dissenting. Because I disagree that there was ample evidence from which the circuit court could conclude that the parties’ predecessors in interest had acquiesced to the fence as the boundary fine between the two properties, I respectfully dissent.
As the majority correctly stated, whenever adjoining landowners tacitly accept a fence line as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. See Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972) (emphasis added). However, the mere existence of a fence between adjoining landowners is not alone sufficient to establish a boundary by acquiescence; there must be a mutual recognition of the fence as the dividing line. See Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1963); Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978). The party which contended that the boundary is other than that described in the deed, here, the Yinglings, had the burden to prove that the parties agreed on a boundary other than that described. See Council v. Clark, 246 Ark. 1110, 441 S.W.2d 472 (1969).
First and foremost, the Yinglings failed to establish a mutual recognition between adjoining landowners that the fence on the west side of Overstreet Lane was considered to be the boundary line between their adjoining lands. While the majority relies heavily on the testimony of Eddie Smith, Smith’s belief that his east boundary line was to the west of Overstreet Lane does not establish that he also considered it to be the western boundary line of the Yinglings’ property. Smith clearly believed the road was for public use, not that the fence to the west of Overstreet Lane created the division line between his property and the Yinglings’ property. In fact, Smith’s testimony illustrates his belief that everyone owned the road. Smith did not believe that he was an adjoining landowner with Yingling; rather, Smith mistakenly believed the road divided their two properties. It is my opinion, when considering the totality of Smith’s testimony, it does not support a finding of a boundary by acquiescence.
The majority further relied on the testimony of Billy Don Martin. Martin possesses property directly north of Myers’s property and testified at trial that he personally believed the east boundary line to Myers’s property was the fence west of Over-street Lane. However, he also repeatedly mentioned that there were two fence lines — one fence to the east of Overstreet Lane and once fence to the west. Finally, based on Martin’s testimony, there was never a prior dispute over where the fence lines were among neighbors and he never heard anyone comment about where the boundary lines were located.
In Ball v. Messmore, 226 Ark. 256, 289 S.W.2d 183 (1956), the appellants, in claiming more land than the chancellor awarded them, relied upon the testimony of several witnesses who said that a branch had long been understood to be the line. This court held that while that testimony may have been true, it fell short of establishing a record title, adverse possession, an agreed boundary line, or any other fact of substantive importance. See id. We held that it, at most, showed the existence of a general belief about the line, but further provided that such a belief could not have the effect of vesting or divesting the title to real property. See id.
In the instant case, Martin’s personal opinion also only shows, at most, the existence of a neighbor’s general belief about where the boundary line might be. Furthermore, the rule of acquiescence is based on the intent and agreement between the adjoining landowners. See Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972) (holding the basic question of acquiescence is one of intention, namely, whether adjoining landowners meant to recognize a fence as a boundary).
The majority correctly stated that boundary by acquiescence has usually been inferred from the landowners’ conduct over so many years as to imply the existence of an agreement about the line. See Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978). Here, Mr. Myers’s conduct did not suggest acquiescence. When the Yinglings first put a gate on Overstreet Lane, admittedly, Myers did not object, but asked for a key. However, Myers immediately changed the gate once he realized that the Yinglings were claiming possession to Overstreet Lane, to which Myers had legal title. Again, the Yinglings, the party which argued that the boundary is other than that described in the deed, had the burden to prove that the parties agreed on a boundary other than that described. See Council v. Clark, supra. Based on the failure of the Yinglings to meet that burden of proof, the boundary line is that described by the deed.
In conclusion, I find it interesting that even the majority recognizes that the Yinglings did not have the property surveyed when they purchased it, but speculated as to the property line. It is important to note that not every fence erected is for the purpose of creating legal boundaries. Often cross-fences are confused for boundary lines and future property owners are not always privy to the original purpose for fencing. Here, the overwhelming weight of the evidence does not support a boundary by acquiescence, especially considering that the testimony supports there had never been a prior concern by any of the neighbors as to where the property lines were located, everyone used and maintained Over-street Lane, and Smith did not believe his fence to the west of Overstreet Lane created the division line between his property and the Yinglings’ property.
The circuit court’s finding was against the preponderance of the evidence. For the foregoing reasons, I respectfully dissent.
Hannah, C.J., and Gunter, J., join.