Smith v. Boatman

Cite as 2017 Ark. App. 488

ARKANSAS COURT OF APPEALS

DIVISION IV
No. CV-16-873

Opinion Delivered: September 27, 2017
IRVING T. SMITH, JR., AND
MALINDA F. SMITH APPEAL FROM THE CRAIGHEAD
APPELLANTS COUNTY CIRCUIT COURT,
EASTERN DISTRICT [NO.
V. 16LCV-12-27]

HONORABLE JOHN N. FOGLEMAN,
LONNIE DEAN BOATMAN AND JUDGE
FLORA JEAN BOATMAN
APPELLEES
AFFIRMED

KENNETH S. HIXSON, Judge

This case involves a boundary-line dispute in Craighead County. The appellants,

Irving Smith and Malinda Smith, own property adjacent to and directly west of property

owned by the appellees, Lonnie Boatman and Flora Boatman. When the Smiths purchased

their property in 2011, there was an old wire fence traveling north to south, which

encroached onto the Smiths’ land as surveyed and was about ten feet west of the surveyed

boundary line at the northern edge of their property and six feet west of the surveyed

boundary line at the southern edge (sometimes referred to herein as the “disputed strip of

land”). Irving Smith made this discovery after surveying his recently purchased property,
Cite as 2017 Ark. App. 488

and in early 2012 he tore down the wire fence and built a new fence near the location of

the surveyed boundary of the parties. 1

Shortly after Mr. Smith tore down the old fence and built the new one, the Boatmans

filed a petition to quiet title against the Smiths. In their petition, the Boatmans alleged that

the old wire fence had served as the boundary line between their property and the property

to the west for at least forty years. The Boatmans claimed ownership of the disputed strip

of land by adverse possession and boundary by acquiescence. The Boatmans asked that the

Smiths be ordered to remove the new fence and pay damages for removal of the Boatmans’

pecan tree that was located on the disputed strip.

After a bench trial, the trial court entered an order quieting title to the disputed strip

of land in the Boatmans. The trial court found that the old fence removed by Mr. Smith

in 2012 had served as a dividing line between the properties for at least forty years. The

trial court found that the Boatmans had acquired the disputed strip by both adverse

possession and acquiescence. The trial court ordered the Smiths to move the new fence to

the location of the old one and to pay $400 in damages for the destruction of the Boatmans’

pecan tree.

The Smiths now appeal, raising two arguments for reversal. First, the Smiths argue

that the trial court erred in reaching the conclusion that the Boatmans’ predecessors in title

had satisfied the hostility element of adverse possession. The Smiths also contend that the

1
The new fence was not exactly on the record boundary line but was about a foot
west of it.
2
Cite as 2017 Ark. App. 488

trial court lacked sufficient evidence to make a finding of boundary by acquiescence with

regard to the Smiths’ predecessor in title. We affirm.

We review quiet-title and boundary-line actions de novo, but we will not reverse

findings of fact unless they are clearly erroneous. Lafferty v. Everett, 2014 Ark. App. 332,

436 S.W.3d 479. 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. Barton v. Brockinton, 2017 Ark. App. 369, ___ S.W.3d ___.

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. Steele v.

Blankenship, 2010 Ark. App. 86, 377 S.W.3d 293.

Lonnie Boatman testified that he has lived on his property since he was five years old

when his father bought the land in 1967. Mr. Boatman’s father sold him the property in

1988, and Mr. Boatman and his wife Flora have lived there ever since. Mr. Boatman

testified that the old wire fence was built around 1970 and remained there until torn down

by Mr. Smith in 2012. Mr. Boatman stated that they maintained the land up to the fence

and grew a garden there every year. According to Mr. Boatman, no one other than him

had ever maintained his side of the fence since he bought his property in 1988. The previous

owner of the Smith property was Barton’s Lumber Company, and Mr. Boatman stated that

they never had any discussion about who owned the now-disputed strip of land.

Flora Boatman also testified that she had never seen any previous owner of the Smith

property exercise any control of or claim the now-disputed strip of land. Mrs. Boatman

stated that they used the disputed strip of land for gardening and had a pecan tree on the

3
Cite as 2017 Ark. App. 488

strip from 1981 until it was bulldozed by Mr. Smith in 2012. They used the pecan tree to

sell pecans in the fall and made about $100 per year. In the winter months, Mrs. Boatman

would clean the area around the fence and remove weeds.

Terry Wycoff is the Boatmans’ neighbor to the north and has lived there for more

than twenty years. When Mr. Wycoff first moved there, Barton’s Lumber Company was

in operation on the west side of the old fence which is now the Smith property. According

to Mr. Wycoff, the Boatmans used the disputed strip of land and bush hogged to the fence

about twice a year. The Boatmans’ garden went up to the fence. Mr. Wycoff stated that

Barton’s Lumber used its side of the fence to pile gravel and rocks. Mr. Wycoff said that

the Boatmans maintained their side of the fence and that Barton’s maintained its side, and

that he never knew of anyone claiming land east of the fence except the Boatmans.

Jim Taylor is the Boatmans’ neighbor to the south and has lived there since 1982.

Mr. Taylor testified that the Boatmans always controlled the disputed strip of land and had

a garden there every year. When Mr. Smith was tearing down the fence in 2012,

Mr. Taylor told Mr. Smith that he thought the fence was on Mr. Boatman’s property, but

Mr. Smith told Mr. Taylor to mind his own business.

Appellant Irving Smith testified that after he bought his property in 2011 he noticed

a survey marker to the east of the old fence in the Boatmans’ garden in what is now the

disputed strip of land. Mr. Smith then conducted his own survey and discovered that the

Boatmans’ garden extended past the surveyed property line. Mr. Smith then tore down the

old fence and built the new fence near his surveyed boundary line, and he stated that while

he was building the new fence Mr. Boatman never tried to stop him. Smith further testified

4
Cite as 2017 Ark. App. 488

that Mr. Boatman told him he might as well take out the pecan tree too. Mr. Smith testified

that although Mr. Boatman did tell him that his father had put up the old fence,

Mr. Boatman never claimed to own the land up to the fence until filing the lawsuit.

On rebuttal, Mr. Boatman testified that he never gave Mr. Smith permission to tear

down his fence or his pecan tree. In fact, Mr. Boatman stated that he called the local police

department when he saw the excavator tearing down the fence. Based on the foregoing,

the trial court found that the Boatmans owned the disputed strip of land by adverse

possession and by acquiescence.

The Smiths’ first argument on appeal is that the trial court erred in determining that

the Boatmans had acquired the disputed strip of land by adverse possession. In order to

prove ownership of land by adverse possession the party claiming possession must show

continuous possession of the property for seven years. Robertson v. Lees, 87 Ark. App. 172,

189 S.W.3d 463 (2004). The claimant must also prove that possession was actual, open,

continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner.

Washington v. Washington, 2013 Ark. App. 54, 425 S.W.3d 858. The Smiths specifically

contend that the actions of the Boatmans’ predecessor in title failed to satisfy the

requirements of being hostile and accompanied with an intent to hold against the true

owner. The Smiths suggest that the actions of the Boatmans’ predecessor are best described

as having constructed a fence that mistakenly strayed from the legal property line and

enclosed a portion of the neighboring land. Characterizing this as an unintended mistake

as to the location of the true boundary, the Smiths posit that it was insufficient to satisfy the

5
Cite as 2017 Ark. App. 488

hostility element or the intent to hold against the true owner as required of an adverse

possessor.

We hold that the trial court did not clearly err in finding that the Boatmans proved

each of the elements of adverse possession with regard to the disputed strip of land. While

the Smiths assert that the old fence was constructed to the west of the record boundary line

by mistake, there was no evidence presented to support that claim. The testimony showed

that Mr. Boatman’s father erected the fence around 1970, but there was no testimony that

his father intended for the fence to run along the record boundary line. And even had there

been testimony that Mr. Boatman’s father’s placement of the fence was a mistake, we have

held that if the intention is to hold property adversely, the statutory period for adverse

possession runs regardless of any mistake as to boundary or title. Dickson v. Young, 79 Ark.

App. 241, 85 S.W.3d 924 (2002). When a landowner takes possession of land under the

belief that he owns it, encloses it, and holds it continuously for the statutory period under

claim of ownership, without recognition of the possible right of another on account of

mistake, such possession is adverse and hostile to the true owner. Id. (citing Davis v. Wright,

220 Ark. 743, 249 S.W.2d 979 (1952); Butler v. Hines, 101 Ark. 409, 142 S.W. 509 (1912)).

In this case the Boatmans presented four witnesses who testified that the Boatmans

had claimed the disputed strip of land inside their fence, maintained it, and exercised control

over it for far longer than the required seven-year period. The Boatmans’ occupation of

the property included bush hogging, harvesting pecans, and maintaining a garden up to the

fence line. There was no evidence that the Smiths’ predecessors in title had ever claimed

ownership or tried to exercise control of the disputed strip of land between the time the

6
Cite as 2017 Ark. App. 488

fence was constructed in 1970 and the time the Smiths bought the property in 2011. It is

ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of

such a nature as one would exercise over his own property and would not exercise over the

land of another. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. We conclude

that the conduct of the Boatmans satisfied the hostility element of adverse possession and

demonstrated an intent to hold against the true owner, and therefore we affirm the trial

court’s finding that the Boatmans acquired title to the disputed property by adverse

possession.

The Smiths also argue that the trial court erred in finding that the Boatmans had

acquired title to the disputed property by acquiescence. However, because we affirm the

trial court’s finding of adverse possession, this issue need not be discussed.

Affirmed.

ABRAMSON and VAUGHT, JJ., agree.

Woodruff Law Firm, P.A., by: Jennifer Woodruff Douglas, for appellants.

Tiner, Cobb & Byars, by: Jarrett Matthew Cobb, for appellees.

7