McWilliams v. Schmidt

• Decision Date: 05 December 2001
• Docket Number: No. CA 01-222.,CA 01-222.
• Citation: 76 Ark.App. 173,61 S.W.3d 898
• Parties: Clyde McWILLIAMS v. Karl W. SCHMIDT, et al.
• Court: Arkansas Court of Appeals

61 S.W.3d 898

76 Ark.App. 173

Clyde McWILLIAMS v. Karl W. SCHMIDT, et al.

No. CA 01-222.

Court of Appeals of Arkansas, Division IV.

December 5, 2001.

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Diana M. Maulding, Little Rock, for appellant.

Laser Law Firm, by Alfred F. Angulo, Jr., Little Rock, for separate appellees Karl Schmidt and Tanas Schmidt.

Matthews, Sanders & Sayes, by Doralee Idleman Chandler, Little Rock; Clark Brewster, Bryant; Terry Dugger; and Hugh L. Brown, Little Rock, for separate appellees Ronald Gangluff; Johnny Schmidt; Edward and Margaret Gangluff; David Gangluff; and Wrenetta Ritchie.

LARRY D. VAUGHT, Judge.

This is an appeal from a jury verdict entered in a case involving a boundary dispute. Appellant Clyde McWilliams also appeals from the entry of summary judgment for appellees in his malicious-prosecution claim. We affirm.

Procedural History

At issue is the ownership of approximately 5.9 acres of land. Appellant received a deed in 1965 to land in the southwest quarter of Section 12, Township 3 North, Range 12 West, in Pulaski County, Arkansas. To the east of his land, in the southeast quarter, lies property owned by the Gangluff and Schmidt families. The tracts owned by appellees Margaret Gangluff, Ronald Gangluff, and David Gangluff are north of the tracts owned by appellees Johnny Schmidt, Karl Schmidt, and Tanas Schmidt. In 1998, appellees Karl and Tanas Schmidt received a deed to a tract from Wrenetta Schmidt Ritchie and Jerry Ritchie. In 1995, appellee Edward Gangluff conveyed his interest in a tract to his wife, Margaret, to whom he gave a life estate, and to Ronald and David Gangluff, to whom he gave the remainder. According to the parties' deeds, their common boundary line divides the quarter-sections. Appellant claims that the quarter-section line should be located further east, along a meandering old fence line that was built in approximately 1941 and that was extended south in 1958. Appellees argue that the entire fence line was built to prevent cattle from roaming into the eastern area of their property and was never intended to mark the boundary line between the quarter-sections. Although appellant ran cattle and cut hay on the disputed area, appellees maintain that appellant did so with their permission. Appellees also contend that all parties had agreed that, when the need for a survey arose, a fence would be placed on the actual boundary line.

In 1998, appellees commissioned a survey that placed the boundary line considerably west of the old fence. Based on this survey, appellees built a new fence to demarcate the line dividing the southeast quarter from the southwest quarter of Section 12. After appellees built the new fence, appellant sued them in Pulaski County Circuit Court for ejectment, slander of title, and trespass. Appellees then initiated a quiet-title action in Pulaski County Chancery Court, which was dismissed because of the pendency of this action. After the chancery action was dismissed, appellant amended his complaint to include the claim of malicious prosecution. Appellant's claims were bifurcated, and the malicious-prosecution claim was not tried to the jury with the other claims.

Although appellant claimed title to the disputed area by adverse possession, acquiescence, and an agreed boundary line, he testified without qualification that he claimed title only through his 1965 deed, which clearly conveyed land in the southwest quarter-section. Appellant admitted that, if the land in dispute is actually located within the southeast quarter-section, he does not claim it. Therefore, the central question at trial was whether the area in dispute lies within the southwest quarter or the southeast quarter of Section 12. Nevertheless, the jury was instructed on adverse possession, acquiescence, and boundary by agreement. In rendering their verdict for appellees, the jury specifically found that appellant does not own the area in dispute.

Appellant filed motions for directed verdict, judgment notwithstanding the verdict, and for new trial, all of which were denied. Appellees moved for summary judgment on the malicious-prosecution claim. In support of their motion, appellees filed affidavits indicating that they had relied upon the advice of counsel in filing the quiet-title action. The trial judge granted summary judgment to appellees on this claim. Appellant appeals from the trial judge's refusal to set aside the jury verdict and from the entry of summary judgment for appellees.

Appellant argues that the trial judge should have granted his motions for new trial, directed verdict, and judgment notwithstanding the verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Sparks Reg'l Med. Ctr. v. Smith, 63 Ark.App. 131, 976 S.W.2d 396 (1998). When reviewing the denial of a motion for directed verdict, we affirm if the jury's verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 15 S.W.3d 320 (2000); Wal-Mart Stores, Inc. v. Williams, 71 Ark.App. 211, 29 S.W.3d 754 (2000). The same standard applies when we review the denial of a motion for judgment notwithstanding the verdict. Home Mut. Fire Ins. Co. v. Jones, 63 Ark.App. 221, 977 S.W.2d 12 (1998). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. Id. On appeal, only the evidence favorable to the appellee, and all reasonable inferences therefrom, will be considered. Id. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). The appellate court does not try issues of fact. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).

We will not reverse the denial of a motion for new trial if the verdict is supported by substantial evidence, giving the jury verdict the benefit of all reasonable inferences permissible under the proof. St. Louis S.W. Ry. Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995). In determining whether the evidence is substantial, the court need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Dixon Ticonderoga Co. v. Winburn Tile Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996).

Appellant attempted to prove that his deed included the land in dispute and, in the alternative, that he acquired it through an agreement as to the boundary, by acquiescence, or by adverse possession. Appellant argues that the jury's finding that he does not own the disputed property is not supported by substantial evidence.

Acquiescence

As we stated in Summers v. Dietsch, 41 Ark.App. 52, 849 S.W.2d 3 (1993), 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 the concepts of acquiescence and adverse possession. A fence, by acquiescence, may become the accepted boundary even though it is contrary to the surveyed line. Id. When adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Id. It is not required that there be an express agreement to treat a fence as a dividing line; such an agreement may be inferred by the actions of the parties. Id. Acquiescence need not occur over a specific length of time, although it must be for a long period of time. Lammey v. Eckel, 62 Ark.App. 208, 970 S.W.2d 307 (1998). A boundary line may be established by acquiescence whether or not it has been preceded by a dispute or uncertainty as to the boundary line. Jennings v. Burford, 60 Ark.App. 27, 958 S.W.2d 12 (1997). When a boundary line by acquiescence can be inferred from other facts presented in a particular case, a fence line, whatever its condition or location, is merely the visible means by which the acquiesced boundary line is located. Id. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros. Cement and Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000).

Boundary-Line Agreement

For there to be a valid boundary-line agreement, certain factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed by the agreement must be definite and certain; (4) there must be possession following the agreement. Fields v. Griffen, 60 Ark.App. 186, 959 S.W.2d 759 (1998).

Adverse Possession

In order to establish title by adverse possession, appellant had the burden of proving that he had been in possession of the property in question continuously for more than seven years and that the possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Anderson v. Holliday, 65 Ark.App. 165, 986 S.W.2d 116 (1999). Whether possession is adverse to the true owner is a question of fact. Id. Where possession of property is by permission, title is not acquired by adverse possession. McCulloch v. McCulloch, 213 Ark. 1004, 214 S.W.2d 209 (1948). Where the original entry on another's land was amicable or permissive, possession presumptively continues as it began, in the absence of an explicit disclaimer. Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937).

The Testimony

At trial, appellant testified that he and Otto Schmidt, one of appellees' predecessors in title, agreed in 1965 that the old fence line was the boundary. He said that, over the years since that time, he had bush-hogged the land in dispute, used it as pasture land, and planted grass...