Cite as 2017 Ark. App. 488
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-873
Opinion Delivered: September 27, 2017
IRVING T. SMITH, JR., AND
MALINDA F. SMITH APPEAL FROM THE CRAIGHEAD
APPELLANTS COUNTY CIRCUIT COURT,
EASTERN DISTRICT [NO.
V. 16LCV-12-27]
HONORABLE JOHN N. FOGLEMAN,
LONNIE DEAN BOATMAN AND JUDGE
FLORA JEAN BOATMAN
APPELLEES
AFFIRMED
KENNETH S. HIXSON, Judge
This case involves a boundary-line dispute in Craighead County. The appellants,
Irving Smith and Malinda Smith, own property adjacent to and directly west of property
owned by the appellees, Lonnie Boatman and Flora Boatman. When the Smiths purchased
their property in 2011, there was an old wire fence traveling north to south, which
encroached onto the Smiths’ land as surveyed and was about ten feet west of the surveyed
boundary line at the northern edge of their property and six feet west of the surveyed
boundary line at the southern edge (sometimes referred to herein as the “disputed strip of
land”). Irving Smith made this discovery after surveying his recently purchased property,
Cite as 2017 Ark. App. 488
and in early 2012 he tore down the wire fence and built a new fence near the location of
the surveyed boundary of the parties. 1
Shortly after Mr. Smith tore down the old fence and built the new one, the Boatmans
filed a petition to quiet title against the Smiths. In their petition, the Boatmans alleged that
the old wire fence had served as the boundary line between their property and the property
to the west for at least forty years. The Boatmans claimed ownership of the disputed strip
of land by adverse possession and boundary by acquiescence. The Boatmans asked that the
Smiths be ordered to remove the new fence and pay damages for removal of the Boatmans’
pecan tree that was located on the disputed strip.
After a bench trial, the trial court entered an order quieting title to the disputed strip
of land in the Boatmans. The trial court found that the old fence removed by Mr. Smith
in 2012 had served as a dividing line between the properties for at least forty years. The
trial court found that the Boatmans had acquired the disputed strip by both adverse
possession and acquiescence. The trial court ordered the Smiths to move the new fence to
the location of the old one and to pay $400 in damages for the destruction of the Boatmans’
pecan tree.
The Smiths now appeal, raising two arguments for reversal. First, the Smiths argue
that the trial court erred in reaching the conclusion that the Boatmans’ predecessors in title
had satisfied the hostility element of adverse possession. The Smiths also contend that the
1
The new fence was not exactly on the record boundary line but was about a foot
west of it.
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trial court lacked sufficient evidence to make a finding of boundary by acquiescence with
regard to the Smiths’ predecessor in title. We affirm.
We review quiet-title and boundary-line actions de novo, but we will not reverse
findings of fact unless they are clearly erroneous. Lafferty v. Everett, 2014 Ark. App. 332,
436 S.W.3d 479. A finding is clearly erroneous when, although there 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 committed. Barton v. Brockinton, 2017 Ark. App. 369, ___ S.W.3d ___.
In reviewing a trial court’s findings of fact, the appellate courts give due deference to the
trial court’s superior position and the weight to be accorded the testimony. Steele v.
Blankenship, 2010 Ark. App. 86, 377 S.W.3d 293.
Lonnie Boatman testified that he has lived on his property since he was five years old
when his father bought the land in 1967. Mr. Boatman’s father sold him the property in
1988, and Mr. Boatman and his wife Flora have lived there ever since. Mr. Boatman
testified that the old wire fence was built around 1970 and remained there until torn down
by Mr. Smith in 2012. Mr. Boatman stated that they maintained the land up to the fence
and grew a garden there every year. According to Mr. Boatman, no one other than him
had ever maintained his side of the fence since he bought his property in 1988. The previous
owner of the Smith property was Barton’s Lumber Company, and Mr. Boatman stated that
they never had any discussion about who owned the now-disputed strip of land.
Flora Boatman also testified that she had never seen any previous owner of the Smith
property exercise any control of or claim the now-disputed strip of land. Mrs. Boatman
stated that they used the disputed strip of land for gardening and had a pecan tree on the
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strip from 1981 until it was bulldozed by Mr. Smith in 2012. They used the pecan tree to
sell pecans in the fall and made about $100 per year. In the winter months, Mrs. Boatman
would clean the area around the fence and remove weeds.
Terry Wycoff is the Boatmans’ neighbor to the north and has lived there for more
than twenty years. When Mr. Wycoff first moved there, Barton’s Lumber Company was
in operation on the west side of the old fence which is now the Smith property. According
to Mr. Wycoff, the Boatmans used the disputed strip of land and bush hogged to the fence
about twice a year. The Boatmans’ garden went up to the fence. Mr. Wycoff stated that
Barton’s Lumber used its side of the fence to pile gravel and rocks. Mr. Wycoff said that
the Boatmans maintained their side of the fence and that Barton’s maintained its side, and
that he never knew of anyone claiming land east of the fence except the Boatmans.
Jim Taylor is the Boatmans’ neighbor to the south and has lived there since 1982.
Mr. Taylor testified that the Boatmans always controlled the disputed strip of land and had
a garden there every year. When Mr. Smith was tearing down the fence in 2012,
Mr. Taylor told Mr. Smith that he thought the fence was on Mr. Boatman’s property, but
Mr. Smith told Mr. Taylor to mind his own business.
Appellant Irving Smith testified that after he bought his property in 2011 he noticed
a survey marker to the east of the old fence in the Boatmans’ garden in what is now the
disputed strip of land. Mr. Smith then conducted his own survey and discovered that the
Boatmans’ garden extended past the surveyed property line. Mr. Smith then tore down the
old fence and built the new fence near his surveyed boundary line, and he stated that while
he was building the new fence Mr. Boatman never tried to stop him. Smith further testified
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that Mr. Boatman told him he might as well take out the pecan tree too. Mr. Smith testified
that although Mr. Boatman did tell him that his father had put up the old fence,
Mr. Boatman never claimed to own the land up to the fence until filing the lawsuit.
On rebuttal, Mr. Boatman testified that he never gave Mr. Smith permission to tear
down his fence or his pecan tree. In fact, Mr. Boatman stated that he called the local police
department when he saw the excavator tearing down the fence. Based on the foregoing,
the trial court found that the Boatmans owned the disputed strip of land by adverse
possession and by acquiescence.
The Smiths’ first argument on appeal is that the trial court erred in determining that
the Boatmans had acquired the disputed strip of land by adverse possession. In order to
prove ownership of land by adverse possession the party claiming possession must show
continuous possession of the property for seven years. Robertson v. Lees, 87 Ark. App. 172,
189 S.W.3d 463 (2004). The claimant must also prove that possession was actual, open,
continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner.
Washington v. Washington, 2013 Ark. App. 54, 425 S.W.3d 858. The Smiths specifically
contend that the actions of the Boatmans’ predecessor in title failed to satisfy the
requirements of being hostile and accompanied with an intent to hold against the true
owner. The Smiths suggest that the actions of the Boatmans’ predecessor are best described
as having constructed a fence that mistakenly strayed from the legal property line and
enclosed a portion of the neighboring land. Characterizing this as an unintended mistake
as to the location of the true boundary, the Smiths posit that it was insufficient to satisfy the
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hostility element or the intent to hold against the true owner as required of an adverse
possessor.
We hold that the trial court did not clearly err in finding that the Boatmans proved
each of the elements of adverse possession with regard to the disputed strip of land. While
the Smiths assert that the old fence was constructed to the west of the record boundary line
by mistake, there was no evidence presented to support that claim. The testimony showed
that Mr. Boatman’s father erected the fence around 1970, but there was no testimony that
his father intended for the fence to run along the record boundary line. And even had there
been testimony that Mr. Boatman’s father’s placement of the fence was a mistake, we have
held that if the intention is to hold property adversely, the statutory period for adverse
possession runs regardless of any mistake as to boundary or title. Dickson v. Young, 79 Ark.
App. 241, 85 S.W.3d 924 (2002). When a landowner takes possession of land under the
belief that he owns it, encloses it, and holds it continuously for the statutory period under
claim of ownership, without recognition of the possible right of another on account of
mistake, such possession is adverse and hostile to the true owner. Id. (citing Davis v. Wright,
220 Ark. 743, 249 S.W.2d 979 (1952); Butler v. Hines, 101 Ark. 409, 142 S.W. 509 (1912)).
In this case the Boatmans presented four witnesses who testified that the Boatmans
had claimed the disputed strip of land inside their fence, maintained it, and exercised control
over it for far longer than the required seven-year period. The Boatmans’ occupation of
the property included bush hogging, harvesting pecans, and maintaining a garden up to the
fence line. There was no evidence that the Smiths’ predecessors in title had ever claimed
ownership or tried to exercise control of the disputed strip of land between the time the
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fence was constructed in 1970 and the time the Smiths bought the property in 2011. It is
ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of
such a nature as one would exercise over his own property and would not exercise over the
land of another. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. We conclude
that the conduct of the Boatmans satisfied the hostility element of adverse possession and
demonstrated an intent to hold against the true owner, and therefore we affirm the trial
court’s finding that the Boatmans acquired title to the disputed property by adverse
possession.
The Smiths also argue that the trial court erred in finding that the Boatmans had
acquired title to the disputed property by acquiescence. However, because we affirm the
trial court’s finding of adverse possession, this issue need not be discussed.
Affirmed.
ABRAMSON and VAUGHT, JJ., agree.
Woodruff Law Firm, P.A., by: Jennifer Woodruff Douglas, for appellants.
Tiner, Cobb & Byars, by: Jarrett Matthew Cobb, for appellees.
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