ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

TOMMY R. SINGLETON,

APPELLANT

V.

HERMAN NELSON AND BETTY NELSON,

APPELLEES

CA01-465

DECEMBER 19, 2001

APPEAL FROM THE SALINE COUNTY CHANCERY COURT,

NO. E99-1225-1,

HON. ROBERT W. GARRETT,

JUDGE

AFFIRMED

Appellant, Tommy Singleton, appeals the chancery court's finding that an old fence line was the boundary by acquiescence between Singleton's land and land owned by the appellees, Herman and Betty Nelson. Singleton contends that the chancellor's decision is in error because there was no mutual conduct by the predecessor landowners implying an agreement over the boundary line. The chancellor's finding was not clearly erroneous; thus, we affirm.

The Nelsons and Paul and Mary Edmondson were neighbors who, for many years, owned separate tracts of land in Saline County that were separated by a small strip of land owned by Bob Hardin. In 1992, the Nelsons purchased the strip of land from Hardin, thereby creating a common boundary between the Nelsons and the Edmondsons. At the time of the Nelsons' purchase of the strip of land from Hardin, there was a question about thelegal description of the strip. Consequently, Hardin would only give the Nelsons a quitclaim deed to the strip, refusing to give a warranty deed.

An old fence is located on the land that the Nelsons purchased from Hardin and appears to run the length of the Edmondson/Nelson properties. The fence has aged to the point that trees have grown into it and it has been in a state of disrepair for some time. At issue is whether or not the fence is the boundary line between the two properties.

The Edmondsons sold their land to appellant Tommy Singleton in October 1997. Following Singleton's purchase, the land in question was cleared of pine trees and brush by Curtis Nalley. During this process, parts of the old fence were removed in order to remove the trees. After the clearing, the Nelsons attempted to build a new fence along the old fence line. Singleton objected to the location of the fence, so the Nelsons stopped building the fence and filed suit in 1999 to quiet the title. After a trial on the merits, the chancellor found that the location of the old fence was the boundary line by acquiescence between the two neighbors.

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 the definite and firm conviction that a mistake has been committed. Id.

Whenever adjoining landowners tacitly accept a fence line and, thus, apparently consent to it as their property line, it becomes the boundary by acquiescence. Hedger Bros. Cement & Mater., Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). 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 acquiesced 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 testimony presented by the Nelsons' witnesses support the trial court's finding that the fence was the boundary line by acquiescence. Michael Lyles, a First Electric lineman, testified that it was First Electric's policy to place poles on property lines; that there was a pin at the location at which a pole was replaced; that the new pole replaced an older pole that had been in place for as long as ten years; that it lined up with where the old fence had been; and that neither Singleton nor Nelson ever complained about the location of the poles.

Curtis Nalley testified that he was hired by Singleton to cut some pine trees on the property and clean up the timber. In order to clear some pine trees, he had to tear down part of the old fence. Nalley believed that he was to cut the trees on Singleton's land up to the fence and that Singleton would be compensated for those trees. Nalley also testified that he had a similar conversation with Nelson about timber, and that they agreed that Nelson wouldbe compensated for the timber cut from his side of the fence.

Bob Hardin, the Nelsons' grantor, testified that he was only on the property one time, and although he did see the fence, he could not recall its exact location. Hardin testified that it was his intention to convey to the Nelsons all land that he owned between the Nelsons and Edmondsons, Singleton's predecessor in title.

The testimony presented establishes that there was mutual conduct demonstrated during the clearing of the land. Neither party objected to recognizing the fence line for establishing the point to which they would each be responsible for the clearing of the trees. Each party agreed to receive payment for the timber on their respective side of the fence. A boundary by acquiescence is an implied agreement presumed to exist by landowners' tacit acceptance of a fence line or other monument as the visible evidence of their dividing line. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). There was no testimony presented that established any other boundary recognized by any of the predecessors. It is well established that this court defers to the trial court's discretion in matters of witness credibility. Barbed v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). This court will not second-guess credibility determinations. Id.

For the foregoing reasons, we hold that the chancellor's decision was not clearly erroneous.

Affirmed.

Crabtree and Baker, JJ., agree.