Reynolds v. GFM LLC ( 2013 )

Cite as 2013 Ark. App. 484ARKANSAS 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{4zuId. 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.
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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
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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
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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.
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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'
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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
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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
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Cite as 2013 Ark. App. 484only 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.
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