NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

LEONARD L. KROUT

APPELLANT

V.

KATHRYN M. BYRUM

APPELLEE

CA01-260

December 19, 2001

APPEAL FROM THE POPE COUNTY CHANCERY COURT

[NO. E99-76]

HON. RICHARD E. GARDNER, JR.,

CHANCELLOR

REVERSED AND REMANDED ON CROSS-APPEAL; DIRECT APPEAL DISMISSED AS MOOT

The parties to this chancery case own property sharing a common boundary. Appellant's property is to the east, appellee's property is to the west. Both properties are bisected by a road running east-west. A fence line lies a short distance to the west of the surveyed boundary line. The fence runs from the northern border of the property to the road. Appellee filed suit to quiet title to all property west of the deed line shown on the survey. Appellant counterclaimed, asserting that the fence line had become the boundary by acquiescence. The trial court found that the fence line had become the boundary by acquiescence to the north of the road. This appeal and cross-appeal followed.

Appellant argues that the trial court erred in failing to find that the boundary by acquiescence also extended to the south of the road. On cross-appeal, appellee contends that the evidence is insufficient to establish a boundary by acquiescence at all.

We limit our discussion to the cross-appeal because we find it to be dispositive. Appellee argues that there is insufficient evidence to support the chancellor's finding of boundary by acquiescence. We agree, and we reverse.

A boundary by acquiescence arises from the actions of the parties; such a boundary is in the nature of an implied agreement presumed to exist by the long acquiescence of adjoining landowners who tacitly consent to a fence line or other monument as the visible evidence of the dividing line between their properties. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). Although the acquiescence need not occur over a specific length of time, it must be for "a long period of time." Most boundary by acquiescence cases involve time periods of at least twenty years. Id.

Whether a boundary line by acquiescence exists is a question of fact to be determined upon the evidence in each individual case. Hedger Brothers Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). Chancery cases are reviewed de novo on appeal, but we will reverse a trial court's finding of fact with regard to the location of a boundary line only if the finding is clearly erroneous. See Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). 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. Id.

Based on our de novo review of the record before us, we are convinced that the chancellor clearly erred in finding that a boundary by acquiescence existed. It appears from the record that the fence in question was built in 1961 by Bill Jones, who owned the property until 1989. At the time the fence was built, a relative owned the adjoining parcel. Mr. Jones testified that the area where the fence was located was rocky, scrub-timberland that was unsuitable for agricultural purposes, and that he erected the fence so he could run cattle on the property. Because the soil was rocky, it was very difficult to erect posts, and the fence was therefore simply nailed to convenient trees, meandering near to but inside the property line.

The maintenance for many years of a fence dividing pasture land or cultivated fields would strongly indicate the existence of a boundary by acquiescence, but there is much less reason to suppose that the landowners meant to erect a division fence consisting of a fence that had been nailed to trees in a timbered area. Hoskins v. Cook, 239 Ark. 285, 388 S.W.2d 914 (1965). In any event, the mere erection and maintenance of a fence at or near the boundary line between adjoining landowners is not enough, in and of itself, to establish a boundary line by agreement and acquiescence. Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981). The crucial question in each case is one of intention: did the adjoining landowners intend to recognize the fence as the boundary? Id. Mr. Jones testified that he never intended the fence as a boundary line. More tellingly, the appellant's actions indicate that he himself did not recognize the fence as the boundary. When Mr. Krout decided to build a house within twelve feet of the surveyed property line in 1995, he did not assert hisright to the property up to the fence line, and instead attempted to buy that property from Bill Jones. We hold that the chancellor erred in finding that a boundary by acquiescence had been established, and we reverse. In light of this conclusion, we need not address appellant's argument on appeal.

Reversed and remanded on cross-appeal; direct appeal dismissed as moot.

Stroud, C.J., and Griffen, J., agree.