Supplemental Opinion on Denial of Petition for Rehearing June 24, 1981
Boundaries — boundary by acquiescence. — In the instant case, there is no doubt that appellants, appellee and their predecessors in title recognized the fence as the dividing line between the East Shores Estates and Yendrek additions, and the law is well settled that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence.
Petition denied.
Tom Glaze, Judge.We decided this boundary property dispute in Price v. Mauch, 1 Ark. App. 348, 616 S.W. 2d 738 (1981), and affirmed in part the trial court’s decision, but reversed and remanded to modify the decree to show appellee owns the property in dispute to the fence but not to the quarter line. On June 5, 1981, appellee filed a petition for rehearing, contending appellee held legal title to the quarter line and that the Yendrek property could only be platted to the quarter line but not north of it. Neither appellee nor appellants cite any legal authority relative to this issue.
In denying appellee’s petition, we take this opportunity to briefly mention certain factors we previously considered but omitted from our written opinion. As we noted in Price v. Mauch, supra, Warndof platted both additions, Yendrek in 1968 and East Shores Estates in 1969. Warndof repeatedly testified that the fence was considered to be the boundary line between East Shores Estates and Yendrek, and this is exactly the way he depicted it on the plat.1 Appellee’s predecessor in title, James K. Young, was the person who engaged Warndof to plat East Shores Estates, and Young never objected to the plat when it was prepared and filed. Appellee, in a letter introduced into evidence without objection, stated that the “old fence line was the property line and it should not be destroyed.” Additionally, two other witnesses, grandchildren of the developer of Yendrek, testified that the purpose of the fence between Yendrek and East Shores Estates was intended to be the property line. One witness related the fence had been so considered for twelve years and the other testified it was the boundary line since 1940.
In reviewing the record de novo, we have no doubt that the appellants, appellee and their predecessors in title recognized the fence as the dividing line between the East Shores Estates and Yendrek additions. The law is well settled that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Morton v. Hall, 239 Ark. 1094, 396 S.W. 2d 830 (1965), and Williamson v. Rainwater, 236 Ark. 885, 370 S.W. 2d 443 (1963).
Since we find that the record reflects that the parties and their predecessors acquiesced in the fence being the boundary line, we deny appellee’s petition for rehearing.
We previously held that Warndof’s actual survey established the south line of appellee’s Lot 9 and the cul-de-sac are six (6) feet north of the fence.