*1 affirm, as in the We record indicates that the nothing trial court the recommendation of the mechanically imposed jury. It is burden to a record sufficient to show that produce State, reversible occurred. error has Bullock v.
S.W.3d 380 and we are not (2003), satisfied this record is sufficient to establish such a After showing. discharging jury, time to file motion for a verdict different appellant requested from the recommendation. After the State jury’s objected recommendation, the court to follow the the court encouraged stated that it knew of no reason that it should not It legal proceed. then allowed to make an oral motion to run the sentences motion, heard the State on the oral and stated that it concurrently, would follow the recommendation. ex jury’s this Nothing shows that the trial court failed to exercise change discretion in whether to run the sentences determining or con consecutively currently.
Affirmed. JJ., agree. Marshall,
Robbins BOYSTER Teresa SHOEMAKE James CA 07-593 272 S.W.3d139
Court of Arkansas Appeals 23, 2008 delivered Opinion January *2 Pruitt, for Jerry appellant. Walters,
Walters,Gaston, and Bill Ridgley,by: appellee. Wendell L. On the Griffen, Judge. April Sebastian Circuit Court entered an order find- County that Teresa Shoemake ing of a presented proof between to her and property belonging appellant assertsthat the circuit Boyster. court erred in clearly James that making failed to finding, contending prove there was mutual assent in the fine. establishing We affirm, that the circuit court did not err in holding sufficient evidence of appellee presented mutual recognition fine we remand the by acquiescence. case with instructions to amend the decree a more by adding specificdescription the fine between the are landowners in southern parties adjacent Sebastian with County, located south of appellee’s property appellant’s. who title to the Appellee, in acquired property alleged had to an old fence north of the acquiesced true to her According testimony, boundary-line arose in summer 2005 when she lost several dispute on her hunting dogs When she went to the area on her four-wheeler to find the saw that the fence had been dogs, appellee cut, rocks had been and trees had been cut down. She picked up, asked, saw wife and “What are you guys doing?” then learned that had Appellee surveyed property discovered that the fence line was not on the boundary. Appellee old, described the fence an fence that had into the rusty grown trees and stated that the fence had been on the her entire property was enclosed fence on life. She noted that her west, north, property was located on the south and east sides. highway of her that her testified grandmother prop- Appellee acquired her and that the passed grandfather erty property was born in 1945 after her death. grandmother’s Appellee that in recalled She noted she visiting frequently. property 1960s, the other side of the fence was used as land. She never saw other than use pasture the fence. Her side of the fence south of family’s trees, than had not been used for other contained which anything trees and recreation. Christmas their stated that the sold
Appellee Shockleys *3 Tatum, immediate in interest. She Bryan predecessor he recalled a conversation with him where conversation, line. he asked fence line as the boundary During her if he could across her and install a water line. After dig property several she him to across if he would brush allowed dig hog days, she had a stated that with property. Appellee good relationship Tatum and that he never her about the fence being questioned property also of others. testimony many Appellee presented Jackie father,
Paxton hunted on the Bob with Hig- property and testified that instructed him that ginbotham, the Higginbotham ended at the fence line. Paxton the fence described property condition, in “decent” and did not see evidence of north anyone of the fence use of the south of the fence. Alan making property also hunted on the with his and testified property grandfather Jones that his told him that extended to grandfather appellee’s property the fence line. Dale cut Christmas trees from the Tommy Jones the north and testified about used as property property being Williams, Ann who moved the area in to Margaret pasture. 1997, never saw evidence of north of the fence anyone September south of the fence. using property
Pamela was married to Robert Sullivan formerly Shockley and familiar tract now owned was with the She by appellant. testified that she and her former husband ran a farm operation and then north tract until the 1980s. She her husband moved to Greenwood and started subdividing selling Tatum, The first was sold to and she did not return property. piece to the on a basis after that Sullivan had no regular property point. recollection of the fence on the property.
Tatum testified that he his from the purchased property sometime after 2000. He stated that his ten acres were Shockleys clear-cut timber and described the land as a “veritable nightmare,” as it took two or three weeks of dozer work to clear it. He heavy denied a fence on the for one five acres seeing property except Tatum recalled part property. approaching appellee discuss an easement over her He stated that she originally easement, refused to allow the but the two later that he agreed could install the water line if he brush He did hogged not recall the fence line or other discussing with appellee. testified that he looked at the before it from Tatum and that Tatum’s
purchasing property appeared have been bulldozed. He stated that he found a recently fence while but that a measuring could not walk person down the road and see the fence because the fence was in poor fence, condition. When he seeing that it was con- opined structed to on or off the keep He something also nearby highway. noted that he never saw use the south of the fence and that he never discussed the line until the instant dispute.
In an order dated March the circuit court found established a by acquiescence title to the tract in her name. quieted ecuted an Appellant pros- but appeal, dismissed for lack appeal final order, as the circuit court failed to address conversion claim. See *4 Shoemake, v. 14, CA 06-744 Boyster Mar. (Ark. 2007) App. (not designated circuit court publication). addressed the claim 24, in its final 2007, entered judgment filed a April appellant notice of timely appeal. For his sole point contends that the appeal, appellant circuit court in erred clearly the fence line finding was established as the line boundary He by acquiescence. argues mutual assent to the line is a boundary key estab- component line lishing asserts that acquiescence appellee failed to that there was mutual prove assent. any we review record, cases de
Although
novo on the
we
equity
do not reverse unless we determine that the circuit court’s findings
of fact were
Lees,
172,
erroneous. Robertsonv.
clearly
87 Ark. App.
152 Donahoo, 43, been mistake has committed. Connerv. 85 Ark. In the circuit court’s (2004). reviewing findings, we due deference to the circuit to give judge’s superior position determine the of the and the witnesses to be credibility weight accorded to their Id. testimony. line,
The mere existence of a fence or some other without evidence of mutual cannot sustain a of bound- recognition, finding Collier, v. Warren 559 ary by S.W.2d acquiescence. Robertson, 927 (1978); silent is supra. sufficient, as the line is inferred from the usually Warren, Newton, conduct over so Hicksv. years. many supra; Ark. (1974). boundary by acquiescence be established without the may adverse use or necessity prior dispute to the line.
up Rabjohn Ashcraft, S.W.2d 138 For a to that a line has party prove been established must show that both by acquiescence, party at least as the true tacitly accepted non-surveyed line. The mere belief that a fence boundary boundary subjective is the line is insufficient to establish a between two Curtis, Webbv. properties. S.W.2d 87 (1962). Robertson, discusses in of his supra, support argu- Robertson, ment for reversal. In we affirmed a that the failed to appellant prove boundary by acquiescence despite that members of his maintained the disputed that no one else claimed the property, and that disputed considered the fence everyone to be the appellant’s family line. The record contained little very testimony regard- the construction of the fence. ing While the relied on the appellant issue, silence we noted appellee’s that the regarding appellee matter, was not silent on the another not to mow the telling party tract. There also an absence of testimony showing side of the considered fence to be the line. the evidence in the instant case
Appellant compares that in Robertsonand contends that failed to present any evidence that he or of his interest consider the predecessors mistaken, fence line be He is boundary. testified that Tatum the fence as the While describes this as it was within “self-serving testimony,” *5 credible, of the circuit court to find her province our standard of review us to defer to the circuit court’s requires Conner, reliance on her In testimony. addition to supra.
153 that Tatum the fence as the testimony boundary line, from and her witnesses established that no one north of the fence used south of the fence and north of the fence was while south pasture, fence was woods. sufficient evidence to Appellee presented establish and his in interest predecessors recognized the fence line as the between the two boundary properties.
Because the circuit court did not err in established that the fence line between the two properties we affirm. the trial boundary by acquiescence, court order in this case lacks a of the specific description boundary line. A final order in a line must describe the boundary dispute line between land owners with boundary sufficient disputing that it be identified reference specificity may to the solely by decree. 722, Petrusv. Nature 330 Ark. Conservancy, Penland v. (1997); Johnston, App. In Jennings Buford, 958 S.W.2d App. we noted (1997), the decree there lacked a specific line
description but we noted that boundary question, the line described in that case was described as “the specifically ” fence ‘reflected the Askew meandering by We held that survey.’ the lack error, in the order was not specificity reversible but was a mere omission or that could be oversight corrected pursuant then Rule of the 60(a)1 Arkansas Rules of Civil Procedure. we leave Accordingly, to the lower court granted to amend the decree a more of the adding line specific description between the land. We did the parties’ same in recently Adams v. Atkins, 249 S.W.3d when the (2007), order identified the line as reflected in the as the Higby survey true and correct line between the properties question. case, In the the order also present lacks a of the specific description between the but the order properties, references survey established identifying line as the fence on the south side of the old Road. As we did in Slaytonville Jennings Adams, we leave to the grant circuit court to amend the decree a more of the adding specific description be tween the
Affirmed and remanded with instructions. 60(b).
1 NowRule See Rule Addition to Notes, Amendment. Reporter’s *6 C.J., JJ., agree. Gladwin, Robbins, Pittman, Bird, and J., Hart, dissents.
Josephine Res estmiseraubi Judge, dissenting. Hart, Linker est et uncertum.I submit that the common law jus vagum remained than and real for more a a half concerning century much the as it same existed on March the date England in our statute. See Ark. Code Ann. 1-2-119 specified reception (Repl. However, decade, in the last where the common 1996). particularly concerned, law is it has into an regarding acquiescence morphed state, the of of Arkansas Court To unrecognizable courtesy Appeals. mark, at arrive its current low-water I believe the has made majority mistakes of both fact and law. dissent,
While I do not recount facts I a when write usually I believe that I must do so in this case to correct what I believe is an of the nature and situation of overly simplistic understanding the real-estate. This case a involves disputed trapezoid- of land. One side of the shaped piece rugged, unimproved trap- ezoid measures 234.5 feet western along Boysters’ and the side measures 69.6 feet their eastern bound- parallel along road bounded on the south the remnants of a fence ary. gravel cuts across the by at
Boysters’ property approximately thirty-degree lies within angle. disputed property legal description the deed to ten acres of land that the from Boysters acquired Bryan Tatum in 2004. June
Tatum had been the owner of record since 2000 when his ten-acre was subdivided from what had been a 400 acre plot dairy farm owned Not much of Shockley family. surprisingly, However, land farm was comprising dairy open pasture farm, land lies in the far southwest corner of the dairy and it was too and tree-covered to use as apparently rugged It was described Shoemake and her pasture. witnesses variously cliff,” “bobcat “a much nature.” The country,” “pretty character of the land was confirmed rugged aerial by ground-level that were entered into evidence. photographs Significantly, witnesses, there was not a shred of disagreement among herself, Shoemake that the fence was constructed to including “hold cattle.” I do not believe it requires great leap logic surmise that the fence was constructed for no other than to purpose cows from the “cliff.” keep herself, It is true that Shoemake from presented testimony relatives, friend, and a who walked neighbor occasionally on the that Shoemake and her grandfather regarded true, notes, fence as the Also as the not one of boundary. majority — Shoemake’s witnesses testified that saw not they any activity — even cows owners of record of the grazing part *7 on either the fence. side of I disputed property, simply cannot offend common sense this fact by assigning any legal farm, whatsoever. When one has 400 acre how significance dairy much time be would one on the few acres expected spend of land that was unsuited for cows? grazing is correct when it that the majority acknowledges only evidence of mutual of the fence as a came from recognition Shoemake’s that Tatum “knew” that the tract testimony disputed However, was her even this as we crediting review, must under the standard of it establishes less than seven It is therefore less than the years. seven-year limitation for adverse period required possession, presumably much less than the that the must treat a fence “many years” Dietsch, to establish a Summersv. boundary by acquiescence. Ark. (1993).
Our court has held that the supreme mere exist- repeatedly ence of a fence without evidence of mutual is insuf- recognition ficient to Collier, establish a Warrenv. boundary by acquiescence. Bush, Fish v. (1978); Barnes, S.W.2d 525 (1972); Carney S.W.2d 417 has overruled today majority this clear to hold that of the mere precedent existenceof an old proof fence is sufficient evidence to establish a boundary by acquies- cence. I believe it is Finally, worth that the noting majority’s best,
decision at today for Shoemake. represents, pyrrhic victory As noted tract of land is previously, trapezoid-shaped because the fence cuts across the land at an All of Boysters’ angle. land lies north Boysters’ one of Shoemake’s portion just four The remainder of that forty-acre parcels. and three forty others border the almost 400 acres that the old comprised farm. While the fence line favors Shoemake where her property east, borders farther to the it Boysters, into dips significantly of I submit surveyed that because of description Shoemake will not be judicial able to assert that the fence estoppel, line is not the line if or his successors choose to Shockley assert title to the on their side of the fence.
I dissent. respectfully