ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

CHESTER SHAW AND ELVA SHAW

APPELLANTS

V.

KEVIN APPLEGATE

APPELLEE

CA 00-1289

September 19, 2001

APPEAL FROM THE GARLAND

COUNTY CHANCERY COURT,

[99-1196-II]

HONORABLE TOM SMITHERMAN,

CHANCELLOR

AFFIRMED

This appeal is a result of a boundary dispute. Appellants argue that the chancellor erred in quieting title in favor of appellee and in finding that an existing fence was not the boundary by acquiescence. We affirm.

Appellee, Kevin Applegate, filed a petition to quiet title to land he purchased in 1999 that is contiguous on the south side of his property to property owned by the appellants, Chester and Elva Shaw. Appellee's deed indicates that the southern boundary of his property is the "centerline of Glazy Peau Creek," and appellants' deed states that their property lies south of the Glacier [sic] Peau Creek. Appellants filed an answer to appellee's petition and filed a counterclaim, alleging that a wire and post fence that has been in existence for over seventy years was the actual boundary line by acquiescence. After a hearing and after

personally viewing both properties, the chancellor quieted title of the disputed land in appellee and denied appellants' counterclaim that the boundary had been established by acquiescence.

At trial, appellants introduced into evidence, without objection from appellee, the evidentiary deposition of Lonnie Herron, a man who had lived in the area for about sixty years. He stated that Odell McNeely had once owned the property now owned by appellee, and appellants' property had once been owned by his sister, Bertha Neal, who had sold it to appellants. He said that the fence that appellants claimed to be the boundary line by acquiescence had been in existence for over seventy-five years and that during the time his sister owned appellants' property, she considered the fence to be the boundary line between the properties, not the creek. He did not know if Odell McNeely had told his sister that the fence was the property line, but he said that other people had told her that. He stated that the fence was put up because the McNeelys had cows on their property, but he testified that it was Mr. Shaw, not the McNeelys, who maintained the fence.

Appellee, Odell McNeely's nephew, testified that he purchased his property in May 1999 from Scott McNeely and Sandra Rhodes and their respective spouses. He said the deed stated that the south boundary of his property was the creek line. He said that he had played on the property and had ridden horses there as a child with his uncle. He admitted that Chester Shaw had told him that he owned to the fence row and that he knew there was a fence on the property, but he testified that he always assumed that the division line between

the two properties was the creek. He further stated that the deeds plainly show that the creek was the property line.

Travis McNeely, another of Odell McNeely's nephews, testified that he had grown up around and was familiar with the property in question and that as far as he knew, the boundary was the middle of the creek, and the fence was placed on one side of the creek because that area "washes out real bad" and would wash out a fence put in the creek. Travis testified that as a child he would go to the south side of the fence to wade and fish in the creek with his uncle's permission, and he did not know whether Mr. Shaw had objected to that or not. He also stated that to his knowledge, the creek had run next to the fence most of the time.

Lee McNeely, Odell McNeely's brother, testified that the property line was the middle of the creek. He stated that he had never seen Mr. Shaw mend the fence, and he had never heard Mr. Shaw state that he owned the property between the fence and the creek. He testified that if you had placed a fence in the creek bed, it would wash away because the creek gets out of its banks.

Sandra Rhodes testified that her grandparents had owned appellee's property, and in her opinion, the property line was the creek. She stated that she "grew up" knowing that the property line was the creek. She said that she had never spoken to Mr. Shaw about the property lines, and she had never seen him on the north side of the creek.

Scott McNeely, Sandra Rhodes' brother, testified that he and Sandra had sold the property to appellee. He stated that as he was growing up, the property line as he knew itwas the center of the creek, and he did not know of any dispute with regard to the property line. He admitted that there was a fence, but stated that it was there to keep the cattle contained.

Appellant Chester Shaw testified that "everybody," including himself, recognized the fence as being the property line, and that at one time, the creek had run straight along the fence, but the creek had changed direction over the years. He denied that the property line was the center of the creek. Mr. Shaw testified that both he and Odell McNeely had worked on the fence over the years to keep the McNeelys' cattle contained; that he himself had worked on the fence for over fifty years; that the fence had been in the same place for the last seventy years; and that except for replacing some barbed wire, the fence was in about the same condition. He testified that prior to appellee, no one had questioned his ability to do whatever he wanted from the fence line back. Mr. Shaw also stated that if the fence was in the creek, it would not stay there long.

Burl McEarl testified that he was familiar with the properties in controversy and the fence row between the two parcels of land. McEarl stated that he had had a conversation with Mr. Shaw and Mr. McNeely in which they both told him that the fence was the property line.

Gary Shaw, appellants' son, testified that the fence marked the boundary line between the two properties and that he and his family had worked on both sides of the banks of the creek probably every weekend. He testified that he did not remember the McNeelys working on the fence or on the property past the fence line, and he did not ever remember going onthe McNeelys' side of the fence. He stated that he had brush hogged over the creek, but not up to the fence.

Loyd Wynn, appellants' son-in-law, testified that he had been familiar with the property for about forty years, and it had always been his understanding that the fence was the property line. He said that he had never seen the McNeelys on the south side of the fence, and he had never seen the area between the fence and the creek brush hogged. He stated that if the fence had been placed in the creek, it would have washed out.

Our standard of review in boundary line cases is set forth in Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 222, 10 S.W.3d 926, 928 (2000):

Although chancery cases are reviewed de novo on appeal, we will affirm a trial court's finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, we are left, after considering all of the evidence, with the definite and firm conviction that a mistake has been committed.

(Citations omitted.)

In their first point on appeal, appellants contend that the chancellor erred in quieting title in appellee's name to the center line of Glazy Peau Creek. The crux of appellants' argument under this point is that the chancellor should have believed the testimony of Mr. Lonnie Herron, whom appellants classify as the "most neutral, most compelling, most believable, and certainly without question, the most knowledgeable witness of the `mutual recognition' of the predecessors in title to what was the boundary between these two parcels of land."

This argument is not persuasive. What appellants are essentially arguing is that this court should hold that the chancellor should have believed one witness, Mr. Herron, over the other witnesses presented at trial. This we cannot do. The appellate courts defer to the chancellor's superior position to assess credibility, and the chancellor may exercise his prerogative as trier of fact to resolve conflicts in testimony in favor of one party. Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000). In a case such as this, where there was contradictory evidence, we cannot say that the chancellor's decision was clearly erroneous.

In a similar vein, appellants also argue that the chancellor erred in not finding the fence to be the boundary between the properties by acquiescence. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence; a boundary line by acquiescence is inferred from the landowners' conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Hedger Bros., supra. The location of a boundary line is a question of fact, and whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros., supra.

In this case, the testimony of appellants and their witnesses are totally conflicting with the testimony of appellee and his witnesses as to whether the fence line was accepted as the boundary line between the property. The chancellor personally viewed the property and had the opportunity to listen to the testimony of all the witnesses, and he determined that therewas no boundary by acquiescence. We cannot say that this determination is clearly erroneous.

The facts in this case are similar to those in Council v. Clark, 246 Ark. 1110, 441 S.W.2d 472 (1969). In that case, under the description in the deed, title to the disputed property extended to the middle of a stream known as Hurricane Creek. A fence was constructed on the south side of Hurricane Creek. It was disputed as to whether the fence was a division of boundary fence. The trial court found that the fence was a fence of "convenience" instead of a boundary fence. In affirming the decision of the trial court, our supreme court stated that it was the appellants' burden to show that the fence was an agreed boundary and that because the evidence was in conflict, it could not be said that the chancellor erred in finding that the fence was not an agreed boundary line. Furthermore, the supreme court also held that the fence had not become the boundary line by acquiescence because it would have been impossible to build the fence in the middle of the creek, and the fence was built generally as close to the natural barriers of the creek as possible.

Likewise, in the present case, there was conflicting testimony as to whether the fence was a boundary by acquiescence. Furthermore, as in Council, there was testimony that it would have been impossible to construct a fence in the middle of the creek on the boundary line, and it appears that the fence was built as close to the natural barrier of the creek as possible. We cannot say that the chancellor's decision that the fence was not the boundary by acquiescence is clearly erroneous.

Affirmed.

Griffen and Neal, JJ., agree.