### Cite as2013 

### Ark. App. 484



# ARKANSAS COURT OF

# APPBALS

DIVISION 

### IV No. CV-13-29



### CECIL JAMES 

### REYI\OLDS and 

### DONNA REYI\OLDS, His\Wife; and 

### CECILJ. RE,YNOLDS, SR. 

### APPELT,\NTS V. 

### GFM, 

### LLC APPELLEE opinion Delivered Septembet 71,,20'13 

### APPEAL FROM

### THE INDEPENDENCE COUNTY CIRCUIT COURT [No. CV-2010-300] 

### HONORABLE 

### ADAM I{4zu<EY, JUDGE AFFIRMED 

### IN PART; 

### REVERSED 

### IN PART 

### LARRY D.

### VAUGHT, Judge 

### In this boundary-line dispute, appellants Cecil James Reynolds, 

### Donna Reynolds, and 

### Cecil 

## J. Reynolds, 

### Sr. (collectively 

### "the Reynoldses"), appeal

### the dectee 

### enteted

## by the Independence County 

### Circuit Court, finding in favor 

### of appellee 

### GFM, 

### LLC (GF1\0.r 

### Thetrial court found that (1)the Reynoldses failed 

### to prove that afence 

### line on 

### GFM's property was a boundary by acquiescence, and (2) 

### GFM was entided to a

### ptesctiptive easement 

### in aroad on the Reynoldses' propertF. 

### On appeal, the Reynoldses challenge 

### both findings, contending 

### that the 

### trial 

### court clearly erted 

### in denying 

### their claim 

### for a bounduty by acquiescence and 

### in awatding 

### GFM a prescriptive easement 

### in the road 

### on their property. 

### We 

### affirm the former finding; howevet, we feverse the latter.



### lMembets 

### of the 

### Pteston Gtace 

### family are the 

### principal officets 

### of GFM.

### GFM and the Reynoldses are adjoining landownets in the Cave Cteek community located



### in Independence 

### County, Arkansas. 

### Pertinent 

### to this appeal 

### is ptoperty that 

### GFM owns 

### in Section 10,

### Township 14 

### North, Range 6 !7est. Due south of this property is aneighty-acre 

### ttact 

### of land owned by the Reynoldses, 

### which is located 

### in Section 15,

### Township 14 

### North, Range 6West. 

### North of the Reynoldses'boundary line,

### within GFM's property, there is afence. 

### The
area 

### north 

## of the Revnoldses' 

### boundalv 

### line and south 

## of GFM's

## fslsg-ths properw in 

### dispute-is approximately eighty 

### to one-hundted acres. 

### GFM initiated this case 

### in Novemb 

### er 201.7 

### byfiting a

### complaint to quiet tide and

### fot a 

### temporary restraining 

### order against 

### the Reynoldses, 

### alleging 

### that they, 

### without GFM's permission, 

### cut timber and 

### built fences and toads 

### on its 

### ptoperty and blocked 

### its access 

### to its 

### property. In response, the Reynoldses filed an answer and countetclaim alleging that the 

### proper boundary line between the parties wasthe fence line on

### GFM's ptoperty. The Reynoldses alleged that 

### the fence wasthe boundary 

### by acquiescence, and they sought legal tide 

### to the ProPerty 

### in dispute. 

## At trial, GFM ptesented 

### the testimony 

### of Patrick Lemley, a licensed surveyor, 

### who testified 

### that

## in 2009 a 

### member 

### of the Grace family asked 

### him 

### to locate 

### the boundary line 

### between 

### the parties' 

### propety. Lemley concluded 

### that the boundary 

### line was

### the southetn 

### boundary 

### line 

### of Section 

## 10-not thefence

### on 

### GFM's property. Lemley alsotestified that he 

### found no acts 

### of possession by the Reynoldses in the disputed 

### ptoperty. Howevet, he observed deer stands 

### on the disputed properry, 

### which he believed belonged 

### to a 

### hunting club that 

### GFM had 

### on its proPerry.


### -2-

### JimmyLeeDownstestifiedthathehadlivedintheCaveCreekcommunityfotthityseven years and thatthe fence on GFM',s Pfoperty dated back 

### to the 1980s' 

### Downs saidthat he had been a 

### membet 

### of the 

### GFM hunting club 

### for seven

### to ten years, and 

### he 

### confitmed the existence 

### of hunting-club deer stands 

### on 

### GFM's pfopefty' Fot years 

### prior to the Reynoldses' 

### ownership 

### of the Pfopefty, according 

### to Downs, he and 

### other hunters used the road 

### that tan through the Revnoldses'propetty to accessthe hunting club' 

### Howevet' Downs added that since the Reynoldses have owned the 

### ptoperty, the road had been closed 

### off. The final 

### GFM witness was 

### Kendall Smith. 

### He explained that the 

### hunting club, 

### owned 

### bythe Gracefamily, managedthe 

### ptoperty 

### in dispute'2 

### He testifiedthat 

### on afecent 

### visit' he uaveled on the road that ran through the Reynoldses' property and was stopped and questioned 

### by Donna ReYnolds' 

## on behalf 

## of the Reynoldse 

### s, L,Itty 

### lrilkes, a life-Iong resident

## of the cave cteek community, testified that the Reynoldses kept cattle ontheir properry 

### for

### fory to

### forry-five years and that the Reynordses repaired the fence

### from time to time. He added that the fence preexisted 

### the Reynoldses' purchase 

### of the PfoPerty, 

### that he

### did not know 

## if the fence was 

### put up by

someone 

### who owned the land on 

### both sides

### of the fence, and that hedid 

### not know 

### if the fence 

### line was 

### the boundary rine.

### wilkes arso said 

### that he had driven 

### on the road through the Reynoldses' ProPertY maflY times'



### 2smith said 

### the 

### hunting club had 

### roads, 

### "cutting 

## out' ice damage 

### on the maintenance. an annual 

### work day

### that included 

### "cutting ouC' the 

## -o..., and 

### building deet stands, along 

### with othet 

### -3-Boyd Qualls testified that he had lived in the Cave Creek 

### community for t'wenty-six years



### and currently 

### lived 

### iust west 

## of the Reynoldses. 

### Qualls said

### that he 

### did 

## not have an understanding 

### of the 

### property lines between the parties; however, he said he was 

### familiar

### with the road 

### on the Reynoldses' 

### property. He said that the road had been there

### fifty or 

### more years andthat 

### long ago 

### it wastegularly used when nearby property was being mined. 

### He added

### that onl-,, the Re.znoldses and 

### theit ftiends r,rsethe toad- now- "^.^J"^.-..-J..-.-"- CecilJames Reynolds flames) testified that he leased his property 

### in 1988 and purchased 

### it 

## in 2003. \X/hile he agreed that his deed conveyed 

### to 

### him only an eighty-acretract, 

### it was his 

### belief that his

### tact included the property 

### in dispute. 

### He said 

### that over the yeats he used the 

### properry sourh 

### of the fence3 and

### that no one has ever questioned his use

### of the 

### Propefiy. He added that the road

### through his 

### property runs very close to his home, and that since 2003, 

### only his family and hisfriends have used it.James's 

### wife Donna Reynolds concufted, stating that 

### only their friends and 

### family use thefu road. 

### At the conclusion 

### of thetdal, the court asked counselwhether there was any dispute that, based 

### on the Reynoldses' deed and 

### the 2009 survey, 

### GFM was

### the 

### recotd tide holder 

### of the property at issue. Counsel 

### for the Reynoldses conceded that there was no dispute on that 

### mattet, to

### which the 

### trial court stated, 

### "the burden then, 

### of course, . . .falls 

### upon the fReynoldses] to present

### their claim [for bound ary 

### by acquiescence]."nThereafter, the

### trial court quieted tide 

### in
James testified that 

### he ran catt)e,built new fences, repairedthe 

### old fence, installed deer stands, and cleated the 

### ptoperty 

### in dispute. 

### 'Also during this colloquy, counsel 

### for the Reynoldses conceded 

### thatwhile they asserted adverse possession as

### an

### affirmative defense

### in their aflswer, 

### they 

### could 

### not prove adverse possession, and, assuch, abandoned that defense, relying solely on boundary by acquiescence. 

### -4-the disputed 

### property 

### in accotdance 

### with the 2009 survey; 

### found that the Reynoldses failed 

### in

meeting

### their burden 

### of proving that the fence

### on GFM's propeffy was a 

### boundary 

### line by acquiescence; and

### found that the road across the Reynoldses' tract was subject 

### to aprescriptive easement 

### in favor 

### of GFM, its successors, assigns, and invitees, 

### but not the 

### public.

### After the decree detailing these findings was entered by thetrial court, the Reynoldses timely fi.led anotice 

### of appeal. 

### The Reynoldses' 

### first 

### point on appeal isthat the

### trial court cleariy

### ered in finding that the fence did 

### not constitute aboundary by acquiescence. 

### A fence, by acquiescence, may become the accepted boundary eventhough 

### it iscontrary to the survey bne. Strotber u.Mitchell,2011

### Atk. 

### App.224,

### ^t 1.7,382 

### S.!7.3d741,752. When adjoining landowners occupy 

### their respective premises 

### up

### to the 

### linethey mutually recognize and acquiesce 

### in as

### the boundary 

### fot a 

### long 

### period 

### of time, they and

### their grantees are 

### ptecluded 

### from claiming 

### that the boundary thus recognized and acquiesced in is 

### not the true one, although 

### it may 

### not be. 1d.,382 S.W.3d at7 52. 

### 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 hne. 

### 1d.,382 S.W.3d

## ^t752.It is the agreement and acquiescence, 

### not the fence 

### itself, that 

### contols. Id. at 

### t7-1,8,382 S.W.3 

### d

### at752. The 

### intention 

### of the parties and the significance 

### they attach

### to the fence, rather than its 

### location or condition, iswhat is

### to be considered

. Id. at 78, 382 S.W.3d at 752. 

### Neither a

### prior dispute about the boundary line 

### nor adverse usage up to afence is required 

### to establish a

### boundary by acquiescence. 1d.,382 S.W.3d 

### atl52.

-5-

### We have 

### noted

### that the mere existence 

## of a fence,

### without evjdence

## of rnutual

recognition, cannot sustain a

### finding 

### of such aboundary. 1d.,382 S.!7.3d 

### at752. Also, the fact that a landowner puts afence inside his boundary line does 

### flot mean that he is acquiescing 

### in the fence asthe boundary, theteby losing 

### tideto the 

### strip on the 

### other side. 1/., 382 S.W.3d at 

### T|Z.Thatoccurs only 

### if the neighbor takes possession and holds 

### it fot the requisite 

### number 

### of

vears. 1d..382 S.!7.3d 

### at752-53. Finally, because the locatio n

### of aboundary is adisputed question 

### of fact, we

### will affirm unless

### the 

### trial court'sfinding is cleatly against

### the pteponderance 

### of the evidence' 

### Id-,382 S.W.3d 

### atl53.A findingis clearly erroneous when, although there is evidence to 

### supportit, the 

### reviewing 

### court 

### on the entire evidence 

### is 

### leftwith a

### definite conviction tha;t a 

### mistake was 

### committed.Id. at 

### 18-19, 382 S.W.3d 

### ^t753. Whether aboundary line by acquiescence exists is 

### to be determined 

### from the evidence 

### in each 

### individual case.Id. at1.9,382 S.!7.3d 

### ^t753- In the case at bar, thetrial 

### courtfound that the Reynoldses failed to prove their claim 

### for boundaryby acquiescence. The court specifically stated 

### atthe conclusion of thetrial

### thatto meet 

### their burden

### of proof, the Reynoldses

### would have 

### to prove that the conduct, beliefs, and 

### intentions

## of bothlandowners established atacit agreement that the fence line was the 

### boundary line. However, 

### in this case, as

### found bythe 

### triai coutt, thetewas an absence

### of this type 

### of evidence

### from the perspective 

### of GFM ot its predecessors. 

### No witness 

### offered evidence

### that 

### GFM ot its predecessors believed or intended the fence to be the boundary line. 

### Andwhile each of the Reynoldses'witnesses testified thattheywete 

### familiarwith the fence line, had been on the property 

### in dispute, andr.rray have thought that the fence line was the boundary line, none were


### -6-certain 

### where the boundary 

### line benveen 

### the parties' 

### ptopetty was and 

### nonetestified about



### GFM's or its predecessors' tacit agreement or recognition that the fence line was the 

### boundary line. Notably,James Reynolds'stestimony 

### ptovided only half 

### of the requirements needed 

### to establish boundary by acquiescence. 

### He stated that he and hisfamily had alvrays considered the fence iine a.sthe tror-rndasr line, tha.t they r-rseclthe disputed 

### propertvfor forq, years, and that they 

### maintained 

### the disputed property. However, 

### the mere subiective 

### belief that a'

### fence 

### is the boundary line is 

### insufficient to establish aboundary bet'ween 

### two propeties- Boltsteru. Shoemake, 101

### tuk. App. 148, 1,52,212 

### S.!f.3d 1.39,'143 (2008). James 

### did not offer any evidence 

## of GFM's mutual recognition

## of the fence as

### the boundary. 

### The 

### trial court stated, 

### "ffames Reynolds] was veq/ frank 

### in his testimony, he said . . .

### 'I always 

### thought that [rny 

### ptoperry] went upto the fence line

. . . 

### .'But he never really came 

### out and said anything about some 

### sort of an 

### agreement

### either 

### implicitly

## or explicitly 

## with any 

### other landowner 

### that 

### would give you acquiescence." 

### Moreover, as

### pointed out by the 

### uial court, thete was evidence 

### of GFM's conduct that established that 

### it did not believe the fence wasthe boundary line. Sevetal witnesses testified 

### that south 

### of thefence]ine, there were deer stands that wete maintained 

### by GFM. Also, there was evidence that the 

### hunting club, owned by 

### GFM, managed and maintained (at least annually)the 

### properry south 

### of the fence.



### -7-Because there was an absence 

### of testimony showing that 

### GFM consideredthe fence 

### to

be the 

### property line and therewas evidence 

### of GFM's conduct to the contralT, we 

### hold that the 

### tdal court did not cleady 

## er in refusing 

### to find the fence was the boundary 

### by acquiescence. 

### The Reynoldses' 

### next argument isthat the 

### ffial coutt cleady 

### ered 

### in finding that 

### GFM was entided 

### to aprescriptive easement 

### in the Reynoldses'toad. 

### The following summarizes

### our laur nh nreqctinfirre eacernenfs' 

### r-*----r

### A prescriptive easement may be gained by one 

### not 

### in fee possession 

### of the land by operation 

### of law in amanrrer similarto adverse possession. 

### In Arkansas, it is generaliy required that one asseting an easement by 

### ptescdption show by apreponderance 

### of the evidence that one's use has been adverse to the true owner and under aclaim of 

### right

### fot the statutory period. 

### This court has said

### that the statutory period 

### of seven years

### for adverse possession applies 

### to prescriptive easements. 

### Overt activity on the 

### patt 

### of the user is necessary 

### to make 

### it clear 

### tothe owner 

### of the 

### propetty that an advetse use and claim are being exerted. Mere permissive use

## of an easement cannot 

### tipen 

### into an adverse claim 

### without clear action, 

### which places the 

### ownet on notice. Some circumstance or 

### actin addition to,

### orin connecLion 

### with, the use 

### which indicates that the use was 

### not merely permissive is required to establish a

### right by 

### prescription. The determination 

### of whether a use 

### is adverse 

### or permissive 

### is

### a facttal question, and

### formet decisions are :,aely 

### controlling on

### this factual issue. 

### The 

### plaintiff bears 

### the burden 

### of showing 

### by a preponderance 

### of the evidence 

### that there has been adverse, 

### not permissive, use 

### of the land 

### in question lY/illows, 't .t C u. Bogl,201,3

## A*. App. 59, at 3 (citing Roberts u.Jackson,2011 

### Ark. App. 335, 384 

### s.vr.3d 28). \We 

### teview casesthat

### traditionally sound 

### in equity de

### novo on the recotd, but we

### will not reverse a

### finding 

### of fact by the 

### circuit court unless it is clearly erroneous. Acuna u. IWatkins,2012 

### Ark. 

### App. 564, at

### 6,

## -S.W.3d 

## -, -. A finding is cleady 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 amistake has been comrnitted

. Id.,

## - S.W.3d at

## -.In reviewing 

### ^

### tfl^l 

### -8-

### court's findings, we give due deference 

### to the 

### tdal court's superiot position 

### to determine the



### credibility 

### of the witnesses and 

### theweight 

### to be accorded

### to their 

### testimoty. Id.

### ^t 

### 6-7,



## - S.!7.3d ^t

## _. Disputed facts and determinations of witness 

### credibility 

### Newithin the 

### province 

### of the fact-finder

.

### Id. at7

## ,

## -S.!7.3d ^t

## -.It isour duty 

### to revetse 

### if our own 

### review

### of the record is 

### in marked disagreement 

### with the

### trial court's findings. 

### Id.,

## -S.W.3d at

## -. In the case at bar, the

### trial court found that the Reynoldses' road had been used bythe 

### community 

### for a long, long time, way 

### befote-well, it's been used by 

### the Reynolds, 

## in fact, and 

### [their predecessots]. 

### It's been used so 

### long that there 

### is a 

### prescriptive easement across 

## it. The fact that they bought 

## it, that's

## a switch in landowners, 

### it's been used as

### a road 

### long-probably even 

### before [the Reynoldses' predecessors] owned 

### it. So

### as fas as 

### I'm concetned, there 

### is a 

### right-of-way actoss the toad. The Reynoldses arguethat thetrial court's 

### finding on this issue was cleat

### erot because there was no evidence 

### in the recotd that 

### GFM, ot its ptedecessors, used thetoad adversely

### for seYen years. 'We agree. 

### No witness testified that 

### GFM used the road 

### in anyfashion, much less adversely and 

### overtly, 

## for seven years.

### Andwhile every

### witness

## ^t tirLa.l

### testified

### that they had used the Reynoldses' road, none testified that they used 

### it in amanner that was adverse

### or hostile 

### to the 

### ownership rights 

### of the Reynoldses. 

### To the 

### contary, there was ample evidence 

### of permissive

use of the Reynoldses' road.

### According to Quails, Downs, andJames and Donna Reynolds, since 2003, 

### only the Reynoldses 

### and those

### with their permission 

### had used

### the toad. 

### This was 

### coroborated by evidence 

### thatwhen Smith and 

### Lemley recently traveled 

### on the Reynoldses' road, 

### their use

### of thetoad was 

### interrupted by Donna and James Reynolds. 

### \7hile the Reynoldses'road may have been used

### often 

### in the past, there is 

### no evidence that that usewas anything other than permissive. In tecent yeats, the evidence ptesented was

### that 

### -9-

### Cite as2013 

### Ark. App. 484



### only the Reynoldses and

### their friends used the road. There is a lack

### of evidence 

### that

### for seven years

### GFM adversely used 

### the road. Therefote, we 

### hold that the 

### trial court cleady 

### ered in avzarding 

### GFM a prescriptive easernent 

### in the Reynoldses'road, andwe reverse 

### on that issue. 

### Affirmed 

## ir prrq tevetsed 

### in prrt. lTHrreAKEn and 

### HxsoN,JJ., agree. 

### Bistow 

### E Richardson, 

### PLLC,by: Melissa 

### B. Richardson, 

### for appellants. 

### Blair 

### & Stroud,by: Robert 

### D. Stroud, 

### for appellee.



### -10-