dissenting. I respectfully dissent from the majority decision in this case for the foUowing reasons.
In the first place, both parties had the property here involved surveyed in 1979 and stipulated during the trial that the true boundary line is accurately reflected on the appeUees’ survey and that this surveyed line should prevail unless the court found an old fence line to be the boundary.
Both the north half and the south half of the quarter section involved were owned by the same man in 1948. That year he had a survey crew go around the entire 160-acre tract estabhshing each corner of the tract. This was done by using the southwest corner of the quarter section which had been located and confirmed by the State of Arkansas Geological Commission, Land Survey Division, from the field notes of the early 1800 United States surveyors. Not only was each corner of the 160-acre tract established but the two corners which form the beginning and ending point of a line splitting the quarter section into its north half and south half were also established and marked. These corners were found and used in the surveys made by the parties in 1979-
In 1948, Virgil Allgood bought the south half of the quarter section and built a fence on the northern edge of his property. In 1949, his brother Cecil bought the north half of the quarter section. Cecil owned this half until 1952, when he sold it to his brother-in-law Gerald Brown. In 1979, Brown sold it to the appellants in this case, Ray and Marcia Camp.
The south half of the quarter section has been owned by various people through the years and in 1972 was purchased by the appellees, Lino and Marguerite Liberatore.
The fence that Virgil Allgood built in 1949 started at the southeast corner of his property and angled northwesterly to a point 180 feet north of the true boundary line, taking in approximately 3.46 acres of land that was in the north half of the quarter section which he did not own.
It is this acreage that the appellees get as a result of the majority decision in this case. They get this land because the chancellor found that the old fence line is a boundary line by acquiescence. There have been many cases decided by the Arkansas Supreme Court on this point. See Hoskins v. Cook, 239 Ark. 285, 388 S.W. 2d 914 (1965); Fish v. Bush, 253 Ark. 27, 484 S.W. 2d 525 (1972); Hicks v. Newton, 255 Ark. 867, 503 S.W. 2d 472 (1974); Warren v. Collier, 262 Ark. 656, 559 S.W. 2d 927 (1978) and James v. Seward, 265 Ark. 225, 578 S.W. 2d 16 (1979).
All of the above cases hold that the mere existence of a fence between adjoining landowners is not of itself sufficient to establish a boundary line by acquiescence. There must be a mutual recognition of the fence as the boundary line. That there has been no mutual recognition that the fence built in 1949 was a boundary line is shown by the testimony of Gerald Brown who owned the north half of the quarter section for over twenty-five years. During all these years the south half of the quarter section was owned by various people. Brown testified that when he bought the property from his brother-in-law Cecil Allgood he didn’t recall any statement concerning the fence and he took Cecil’s word that he was getting the acreage called for. During all the years from that time until the Liberatores purchased the adjoining property, there was never any dispute about the location of the fence. There was never any agreement whatsoever about whether the fence was the line or not. It just wasn’t mentioned. And when Liberatore bought the adjoining property there was no agreement between them as to the line.
In addition to that, the evidence shows that when Liberatore bought his land in 1972 the fence built by Virgil Allgood in 1949 had practically disappeared. Liberatore himself testified that there were remnants of an old fence with intermittent posts either standing or lying down and that he tripped a few times because he couldn’t tell where the wire was for it was buried in the leaves. He testified that when he started putting up a new fence in 1972 he sometimes tied to a remnant of wire or post from the original fence, that sometimes his fence ran within one foot of the old remnants and sometimes within five feet, and “if I thought it needed straightening, I would straighten it out.” One can look at the pictures in the record and see that the fence involved is a zigzag, tree-to-tree and post-to-post fence. And the chancellor himself fixed the line, which he found to have been established by acquiescence, at one foot north of this new fence constructed by the Liberatores.
I agree with the appellants whose brief states that “a basic principle running throughout all of the cases is that the burden of proof is upon any landowner who seeks to have a boundary line established at any location other than the true boundary as revealed by the original surveys nearly 200 years ago.”
I also agree with appellants’ brief that to disrupt these original surveys allowing “nearly 200 years of history to go down the drain ... in favor of the remnants of some ragtag fence wandering through the woods is ... undesirable.”
Reviewing the evidence, as is our duty, under Rule 52 of the Rules of Civil Procedure, I think that the chancellor’s finding is clearly against the preponderance of the evidence and I would reverse the decision.
Corbin, J., joins in this dissent.