Joey A. Hipp, Susan M. Hipp, and Kent J. Hipp v. Rex Cottrell and Brianna Cottrell

Cite as 2025 Ark. App. 179
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-23-680

JOEY A. HIPP, SUSAN M. HIPP, AND Opinion Delivered March 19, 2025

KENT J. HIPP
APPEAL FROM THE FAULKNER
APPELLANTS
COUNTY CIRCUIT COURT
[NO. 12CV-20-107]
V.
HONORABLE HOLLY MEYER, JUDGE
REX COTTRELL AND BRIANNA
COTTRELL AFFIRMED
APPELLEES

CINDY GRACE THYER, Judge

Joey A. Hipp, Susan M. Hipp, and Kent J. Hipp appeal a Cleburne County Circuit

Court order that quieted title in certain real property to Rex Cottrell and Brianna Cottrell.

On appeal, the Hipps argue that we should reverse the order and remand for an award in

their favor as owners of the disputed real property on the basis of boundary by acquiescence.

We affirm.

I. Facts and Procedural History

The Hipps are fee-simple owners of certain real property in Cleburne County, which

they own as joint tenants with right of survivorship. Their property is bounded to the north
by property owned by Brianna and Rex Cottrell.1 At one time, an old barbed-wire fence ran

from east to west at a slight angle on the Cottrells’ property. The fence was overgrown, and

the wire was strung on wooden fence posts and between trees. The distance between the

fence and the Cottrells’ deeded property line to the south varied from 18.90 feet on the

eastern end to 51.66 feet on the western end and encompassed approximately half an acre.

In December 2018, the Cottrells removed the fence. In anticipation of erecting a new

fence on the deeded property line, they had the property surveyed, removed some trees, and

marked others for removal.

In June 2020, the Hipps filed a complaint for trespass and to quiet title, claiming the

old barbed-wire fence established a boundary by acquiescence and that they owned the strip

of land south of the fence, making the Cottrells’ removal of trees improper. The Cottrells

moved to dismiss the complaint, alleging that it failed to state facts upon which relief could

be granted, or in the alternative, they requested a more definite statement.

The Hipps responded to the motion and filed an amended complaint for trespass and

to quiet title. The amended complaint attached the warranty deeds to the two parcels, a

survey showing the location of the fencing, and a picture of the fence before its removal. The

Cottrells answered the complaint, generally denying the allegations contained therein and

renewing their previous motions to dismiss or for a more definite statement.

1
The parties purchased their respective properties within a month of each other, with
the Cottrells’ deed being filed in February 2015 and the Hipps’ deed being filed in May
2015.

2
In December 2022, the Cottrells filed a counterclaim seeking to quiet title in the

disputed strip of land in them and for a declaratory judgment that their warranty deed was

valid. The Hipps moved to strike the counterclaim as untimely, which the Cottrells denied.

The court denied the motions after a hearing on the motions to dismiss and to strike, and

the Hipps answered the counterclaim, denying that the Cottrells were the owners of the

disputed strip of land.

Multiple witnesses were called to testify at trial.

Kent Hipp testified that he and his parents purchased the property to the south of

the fence in May 2015 and that he had lived on the property since they purchased it. He

stated that the Cottrells’ predecessors in interest, Alton and Margie Hipp,2 had owned the

Cottrell property for sixty to seventy years before selling their interest to the Cottrells.

Kent claimed that, although no survey had been done, he walked the property before

he bought it. At the time, there was an old barbed-wire fence at the north end of the property.

He believed the fence to be the property line because the property on one side of the fence

was wooded and the other side was pasture and because the fence had been in existence long

enough for it to have grown into the trees. He also claimed there was a corner marker in the

fence row from an older survey, but when the fence was removed in November or December

2018, new survey markers were placed. He admitted he had not been told that the old fence

2
Margie and Alton Hipp were Kent’s great aunt and uncle. The Cottrells allowed
them to continue to live on the property until their deaths.

3
was the boundary line and that his belief that it was the boundary was his own subjective

belief. He further admitted that after he moved into the house, he did nothing to maintain

the property near the fence line.

Kent then testified that he and his father inspected the area after the new survey lines

had been marked.3 The survey markers had been placed fifty feet from where the old fence

had been located. Kent discussed the survey markers with Rex, and Rex initially said he was

going to build the new fence in the location of the old, but he later stated he had decided to

place the fence on the survey line.

Kent claimed that the Cottrells had never disputed that the fence was the boundary

line until they had the property surveyed. He believed the Cottrells had two surveys done—

one before the fence was removed and one after. He stated he was unaware of two prior

recorded surveys that were consistent with the most recent survey, which had identified the

Cottrells as owning the disputed strip of land.

As for the use of the property, Kent testified that his great aunt and uncle had raised

chickens and grazed cattle on the property and that the fence was probably built for the

purpose of containing their cattle. He acknowledged that people routinely erected fences to

keep in their cows and that fences are not always placed on the property line. He was not

aware whether his great aunt and uncle had identified the fence as the boundary line.

3
The Cottrells later placed a temporary fence twenty to thirty feet south of the old
fence line. Kent assumed the fence was placed so that Rex could corral his cows since he still
used the property for grazing.

4
Because the original fence had been removed, Kent hired surveyor Perry Sayles to

establish where the old fence line was. Kent did not have a full survey prepared, however,

because he wanted a survey of only the disputed strip of land. That survey was prepared using

the location of the barbed wire that had grown through the trees.

Perry Sayles testified that he prepared the survey for Kent depicting the old fence line

and the contested strip of land. He stated he did not disagree with the legal boundary line

contained in the previous surveys that were created on the deed description. He further

testified that he frequently sees barbed-wire tree-line fences and acknowledged that fences

were not always located on the actual boundary lines. He stated that fences are sometimes

placed to corral cattle to prevent the cows from getting into the trees. Accordingly, its

placement may or may not designate a boundary. He recommended that every landowner

obtain a survey before purchasing property for this reason.

Blake Thomas testified that he prepared the Cottrells’ most recent survey. He said

that his survey corresponded to the two prior surveys that had been done on the property;

however, the old fence line had been removed before he prepared his new survey. He stated

that he regularly sees old tree-line fences in his line of work, and they rarely if ever actually

fall on the boundary line. He stated that those types of fences are commonly used to keep in

cattle. Also, using barbed wire around trees saves time and money. He did admit that people

frequently agree to use a fence line as a boundary despite what a survey may show.

Michael Hipp testified that Alton and Margie were his parents, and he grew up on

what is now the Cottrell property. He testified that he is familiar with the old fence line. He

5
testified that his parents raised chickens and grazed cattle on the property. While he testified

that a tree line to the east of the property had always been known to be the boundary between

his parents’ property and his aunt and uncle’s property, he did not say the same about the

old southern fence line. He stated that his dad built the fence and that, to his knowledge,

nobody from the north side of the fence had used the area to the south of the fence for any

reason. He stated he was uncertain whether the Hipps’ predecessors in interest believed the

fence to be the boundary line between the two properties.

Joey Hipp testified that he, along with his wife and Kent, owns the property to the

south of the old fence line but that only Kent lives on the property. He said he was very

familiar with the Cottrells’ property because the property had been owned by family that he

would visit and because he also squirrel hunted in the area. As a result, he was very familiar

with the old fence row, and he believed the fence line was the boundary line to the property.

He stated that he spoke with Rex when he discovered the survey markers. The initial

survey markers were only eight feet from the old fence line, and at that time, Rex was

thinking of replacing only the fence line. Then, after getting another survey done, Rex

decided he was going to move the fence fifty feet from the fence line into what Joey believed

was his property. Joey told Rex that the fence had been the property line for as long as he

could remember. However, Joey admitted that the people he purchased his property from

never said that the fence line was the property line.

Dale Galloway, who had owned the Hipp property at one time, also testified. Dale

stated that he never considered the old fence row to the be the property line; he never agreed

6
with anyone that it was the property line; and he never treated it as the property line. He

testified that he never discussed whether the fence line was the property line with either

Margie or Alton Hipp, and he never told the Hipps’ immediate predecessors in interest that

the fence line was the boundary line.

Vicki Stark testified that she had been interested in buying the Hipp property before

they purchased it. She stated that when they viewed the property, no one made any

representations about where the boundary of the property was.

Rex Cottrell was the last witness. He testified that before he bought the property from

Margie and Alton Hipp, he owned an adjoining piece of property. He stated that he had very

little interaction with Kent or Joey before the dispute over the fence. He stated that he

decided to tear down and build a new fence because the old one was worn out and had holes

in it, and he was afraid his cows would get tangled up in it; tearing it down was a safety issue.

He claimed that the old fence was just there to hold the cows in; he did not believe it was

the property line; and he had never treated it as such. He said that he had the survey done

because he did not believe it was on the property line. He never saw his neighbors maintain

or hunt on the property near the fence.

Rex did not dispute that the fence had been there a long time, he just disputed that

it was considered the property line. He stated that when he first purchased the property, he

hired someone to do some dozer work, and he had the person move the rock monuments at

the corner of the property. He did not know the significance of those rocks at the time. He

said there was also a piece of rebar in the fence row, but it got removed and misplaced when

7
he had the dozer work done to build a hay barn. That is when he hired Thomas to complete

a survey so he could find the corner again and so he could build his fence.

Rex stated that he maintained the pasture side of the fence where he grazed his cattle,

but he did not maintain the other side of the fence. He did place no-trespassing signs on his

property before the lawsuit was filed. As for the fence, he said that people build fences into

the trees because it is easy and saves time and money. Those types of fences are common and

are built to keep animals from roaming. He testified that he had other fences on his property

to contain his cattle, and they were not boundary lines either.

He further testified he never treated the old fence as his boundary line. He explained

that, at one point, he had a deer stand in the fence line with its feet over on the south side

of the fence. He could not say how long it was there, because he moved his deer stands

frequently but thought that one had been there two to three years. He stated that he also

hunted to the south of the fence line and that the Hipps’ predecessors in interest would let

him hunt on their property. He stated that they never took any action to lead him to believe

that they intended for the fence to be the property line. He stated he never agreed for the

property line to be anything other than the survey line. As for the Sayles survey the Hipps

had prepared, he disputed its accuracy and explained how it was inaccurate.

On cross-examination, Rex testified that he never spoke to Margie or Alton Hipp

about the fence being the boundary line, and he did not have a survey done before he

purchased the property. He further admitted he had a survey done before the Thomas survey,

but never got a physical document of the survey. The surveyor placed a post approximately

8
ten to fifteen feet from the fence line. Rex stated he had to get a second survey because he

could never get back in touch with the first surveyor.

Multiple pictures and Google Earth photographs were introduced depicting the

properties over time.

On May 17, 2023, the circuit court issued a letter opinion finding in favor of the

Cottrells. The court determined that the Hipps had not met their burden of proof on their

claim of boundary by acquiescence and denied their petition to quiet title and request for

damages in trespass. The court then granted the Cottrells’ petition to quiet title and declared

their deed valid and free of any cloud or claim by the Hipps.

In support of its decision, the court found that the Hipps had proved the existence

of the old fence, which was the crux of the suit. What they failed to prove, however, was that

for a significant period of time, landowners of both sides of the fence acquiesced to the fact

that the fence was the boundary.4 The court noted that the Cottrells clearly did not acquiesce

and testified that they had used the disputed strip south of the of the old fence to hunt. The

court did not hear from the Cottrells’ predecessors in title because they unfortunately were

deceased. The Hipps’ witnesses testified to the existence of the fence but not to the intent of

the Cottrells’ predecessors in interest regarding the boundary line. The Hipps testified that,

4
The court also indicated its dismay that the Cottrells or their agents had removed
survey markers. The court noted that such conduct was unacceptable, whether or not
intentional. The court stated that, while it would never approve of a party benefiting from
bad conduct, the court found that the outcome of this case would not be any different under
the circumstances of this case.

9
during their ownership of the adjoining property, they did not possess or occupy the disputed

strip south of the fence. Mr. Galloway, the Hipps’ predecessor in title from 2000–2005,

testified that he did not think the fence was the boundary line; rather, he thought the survey

line was the boundary. The court, having considered the foregoing evidence, found that the

Hipps’ belief that the fence was the boundary was their own unilateral, subjective belief and

was not supported under the facts or the law.

A final order reiterating the court’s findings of fact and conclusions of law was filed

on June 26, 2023, and the Hipps filed a timely notice of appeal from that order. On appeal,

the Hipps challenge the circuit court’s finding that they had failed to prove a boundary by

acquiesce and its quieting of title in favor of the Cottrells.

II. Standard of Review

We recently reiterated our standard of review in quiet-title and boundary-line actions

as follows:

We review quiet-title and boundary-line actions de novo. Because the location
of a boundary is a disputed question of fact, we will affirm the trial court’s finding
unless it is clearly erroneous. A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court on the entire evidence is left with a definite
and firm conviction that a mistake has been committed. In reviewing a trial court’s
findings of fact, the appellate courts give due deference to the trial court’s superior
position and the weight to be accorded the testimony.

William N. Gillison Revocable Tr. v. William W. Bunker & Claudia M. Bunker Joint Revocable Tr.,
2024 Ark. App. 136, at 9, 685 S.W.3d 306, 311 (citations omitted).

III. Discussion

10
The Hipps submit that the record before us contains undisputed evidence that a

barbed-wire fence on the Cottrells’ property acted as the boundary line between their two

contiguous pieces of property and that they are entitled to the property between the fence

and the property line through boundary by acquiescence. In support of their claim, they

point to the following “undisputed” facts introduced at trial: (1) Rex Cottrell acknowledged

by his actions that the fence was the boundary line; (2) the fence had been in place for as

long as sixty years; (3) a surveyor’s pin and flag were located in the old fence row before

Cottrell removed it, indicating that, at some time in the past, a survey had located the fence

as a boundary; (4) Google Earth aerial photographs of the property in dispute, spanning the

years from 1994–2020, established that there was an old fence line and that the Cottrells’

property on the north side of the fence was consistently mowed for pasture, whereas the

Hipps’ property on the south side of the fence was consistently brush and trees; (5) Michael

Hipp, the son of the Cottrells’ predecessors in interest who grew up on the property, testified

that the fence was always considered the boundary line between the ownership of the two

properties; and (6) Joey Hipp, the nephew of the Cottrells’ predecessors in interest who grew

up hunting in the area, testified that the fence was considered the boundary line between

the two properties.

The Hipps claim that the evidence clearly shows that the boundary between the

parties should be inferred from the parties’ long-continued acquiescence and their actions

relative to the line.

11
Boundary by acquiescence may arise “without the necessity of adverse use to the line.”

William N. Gillison Revocable Tr., 2024 Ark. App. 136, at 10, 685 S.W.3d at 312 (quoting

Myers v. Yingling, 372 Ark. 523, 530, 279 S.W.3d 83, 89 (2008)). A boundary by acquiescence

arises from conduct of adjoining landowners over many years that implies an agreement to

treat some visible marker as their boundary, wherever the true boundary might be. Id. A

boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or

some other monument tacitly accepted as visible evidence of a dividing line. Id. Under these

circumstances, the adjoining owners and their grantees are precluded from claiming that the

boundary so recognized and acquiesced in is not the true one, although it may not be. Id.

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. 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 line. Id.

Boundaries are frequently found to exist at locations other than those shown by an

accurate survey of the premises in question and may be affected by principles of acquiescence

and adverse possession. See Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). A

fence, by acquiescence, may become the accepted boundary even though contrary to the

survey line. Id.

Even if there never was an express agreement to treat a fence as the dividing line

between the two parcels of land, such an agreement may be inferred by the action of the

12
parties. See Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969). Thus, tacit acceptance of

a fence line or other monument as the visible evidence of the dividing line for a long period

of time manifests apparent consent. See Summers, supra. The property owners and their

grantees are then precluded from claiming that the boundary line thus recognized and

acquiesced in is not the true one, although it may not be on the survey line. Id.

Here, on a de novo review of the record, the court’s findings of fact are not clearly

erroneous. It is undisputed that there was an old barbed-wire fence through the trees

approximately fifty feet from the surveyed boundary line. There was absolutely no testimony

that any of the parties’ predecessors in interest informed the parties that the fence was the

boundary line. In fact, one of the predecessors in interest, Dale Galloway, testified that he

did not consider the fence to be the boundary line. In their brief, the Hipps claim that

Michael considered the fence line to be the property line, but his testimony was not quite so

clear. Instead, he merely testified that he was aware of the fence line and that it had been

there a long time. Additionally, multiple witnesses testified that fence lines, such as the one

at issue here, were frequently placed in tree in lines to contain cattle because it was cheaper

and easier. Both Cottrell and his predecessors grazed cattle on the property. The only

persons to testify that they considered the fence to be the boundary line were the appellants,

Kent and Joey.

Having considered the entire record on appeal, we cannot say that the circuit court’s

findings were clearly erroneous. Accordingly, we affirm.

Affirmed.

13
HARRISON and TUCKER, JJ., agree.

Richard Mays Law Firm PLLC, by: Richard H. Mays, for appellants.

Maureen Harrod, for appellees.

14