Adcock v. Deaton ( 1972 )

Conley Byrd, Justice.

This is a boundary dispute between the appellant Deward Ray Adcock and the appellees Mr. and Mrs. Lawrence Deaton. The trial court concluded that, since the two parcels of land were sold by the common grantor with reference to an old fence as the dividing line, the fence line must be respected by the grantees and their successors as the division line between the two properties. For reversal appellant contends that the court erred in considering an agreed boundary since that was not pled and no evidence was offered regarding an agreed boundary.

Mr. M. E. Deaton, Sr., the common grantor of the two properties, testified without objection that properties had never been surveyed until the litigation in question arose. The old fence in question was built the day he made the deed to Mr. Castleman, appellant’s predecessor in title. He also stated that before building the fence, he talked to Mr. Castleman,and that Mr. Castleman furnished the cross-ties for the posts.

For many years upon the authority of Ark. Stat. Ann. § 27-1160 (Repl. 1962), we have held that where testimony is received without objection, a trial court in its discretion may treat the pleadings as amended to conform to the proof. We can find no abuse of discretion in this instance.

Furthermore, the case of McCall v. Owen, 212 Ark. 984, 208 S.W. 2d 463 (1948), supports the holding of the trial court on the facts.

Affirmed.

George Rose Smith and Fogleman, JJ., dissent.