dissenting. I agree that appellants’ claim for fraud is barred by the statute of limitations, but I disagree that the same is true of appellants’ breach-of-warranty action. Appellants’ claim for breach of warranty did not accrue until the entry of Judge Foltz’s 2002 order, meaning that their 2005 complaint was filed within the limitations period.
Appellants purchased a lot that, by all indications, extended beyond the fences in question. A survey showed the fences well within appellants’ property lines, and representations on the property disclosure form indicated that no fences were shared with adjoining landowners. Approximately two years after the purchase, appellants were told by the neighbors’ attorney that, in his opinion, the fence line had become the boundary line. Appellants did not accede to this opinion or give it any credence whatsoever. In fact, about two years later, they conducted other activity in the area beyond the fence. Ultimately, appellants and their neighbors found it necessary to file legal action to settle the question of where the boundary lines lay. Until the day that Judge Foltz entered his order in 2002, that question remained unsettled. How then can it be said that, prior to entry of the order, appellants were evicted from a portion of their property?
The mistake that the majority makes is in usingjudge Foltz’s 2002 findings to leap backward in time and effect an eviction of appellants six years earlier. While this approach may have a certain legalistic appeal, given Judge Foltz’s determination that the boundary lines had been recognized for “many years,” it is wholly inconsistent with what occurred in the actual passage of time before the entry of the Foltz order. During that time, appellants possessed and went upon the land beyond the fences, treated it as their own, were not deprived of the enjoyment of it, and did not yield to what they obviously considered their neighbors’ unfounded claims. Nothing equivalent to an eviction occurred until Judge Foltz informed the parties in 2002 where the boundary lines lay —• a finding of fact that, I submit, could have gone either way or been overturned on appeal, in which case appellants would never have been evicted at all. Clearly, the fact of eviction did not exist until entry of Judge Foltz’s order.
I also believe that the majority’s reliance on Bosnick v. Hill, 292 Ark. 505, 731 S.W.2d 204 (1987), and Timmons v. City of Morrilton, 227 Ark. 421, 299 S.W.2d 647 (1957), is misplaced. In Bosnick, the third party asserting an interest in the grantee’s land was in actual, fenced possession of a portion of the property, and the grantee was forced to file suit to regain possession. Here, appellants did not have to regain possession because they acquired possession, continued it, and did not relinquish it until required to do so. In Timmons, the grantee claimed that his grantor had constructed obstacles that prevented him from full possession of the property. The supreme court held that the grantee was constructively evicted on the date of the deed because the obstacles were “visible and obvious.” By contrast, the appellants in this case had no visible and obvious means of realizing that they might not be entitled to full possession of the property conveyed to them. While the fences themselves were obvious, that they represented a boundary line was not. A boundary by acquiescence is established through silence. See McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Who can say in the present case, without benefit of the trial court’s factual finding, whether the fences were boundaries by acquiescence? This is especially true when, as stated earlier, all indications were that appellants were entitled to possession beyond the fence lines and they in fact exercised that possession.
This case is more akin to Smiley v. Thomas, 220 Ark. 116, 246 S.W.2d 419 (1952). There, Smiley’s predecessors conveyed land to Thomas in 1929. Thomas later discovered that there was an outstanding, one-half mineral interest in the land in O’Brien Bros., Inc. In 1950, he sued, O’Brien to quiet title and sued Smiley for breach of warranty. The trial court ruled that O’Brien had title to the one-half mineral interest and that Smiley was liable for breach of warranty. Smiley apparently defended on the basis of the statute of limitations, which our supreme court addressed as follows:
All of [Smiley’s] defenses of the Statute of Limitations, Laches and Statute of Nonclaims against the Thomases are without merit. There had been no constructive eviction, in effect, until the present suit was filed in December, 1950, wherein Mrs. Smiley was a party and the court held, as indicated, that O’Brien Bros, owned the 14 mineral interest in the land involved here and that the covenant of warranty in the above deed had been breached.
Id. at 121, 246 S.W.2d at 421 (emphasis added). Under Smiley, the grantees were not evicted until suit was filed and the court held that the third party owned the disputed interest. That should be the result in this case, and, contrary to the majority’s effort to distinguish Smiley, I do not believe that the “retroactive” application of Judge Foltz’s findings should change that.
I would reverse and remand to allow appellants to pursue their claim for breach of warranty. I am authorized to state that Judge Heffley joins in this dissent.