dissenting.
I respectfully dissent from the majority opinion regarding appellant’s claim of a boundary by acquiescence. Despite the testimony from Milton Stewart and Jackson that they did not consider the fence to be the boundary, I am left with a firm conviction that the trial court made a mistake by ruling in favor of Stewart. 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. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000). It is the agreement and acquiescence, not the fence itself, that controls. Camp v. Liberatore, 1 Ark.App. 300, 615 S.W.2d 401 (1981). 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. |inNeither a prior dispute about the boundary line, nor adverse usage up to a fence is required to establish a boundary by acquiescence. Myers v. Yingling, 372 Ark. 523, 279 S.W.3d 83 (2008).
This case presents a classic example of actions speaking louder than words. Stewart and Jackson’s actions over several decades as neighbors belie their testimony at trial that was self-serving (in the case of Stewart) and to the benefit of a friend (in the case of Jackson). All of the evidence before the trial court showed that both Jackson and Stewart treated all of the land on their respective sides of the fence as their own. Although Stewart claimed at the hearing that he always knew the fence was not on the boundary line, he (1) never moved the fence, which remained in the same location for approximately forty-eight years, and (2) allowed the fence to be repaired. Likewise, Jackson claimed that he never treated the fence as the boundary line; however, he quitclaimed his interest in the disputed property to Stewart, an act that, if the two parties never considered the fence to be the boundary, was completely unnecessary. The actions of Stewart and Jackson clearly demonstrated an agreement between the two of them that the fence would be treated as the boundary between their respective properties. There was no evidence that this agreement changed when Burns purchased his property, as demonstrated by the fact that the fence remained up after Burns moved onto his land. If Stewart’s actions regarding the fence line do not qualify as acquiescence, I fail to see what would. I would reverse the decision of the trial court.