ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

SUZANNE GREENHAW HARGIS and JANA GREENHAW HERBIG

APPELLANTS

V.

H. G. GRAHAM FARMS, INC. and AGRONOMICS LIMITED PARTNERSHIP,

APPELLEE

CA01-35

SEPTEMBER 19, 2001

APPEAL FROM THE JACKSON COUNTY CHANCERY COURT,

NO. E99-89,

HON. TOM HILBURN, CHANCELLOR

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Appellants Suzanne Greenhaw Hargis and her sister, Jana Greenhaw Herbig (referred to herein as the Greenhaws), as beneficiaries of the Greenhaw Family Trust, claimed to have acquired title to land based upon the establishment of a boundary by acquiescence and adverse possession against Agronomics Limited Partnership and H.G. Graham Farms, Inc. The chancellor quieted title in the Greenhaws as against H.G. Graham Farms, Inc., and H.G. Graham Farms has not appealed that decision. The chancellor ruled that the Greenhaws had not acquired title to any of Agronomics' land, but did grant to the Greenhaws a prescriptive easement for the use of a farm road on the disputed land. Agronomics has not appealed the chancellor's order granting the prescriptive easement. However, the Greenhaws appeal the chancellor's decision denying their claim to any of Agronomics' land. For reasons set forth hereunder, we affirm in part, reverse in part, and remand this matter to the trial court for theentry of an order consistent herewith.

I. Facts

The west line of the deeded boundary line of the Greenhaw farm is the east boundary of Agronomics' deeded boundary line. West of the north part of this common boundary line, there are a tree line and portions of an old fence row. East of this tree line and old fence row is a ditch. East of the ditch is a farm road. Both the ditch and the farm road lie within the bounds of Agronomics' deeded boundary line. In 1988, Denton Greenhaw, who was then the trustee of the Greenhaw Family Trust, moved power-line poles, originally located on the Greenhaws' land, south of and in line with the old fence row. Denton Greenhaw, as said trustee, filed suit in May 1999, seeking to quiet title in the trust to the land situated between its deeded west boundary line and the tree line and old fence row. In its response to the petition, Agronomics disclaimed any interest in the land east of the farm road. When Denton Greenhaw died in September of 1999, his daughters, as sole beneficiaries of the trust, were substituted as plaintiffs.

II. Standard of Review

The location of a boundary line is a question of fact. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). In reviewing a chancery court's findings of fact, we give due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight accorded their testimony. Id. We will not reverse a chancellor's finding of fact in a boundary line dispute case unless the finding is clearly erroneous. Id. A finding

is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id.

III. Boundary by Acquiescence

Whenever adjoining landowners tacitly accept a fence line and thus apparently consent to it as their property line, it becomes the boundary by acquiescence. Id. 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. Id. When the adjoining landowners occupy their respective premises up to the line they acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus acquiesced in is not the true boundary, although it may not be. Id.

The Greenhaws contend that the west boundary of the Greenhaw property is the old fence row and tree line, based upon the establishment of a boundary by acquiescence. On this point, the evidence was in sharp dispute. Various witnesses for the Greenhaws testified that they believed the fence row was the separation between the two farms. Stephen Graham and Glenn Thompson, former and current farmers of the Greenhaw property, respectively, testified that Agronomics had never farmed up to the farm road. On the other hand, Dan James, the current Agronomics tenant, testified that he had farmed "close to the road, but not all the way to the road." Paul Combs, who farmed the Agronomics property from 1976 to 1989, testified that, where possible, they farmed close to the road. He testified that this was possible in the southern end because the tree line and old fence row were located primarilyon the northern portion of Agronomics' farm.

The Greenhaws also argue that Agronomics, demonstrated its acquiescence in the boundary line through its acceptance of the movement of power-line poles to a location in line with the old fence row. The Greenhaws contend that the moving of the power-line poles provided notice of their intent to claim the land and that Agronomics' farm manager, Bronson Van Wyck, was aware because he discussed the impact of the move with Paul Combs. Mr. Van Wyck did not testify. Paul Combs testified that Agronomics did not object to the moving of the poles because they did not interfere with Agronomics' farming. He also testified that the poles only serviced an Agronomics well.

In Ward v. Adams, this court affirmed the chancellor's denial of a boundary by acquiescence. Ward contended that the boundary between his and Adams's land was an old fence line and four stumps that were in line with an oak tree. To the contrary, Adams contended that the boundary line was thirty feet beyond this line. A survey supported Adams's contention and "scores" of witnesses testified. Witnesses for Adams who had farmed the land testified that everyone recognized the old fence line as the boundary and that the land had been farmed for many years following this line. Contradictory testimony came from Ward and his witnesses, who said that the boundary line was established in line with the oak tree. This court stated that "this essentially came down to a question of credibility and comparison of surveys," and we held that the chancellor's denial of Ward's boundary by acquiescence claim was not clearly erroneous. Id.

The testimony in the present case is analogous to this court's characterization of thetestimony in Ward in that witnesses testified to markedly different versions of whether the old fence row was or was not the established boundary line. Considering the deference we give to the chancellor who is in a superior position to determine the credibility of witnesses and the weight to be accorded to their testimony, Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999), we cannot say that the chancellor erred in denying the Greenhaws' claim that a boundary was established by acquiescence.

IV. Adverse Possession

a. Land east of the farm road

Although we find no error in the chancellor's decision that the Greenhaws were unsuccessful in establishing their claim to a boundary by acquiescence, we take a different view with respect to the Greenhaws' claim by adverse possession of that portion of the land that lies west of their deed description and east of the farm road.

In their response to the Greenhaw' petition, Agronomics disclaimed any interest in land lying to the east of the farm road, which is within their deeded description. There was uncontradicted testimony that the Greenhaws had farmed the land east of the road for many years. This farming use of the land by the Greenhaws indicated a hostile intent to claim that land as their own. Notwithstanding Agronomics' disclaimer and the undisputed evidence of the Greenhaws' possession and use of the land east of the farm road for more than seven years, the chancellor denied the Greenhaws' claim to the land east of the farm road and held that the descriptions contained in the parties' respective deeds established the boundary of their respective lands.

Adverse possession is governed by both common and statutory law. Arkansas Code Annotated Section 18-11-106(a)(2) (1997) requires a party to hold color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven years, and during that time, to have paid ad valorem taxes on the contiguous property to which the party holds color of title. In the present case, the evidence established that the Greenhaws owned contiguous property to the disputed land and that they had paid ad valorem taxes on their contiguous property.

Adverse possession requires that the possession be held for more than seven years and that such conduct be visible, notorious, distinct, exclusive, hostile, and with the intent to hold adversely against the true owner. Hicks v. Flanagan, 30 Ark. App. 53 782, S.W.2d 587 (1990). The proof required as to the extent of possession and dominion may vary according to the location and character of the land. Anderson, supra. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Id. Whether possession is adverse to the true owner is a question of fact. Id. Possession of land is sufficiently open, visible, and notorious for adverse possession if the acts of ownership of the adverse possessor are such that the true owner of the land would have knowledge of the adverse possession. Id. at 172, 986 S.W.2d at 119.

Because Agronomics disclaimed the portion of land east of the road and because the uncontradicted evidence supports the Greenhaws' claim of adverse possession of that partof the disputed land that lies east of the farm road, the chancellor's ruling denying the Greenhaws' claim to the land east of the farm road was clearly erroneous, and we reverse that part of the chancellor's order.

b. The farm road and the land west of the farm road.

We do not find that the chancellor was clearly erroneous in denying the Greenhaws' claim of adverse possession to the farm road and that portion of the land that lies west of it. The land west of the farm road was admittedly not farmed by the Greenhaws. Glenn Thompson, the current Greenhaw farmer, testified that he plants crops up to the field road. Ms. Hargis, the appellant, testified that the Greenhaws had never farmed the west side of the road. Ricky Bradley, a tenant farmer on the Greenhaw farm until 1985, testified that the Greenhaws' crops never extended west beyond the field road.

The Greenhaws' main argument is that their act of moving the power-line poles to a location in line with the old fence row was an act of dominion and control over all property west of the fence-row and that by that action, Agronomics was given actual notice of the Greenhaws' claim to the land up to the old fence row. The Greenhaws further argue that Agronomics has waived its right to protest because it did not do so within seven years after movement of the poles.

However, there was conflicting testimony as to the intent underlying the moving of the poles. Stephen J. Graham, the Greenhaw farmer at the time the poles were moved, testified that Denton Greenhaw never expressed any intent to him to move the poles in order to establish a new boundary and that the poles only serviced an Agronomics well. He alsotestified that he was never told by a Greenhaw to take any land by adverse possession. Henry Gustave Graham, who helped water the Greenhaw land, testified that the power-line poles were moved to service the well on Agronomics land.

James Hargis, husband of appellant Suzanne Greenhaw Hargis, testified that the Greenhaw farm had "continuously laid claim" to the land west of the road, but that he never gave notice of the claim until 1998 when he sent a letter to Agronomics' manager, Bronson Van Wyck, expressing displeasure about Agronomics' misuse of the farm road. Even if this letter could be considered as notice of an adverse claim by the Greenhaws, the letter written in 1998 falls short of meeting the seven-year period required for adverse possession.

The chancellor was left with credibility and weight determinations as to whether the movement of the power-line poles constituted the requisite hostile taking. We cannot say that the chancellor's ruling against the Greenhaws on the adverse possession claim as to the farm road and the land west of it was clearly erroneous.

The Greenhaws argue that they must own the road because it is illogical for them not to, given the land's characteristics. The road turns to the right in the north, away from Agronomics' farm. At times, this road provided little or no access to the land west of the road due to the ditch to the west of the road. While such placement of the road may seem illogical, the Greenhaws' establishment of the elements of adverse possession was found lacking and we cannot say that such finding was clearly erroneous.

Furthermore, the Greenhaws cannot establish adverse possession of the farm road because of their failure to establish the exclusive use element of adverse possession. Theroad, as testified to by both parties' witnesses, was used by both the Greenhaws and Agronomics. Moreover, Stephen J. Graham of the Greenhaw farm testified that no one had ever claimed exclusive right to use the road and that the road's common usage by anyone was open and obvious. Thus, the chancellor's finding that the Greenhaws' adverse possession claim must fail was not clearly erroneous as to the farm road.

We affirm the chancellor's ruling as to the farm road and the land west of the farm road. We reverse the chancellor's ruling denying the Greenhaws' claim to land east of the farm road up to their deeded property line, which was disclaimed by Agronomics. As no property description of this parcel of land between the farm road and the Greenhaws' deeded property line is in the record, we remand for further proceedings to determine the description of the disclaimed land and direct the chancellor to quiet title to such land in the Greenhaws.

Affirmed in part, reversed in part, and remanded.

Robbins and Griffen, JJ., agree.