-oldses] to present their claim [for boundary by acquiescence].”4 Thereafter, the trial court quieted title in |Bthe disputed property in accordance with the 2009 survey; found that the Reynoldses failed in meeting their burden of proving that the fence on GFM’s property 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 filed a notice of appeal.

The Reynoldses’ first point on appeal is that the trial court clearly erred 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 line. Strother v. Mitchell, 2011 Ark. App. 224, at 17, 382 S.W.3d 741, 752. When adjoining landowners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the trae one, although it may not be. Id., 382 S.W.3d at 752. 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. Id., 382 S.W.3d at 752. It is the agreement and acquiescence, not the fence itself, that controls. Id. at 17-18, 382 S.W.3d at 752. 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 18, 382 S.W.3d at 752.

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Reynolds v. GFM, LLC, 2013 Ark. App. 484, 429 S.W.3d 336, 2013 WL 4854765, 2013 Ark. App. LEXIS 505 (Ark. Ct. App. 2013).

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