Arkansas:
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.
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.
The location of a boundary line is a question of fact. Although equity cases are reviewed de novo on appeal, we will affirm a trial court's finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous.
Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000).
In reviewing a trial court's findings of fact, we give due deference to the trial judge's superior position to determine credibility of the witnesses and the weight to be accorded to their testimony. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993).
It is also settled law that a boundary line by acquiescence may well exist without the necessity of a prior dispute.
Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Instead, whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence.
When the adjoining owners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Walker v. Walker, 8 Ark.App. 297, 651 S.W.2d 116 (1983).
Our supreme court has held that the mere existence of a physical boundary, without evidence of mutual recognition, cannot sustain a finding of such a boundary as the property line.
Additionally, we noted that the intention of the parties, not the physical boundary itself, is what controls when determining whether a boundary line exists through acquiescence.
However, in Robertson we affirmed the trial judge's finding that no boundary by acquiescence existed because the appellant had not produced any evidence that the fence at issue had been intended to be the boundary line. Rather, the appellant attempted to rely on silence from the appellee and his predecessors in title. We specifically noted that the appellee had not been silent on the matter but had asked for persons not to mow the disputed tract and gave permission for a clothesline to be built. Robertson v. Lees, 87 Ark.App. 172, 189 S.W.3d 463 (2004),
A boundary by acquiescence has been affirmed when the parties tacitly agreed on a line running between two marks,
such as concrete stobs Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970),
and trees Ward v. Adams, 66 Ark.App. 208, 989 S.W.2d 550 (1999).
However, Arkansas law does not support the establishment of a boundary by acquiescence along an invisible line between two large land forms, such as levees, that are not truly capable of being used as accurate markers of a boundary. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000).
When the boundary lines between two estates is indefinite or unascertained, the owners may, by parol agreement, establish a division line, as the effect of such agreement is not to pass real estate from one party to another, but to define ht boundary line to which their respective deeds extend. Sherman v. King, 71 Ark. 248, 72 S.W. 571.
Persons owning adjacent lands may by agreement establish the boundaries between their lands, regardless of the lines of the Government survey. Cox v. Daugherty, 75 Ark. 395, 36 Ark. 184.
The owners of adjoining tracts of land may by parol agreement settle and establish a permanent boundary line between their lands, which, when followed by possession according to the lines so agreed upon, is binding and conclusive, not only upon them, but upon their grantees. Miller v. FarmersÛª Bank & Trust Co., 104 Ark. 99, 148 S.W. 513.
Where there is a doubt, dispute or uncertainty as to the true location of a boundary line, the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them, although the possession is not for the full statutory period. Malone v. Mobbs, 102 Ark. 542, 145 S.W. 193; Diedrich v. Simmons, 75 Ark. 400, 87 S.W. 649; Payne v. McBride, 96 Ark. 168, 131 S.W. 462.
It is the policy of the law to encourage agreements between adjacent landowners as to their boundaries, and to give effect thereto when shown to exist. Miller v. FarmersÛª Bank & Trust Co., 104 Ark. 99, 148 S.W. 513.
DDSM:beer:
Robert Hill, post: 349528, member: 378 wrote: As for the case here. I don't like the decision. The landscaper erred. It should not have had an effect on the line especially by the use of simple edging material.
I think in this case it's not only that the landscaper erred (or was given those directions or whatever spurred the encroachment), but it was maintained and perpetuated for over 20 years. If the neighbor didn't like it, that was plenty of time to exercise his rights.
In this day and age of Google Scholar it really isn't that difficult to figure it out.
As usual the Court doesn't say much about the Surveys, maybe the 2008 survey found original corners or maybe it just measured them in, we don't know. The Courts look more to reality than technicalities.
Duane Frymire, post: 349633, member: 110 wrote: Brian, I would like it if it was worded in such a way as to do what you say. I think it goes too far, and I think the case posted illustrates that. There shouldn't be a need to have boundary lines loudly and obnoxiously marked along their entire length at all times in order to rely on the lines that were originally surveyed. I don't think a court action should be allowed unless there is a real dispute, by which I mean the evidence is so ambiguous that two or more licensed surveyors cannot agree on the location. And I don't think all small acquiesced areas should ripen into a new boundary location. I like the application of what courts call "neighborly accommodation" in a situation like the case posted. Of course maybe this particular landscaping cost tens of thousands of dollars, in which case I might be convinced, but somehow I doubt that's the case because it wasn't discussed. And even then I would call it adverse possession, because the true line was so easy to find. The statute appears to allow/create disputes in order to have something to solve. This diminishes the role of surveyors in society and is something one national writer of columns has predicted and mentioned has already happened. This is the first instance I've seen what he is talking about.
I don't see sufficient evidence in the Iowa case to call it a boundary. The California Courts have gone too far the other way; a long time, arrow straight fence which has been acted upon as the boundary for decades is not sufficient. Property owners should be able to rely on evidence of an old survey (I don't think the fence got that straight by accident).
Duane Frymire, post: 349633, member: 110 wrote: There shouldn't be a need to have boundary lines loudly and obnoxiously marked along their entire length at all times in order to rely on the lines that were originally surveyed.
There is no need to mark a line between end points of a surveyed line however if improvements are made along the line that each owner can see and each owner acts in a way that indicates it to be the limits of their property for a time the law is clear that there should be nothing (particularly a subsequent survey) that can change their common actions. In this case two owners testified the landscaping marked the line. When a surveyor receives such testimony it has to heavily weigh in a property line location. The problem as I see it most don't do their job and ask. The crew goes out and finds the two end points, ties them in - survey done.
Duane Frymire, post: 349633, member: 110 wrote: Of course maybe this particular landscaping cost tens of thousands of dollars, in which case I might be convinced, but somehow I doubt that's the case because it wasn't discussed.
So you would make better allowances for the rich guy that can afford expensive landscaping than some guy that is spending all he has on less valuable improvements? Wouldn't you want to think the passage of time would hold more weight than how much money someone put in to it? If you're going to apply monetary value of the improvement to the ability to overtake the neighbor's land, will you consider that value compared to how rich the encroacher is? I mean if the guy is a millionaire $10,000 landscaping is a lot less to him, than if someone who has little money in the bank spends his last $1K for improvements.
Just being devil's advocate here. My main point, in this case, is that someone let 20 years pass without an objection. They apparently didn't have it surveyed and didn't care enough to have it surveyed to make sure they knew what they owned for that length of time. I mean, if you cared so much why didn't you say something a long time ago?
I think part of Duane's point is the doctrines should require objective uncertainty so that if the line is easily ascertainable and the occupation line does not reasonably fit the Deed then the Doctrine can't operate because it would violate the Statute of Frauds.
I can see that. Maybe that is why he said that if it does have elements of possession across the well-defined line, it should be under the concept of adverse possession and not acquiescence.
My only point is that I question to what extent the value of the permanent improvement should play a large role as opposed to meeting the time-element. The concept that you don't watch someone build a house on your property and not point it out until after they have spent the money and completed the work.
This is pretty basic guidance for Land Surveyors, I wish our case law was this direct.
If there is already a survey commissioned by a property owner and there is physical evidence (in this case a fence running from monument to monument) that it has been implemented and accepted by the owners then the surveyor should not disturb the agreement by setting new monuments in a different location.
Duane Frymire, post: 349633, member: 110 wrote: And I don't think all small acquiesced areas should ripen into a new boundary location. I like the application of what courts call "neighborly accommodation" in a situation like the case posted.
Court rejects fence
All acquiesced areas don't ripen into a new boundary location. It depends on facts and testimony. Until all the facts and testimony is heard it is not possible to determine a boundary. The survey must include discovery of facts.
Great discussion. I speak to the landowner and the adjoiners more much than my local counterparts. I also give occupation much more credit than these fellow local surveyors.
However, I don't see myself coming up with an end product as the plat shows if the occupation in this case is plastic landscape edging, a few flowers, and a rock or two. I agree with Mr. Adams in the sense that I need to see some 'skin in the game'. The value of the improvement itself and/or the value of the use of the land should come in to play.
A cheap half broken down fence may not have much value, but 10 years of grazing is worth something and really manifests intent. Just planting a couple flowers, putting in some plastic edging, and wood chips on land that neither owner could probably build on due to zoning (my assumption) just doesn't rise high enough for me. I may have to recalibrate!
Steve
"The concept that you don't watch someone build a house on your property and not point it out until after they have spent the money and completed the work."
I'm assuming you are referring to basic estoppel. Boundary by agreement/acquiescence doctrines are based in principles of estoppel and equity. If the landowners agree or aquiese in an uncertain line, and treat the line as the boundary for a long period of time, they are basically estopped from later claiming the location where the boundary should have been.
If these doctrines are eliminated, what is the alternative? Constant moving boundaries based on the whims of the latest surveyor who places the boundary wherever he thinks it should have been?
Imagine the lack of unnecessary litigation clogging the courts if only modern surveyors would understand their true quasi-judicial function, and practice as such. Imagine how much more money we can make while better protecting the interests of the public if the $600 "wham-bam-thank you ma'am" math/deed stake-out surveys would go the way of doctors bleeding patients to cure their maladies.
Cooley was, and still is right. "Surveyors are not and cannot be judicial officers, but in a great many cases they act in quasi-judicial capacity with the acquiescence of parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions."
Steve,
That is why it is so very important that we become intimately familiar with the laws in the states where we practice. Statute law and common law.
What we "think" should be "right" is, in a lot of circumstances, very different from what the courts and legislatures have told us (usually repeatedly for many decades) is "right".
Agreed, but it's getting a little harder because the needle is moving in Iowa in my opinion. I don't think this would have been enough ten or certainly twenty years ago.
Steve
Dave Karoly said:
"I think part of Duane's point is the doctrines should require objective uncertainty so that if the line is easily ascertainable and the occupation line does not reasonably fit the Deed then the Doctrine can't operate because it would violate the Statute of Frauds."
The Utah Supreme Court in
discussed objective v subjective uncertainty at length and decided against the requirement for objective uncertainty for boundary by acquiesence.
The problems that have emerged in our case law, which have been noted in recent commentary as well, indicate that the Halladay requirement of objective uncertainty makes boundary by acquiescence less practical, further restricts what was already a restrictive doctrine, and "effectively eliminate boundary by acquiescence as a viable doctrine for settling property disputes in Utah." 1985 Utah L.Rev. at 194. The result ofHalladay and its progeny has been "to convert a doctrine that was originally predicated on the policy of settling boundaries by reference to long acquiesced in lines into a doctrine that [serves] as a basis for challenging boundaries not founded on recent survey information." Id. at 201. Thus, in contrast to the purpose of the objective uncertainty requirement, it now appears that its use may increase litigation over boundaries rather than decrease it. Id.
The dissenting opinion criticizes this reversal of position, and it is certainly not particularly comfortable for an appellate court to decide it has made a mistake. However, much of the dissent's focus on the role of stare decisis and judicial restraint simply has no application to a state 424*424 supreme court in its common law development function. The rule we change today is a judge-made rule which has been soundly criticized by every scholarly reference to it.[5] It is a highly technical, historically debated, somewhat arcane rule of property law, not some fundamental principle of constitutional law or social policy. Having become convinced that the objective uncertainty requirement of Halladay was a mistake, we change the rule accordingly.
Consequently, we overrule the fifth requirement of objective uncertainty contained inHalladay v. Cluff and affirm the summary judgment entered in favor of appellees.
Read the whole case for a better understanding.
"8 There is a ÛÏreasonablenessÛ standard that must be applied. A fence one foot off from the record boundary surrounding a 500 acre farm will not make the title to the farm unmarketable. However the same difference between the fence and record boundary around a one-quarter acre residential lot will likely make the title unmarketable."
WOW JUST WOW?
For those worried and concerned about the size or cost of the object(s) marking an agreed/ acquiesced boundary line, as quoted by DDSM:
"Additionally, we noted that the intention of the parties, not the physical boundary itself, is what controls when determining whether a boundary line exists through acquiescence."
This is important - it is the intentions and actions of the landowners that is the most important, and really the only consideration. It is, after all, THEIR land and THEIR boundaries. We, as professionals, need to stop acting like arrogant "kings" over THEIR boundary lines, waving our magic measuring scepters over their land and proclaiming their intentions and actions are irrelevant and subservient to our superior math skills.
You're right, of course, Brian. I was kind of using one example for a more general point. My point more was that the common element whether it's laches, estoppel, adverse possession, or acquiescence more hinges on a time element than a monetary value element.
I'm not a big fan of lawns. I view lawn care as a waste of time and resources. However, I've learned that some people assign enormous value to their lawns while others are full-blown lawn fanatics. The "skin in the game" mentality is deeply flawed if only dollar bills are used to gauge value.
Tom Adams, post: 349668, member: 7285 wrote: So you would make better allowances for the rich guy that can afford expensive landscaping than some guy that is spending all he has on less valuable improvements? Wouldn't you want to think the passage of time would hold more weight than how much money someone put in to it? If you're going to apply monetary value of the improvement to the ability to overtake the neighbor's land, will you consider that value compared to how rich the encroacher is? I mean if the guy is a millionaire $10,000 landscaping is a lot less to him, than if someone who has little money in the bank spends his last $1K for improvements.
Just being devil's advocate here. My main point, in this case, is that someone let 20 years pass without an objection. They apparently didn't have it surveyed and didn't care enough to have it surveyed to make sure they knew what they owned for that length of time. I mean, if you cared so much why didn't you say something a long time ago?
Why would they object; it looks nice, not like someone is trashing their property or making a claim even necessarily, they are just gardening so I tell them it looks nice and keep up the good work. Doesn't mean I'm intending to give up anything, even if I say oh, that must be the boundary huh?. The size and cost of the markings or occupation go a long way in determining the intent as well as any inferred agreement and can't be ignored. And it is the richer and/or more threatening person who will make use of this statute because they will bully the neighbor and then not worry about spending the attorneys fees to use the law to bully some more.
I think it would be much more appropriate to replace this reactionary type statute with one that requires a surveyor mark the line before any landscaping is done, and that cost should be born by the one wanting to make the improvement. Allowing people to play dumb, take what they want, and force a neighbor into litigation just doesn't seem like good public policy to me. And minimus, unilateral actions such as this landscaping should not be taken to infer agreement by a nice neighbor who doesn't feel like making an issue of it. As one NY court proclaimed "...the mere running of a line through the woods by one party does not imply an agreement...".
