dissenting. The majority has reached a result in this case that violates the standard of review in boundary-dispute cases. This court reviews such cases de novo on the record; however, it is not to reverse unless the circuit court’s findings of fact are clearly erroneous. Robertson v. Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004). In other words, this courtis not to reverse a circuit court’s findings on a boundary-dispute case unless it “is left with a definite and firm conviction that a mistake has been committed.” Carson v. County of Drew, 354 Ark. 621, 625, 128 S.W.3d 423, 425 (2003). We do not decide these cases as if we are the triers of fact. Yet, this is precisely how the majority has reasoned its way to reverse the trial court.
Through acquiescence, a fence may become the accepted boundary line between two parties even though it is contrary to the surveyed boundary line. Robertson v. Lees, supra; Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). The mere existence of a fence, without evidence of mutual recognition, cannot sustain a finding of a boundary by acquiescence. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 297 (1978); Robertson v. Lees, supra. Silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. Warren v. Collier, supra; Hicks v. Newton, 255 Ark. 867, 503 S.W.2d 472 (1974). A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998).
For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties. Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962).
Plainly, the Boyettes merely assumed that the old fence line was the boundary line because both parties maintained their property up to the fence. The Boyettes’ allegedly longstanding recognition of the old fence as the established boundary line is undercut by the fact that they did not designate the fence as the boundary line in the 1994 quitclaim deeds. Further, Ray Vogelpohl testified that he never recognized the old fence as the boundary line and that the surveys he relied upon did not reflect any fences on the property. Because our standard of review requires this court to be deferential to the circuit court’s determinations of credibility and weight to be accorded testimony, see Carson v. County of Drew, supra, there is no valid evidentiary reason for the majority to hold that the circuit court erred.
The majority has also over-relied on Summers v. Dietsch, supra. The following excerpt represents that court’s rationale for reversing the lower court’s finding that a boundary had not been established:
In this case, it is undisputed that the fence had been in existence at the same location for over forty years. During at least the twenty-one years of appellant’s ownership, neither appellees nor their predecessors ever objected to appellant’s use of all of the property west of the fence. Rather, the owners of each tract of land used the property on their respective sides of the fence, up to the fence line. The evidence indicates that both appellant and appellees helped maintain the fence. Although appellee Dietsch testified that he thought as early as 1980 that the fence was on his property, he also testified that he did nothing about it until commencing this action in 1991. By their actions, the parties and their predecessors have accepted the fence as the existing and physical boundary fine for at least twenty years without question or objection. Appellees’ actions belie their contentions to the contrary.
Id. at 56, 849 S.W.2d at 5-6.
At least three facts distinguish Summers from the present case. First, the appellee in Summers acknowledged that the fence was recognized as the boundary. Vogelpohl testified, in contrast, that he never recognized the fence as the boundary. Second, the appellee in Summers testified that he thought as early as eleven years prior to the litigation that the fence was on his property. The surveys in the instant case do not show the fence as a boundary line or that the fence was even on the property. The majority seems to believe that Vogelpohl’s reliance on the old survey supports a finding that he acquiesced to the fence as a boundary; however, Vogelpohl testified that the survey showed no fences on the property and that he had no reason to believe that the Boyettes were claiming anything other than what was in their deeds. Finally, both parties in Summers helped maintain the fence. Such evidence is absent here. In fact, Vogelpohl did nothing to the fence until he noted that it was not on the surveyed boundary line. He then removed the fence.
The majority’s interpretation of the evidence in this case is also internally inconsistent. The majority states that the evidence in this case “reflects mutual recognition and silent acquiescence.” Recognition and acquiescence are two different things: the former requires express acceptance, while the latter requires merely tacit acceptance. See Black’s Law Dictionary 25, 1299 (8th ed. 2004) (defining “acquiescence” as “A person’s tacit or passive acceptance” and “recognition” as “The formal admission that a person, entity, or thing has a particular status”). For the majority’s interpretation of the evidence to be correct, the Vogelpohls would have had to do some act recognizing the old fence as the boundary line while passively agreeing to the fence as the boundary line. In a proper standard of review, this court cannot hold that either, much less both, existed.
In re-weighing the evidence and holding that appellants did establish a boundary line by acquiescence, the majority has effectively declared the deeds useless. A deed that indicates the true boundary lines is rendered meaningless if a party can change those boundaries by merely assuming that another line must be the boundary. Every relevant document in this case established or referred to the surveyed line as the boundary line. Yet, with apparent disdain for that body of proof, the majority has reached its decision.
I also disagree with the majority concerning the adverse-possession argument. First, the majority opinion essentially makes the argument for the Boyettes. Much of the Boyettes’ original and reply briefs are devoted to the boundary-by-acquiescence issue. In their main brief, they merely state the elements of adverse possession. In reply, they only respond to the Vogelpohls’ assertion that the requirements of Ark. Code Ann. § 18-11-106 (Repl. 2003) (requiring the payment of taxes) were applicable. The Boyettes’ failure to develop this point should have been reason enough to affirm on their adverse-possession theory. See Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003). Instead, the majority opinion erroneously concludes that the circuit court should have ruled in the Boyettes’ favor on this point.
When considering an adverse-possession claim, a court presumes that possession of land by someone other than the true owner is subservient to that of the true owner. See Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780 (1998). Further, it is well-settled that a person does not lose title to land simply by placing a fence within his boundary; such a loss occurs only if his neighbor takes possession of the strip and holds it for the requisite number of years. Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S.W.2d 495 (1953); Avington v. Newborn, 271 Ark. 648, 609 S.W.2d 678 (Ark. App. 1980). The majority should not hold that this presumption was overcome simply because appellants maintained the lawn on their side of the fence, especially in light of evidence that no previous survey or deed (particularly the 1994 quitclaim deeds drafted by Roxie Boyette) showed that the land belonged to the Boyettes.
Finally, I am troubled by the fact that the majority found reason to reverse on both theories. Cases involving a boundary by acquiescence involve the peaceful possession of lands up to the acquiesced boundary. Council v. Clark, 246 Ark. 1110, 441 S.W.2d 472 (1969); Avington v. Newborn, supra. Acquiescence requires mutual recognition of a boundary line. Rabjohn v. Ashcraft, supra. In other words, parties on both sides of the acquiesced boundary must accept the line as the true boundary between the parties. Meanwhile, adverse possession requires hostile possession of property with the intent to hold that property in derogation of the rights of the true owner. Bonds v. Carter, 348 Ark. 591, 75 S.W.2d 192 (2002). While hostile ownership does not require conscious feelings of ill will or enmity toward one’s neighbor, Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990), it does require possession of land that the neighbor claims as his own.
Boundary by acquiescence and adverse possession are two alternate, yet competing (if not mutually exclusive), theories. By holding that both existed in this case, the majority has stated that the Boyettes claimed land to which the Vogelpohls had recognized no claim while simultaneously claiming land to which the Vogelpohls had made a claim. The inconsistency in the logic is apparent, and the dual holdings make no sense. I suspect that law students and law professors in real property classes will find these holdings amusing, but I cannot understand how this decision will make sense to lawyers who must counsel litigants.
For the reasons stated herein, I must respectfully dissent. I am authorized to state that Judge Gladwin joins in this dissent.