Robertson v. Lees

• Decision Date: 30 June 2004
• Docket Number: No. CA 03-317.,CA 03-317.
• Citation: 189 S.W.3d 463
• Parties: R.C. ROBERTSON v. Raymond LEES.
• Court: Arkansas Court of Appeals

189 S.W.3d 463

R.C. ROBERTSON v. Raymond LEES.

No. CA 03-317.

Court of Appeals of Arkansas, Divisions IV, I.

June 30, 2004.

Appeal from the Circuit Court, Scott County, David McCormick, J.

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Witt Law Firm, P.C., by: Neva B. Witt, Ozark, for appellant.

Walters, Hamby & Verkamp, Greenwood, for appellees.

SAM BIRD, Judge.

This is a case about a boundary line dispute. The trial court found that appellant, R.C. Robertson, had failed to prove a boundary by agreement or acquiescence or that he proved ownership of the disputed tract by adverse possession. The trial court also quieted title to a parcel of land in appellee, Raymond Lees. We affirm in part and reverse in part.

R.C. Robertson filed a petition seeking an injunction, alleging that he owned a parcel of land in Scott County, Arkansas, and describing the parcel; that appellee Raymond Lees owned land adjoining the north boundary of Robertson's property; that there had been a fence between Robertson's and Lees's lands that had served as the boundary between the parcels for thirty-eight years; that after conducting a survey, Lees had torn down and removed the fence; and that the court should declare the fence line to be the boundary between the parties. Lees answered, admitting the parties' ownership of their respective parcels of land but denying the other allegations of the petition. Lees also filed a counterclaim, alleging that he had obtained information from Von Robertson, a prior owner of his parcel, about the location of the boundary between Robertson's and Lees's parcels and that he had obtained a survey confirming that the old fence line was not the "true" boundary line between the two parcels. By his counterclaim, Lees also alleged that he was the owner by adverse possession of the parcel of land described in his deed,¹ and Lees sought to quiet title to the property described in his deed in him. Robertson denied the allegations in the counterclaim, specifically denying that Lees had acquired title to any part of Robertson's land by adverse possession.

The Evidence

Robertson's Case in Chief

Robertson testified that, at one time, his grandfather had owned all of the property involved, including the parcels now owned by Robertson and Lees, and that he obtained his land in 1983 under the will of his sister, Lillian "Geda" Robertson (Geda). On his land is a house, a shed or outbuilding, and a well. Robertson testified that a clothesline and cedar-posted fence that his sister had built in 1971 or 1972 lay to the north of the outbuilding and well, and he said that the clothesline and fence were in place in 1983 when he acquired the land. He stated that he lives with his grandson in Watson, Arkansas, but that he has visited the property every year since he acquired it and that he pays to have the property maintained. Robertson testified that, in addition to the fence along the north boundary, Lees also took down twenty or thirty feet of fence on the west boundary of the property. Robertson testified that, to his knowledge, neither he nor his aunt Von Robertson ever pointed out the boundaries, but that he knew where the boundaries were located. Robertson testified that he had once been told by Reese Herren, a neighbor, that the fence was a foot or two off the actual boundary, but that Reese had later told him that the fence was exactly on the boundary line. Robertson stated that he was not claiming any property other than to the fence line, and he was claiming that the fence was on the boundary line that coincided with the description in his deed. Robertson read into the record the description of his land as it appeared in his deed

William Kenneth Robertson, Jr. (William), Robertson's grandson, testified that appellant lived part of the time with him in Watson, Arkansas, and part of the time in the house on the disputed land. William also testified that, as a young boy, he remembered that the disputed land had a fence on the north side and that the fence was not new at that time. He also testified that in 1970 the clothesline poles were on the property now owned by his grandfather (Robertson) and that the boundaryline location claimed by Lees, as indicated by a line of steel fenceposts set by Lees, would take in the clothesline. William also testified that Lees had told him that he had had a second survey conducted and that the new line, as established by the second survey, took in most of appellant's shed. William said that his grandfather had told him to remove some of the steel fenceposts placed by Lees.

William stated that Robertson had maintained the land by having someone in the family mow it or by paying someone to mow it, including all of the area within the old fence line. William stated that Robertson was claiming from the old north fence line to the highway. He also stated that, in 1994 or 1995, Lees was paid to mow Robertson's land but denied that Lees has mowed it every year since 1993. William stated that, until this dispute arose, he did not see any evidence of anyone claiming the land. He also stated that Robertson had stayed at the house alone overnight since acquiring it. William further testified that, when he was in college, he used the house as a get-away, commonly staying there for one or two weeks during the summer. He said he married in 1995 and that he and his wife visited there before and after they married. He stated that he knew Von Robertson but that she never showed him the boundaries and that he never knew of her talking to anyone about the boundaries. He did not recall meeting Pat Richmond, Lees's predecessor in title, until they met at court.

Edna Faye Owens, Robertson's cousin, testified that she lived north and west of Robertson's land and directly across a field from Lees. She testified that Robertson took possession of the land and started coming there occasionally after Geda died. She stated that the west and north sides of the land were fenced when Geda owned it. She recalled the fence and clothesline poles being there in 1977 when her mother passed away, and that the clothesline poles were still in the same place now. Owens stated that she helped Robertson maintain the place, mowing the yard and weedeating around the house. She said that she always mowed to the fence on the north side. She said that Geda had a burn barrel and that it is still in the same place that it has always been. She said that the fence on the north boundary was an old fence with cedar fenceposts that had been there for thirty years. She also stated that, to her knowledge, everyone in the family considered the cedar-post fence line to be the boundary of Robertson's land. She said that when she mowed, she mowed the entire tract, not just the part that was now in dispute, because at that time it was not in dispute. Owens said that Lees told her in 2002, not 1993 or 1994, that she did not need to mow the disputed property because it belonged to him. She said that she could not say whether Lees mowed the area in dispute because she could not see that area from her house. Owens further stated that William Robertson and his wife came to the property almost every weekend. She said they would visit with her until bedtime because the property did not have electricity or heat. She stated that Von Robertson was her great-aunt. She said that she may have been present when Lees bought the property but did not recall her Aunt Von showing Lees the boundaries.

Howard King, Robertson's son-in-law, testified that he was acquainted with the disputed property and that Robertson owns it. He stated that the boundary lines were obvious prior to Geda's death, with a fence on the north line. He stated that some of the posts were iron and some were cedar, and that the fence had been in place since 1972, which is when he first visited Geda. He stated that he visited Geda on a regular basis from 1972 until her death but that he had only been to the property once or twice since 1985. King identified four photographs taken in the early 1980s that showed the fence as it existed when Geda was alive. He said that the clothesline also existed at the time. His wife, Charlene King, corroborated his testimony. She also stated that the clothesline posts shown in the photographs were the same ones that Geda had put up, and that they appeared to be in the same position as they were in the 1980s.

Lees's Case in Chief

Patricia Richmond, Lees's predecessor in title, testified that she owned Lees's parcel from 1991 until she sold it to Lees in 1993. She stated that Von Robertson had told her that the boundary line adjacent to Robertson's land was somewhere between the pump house and the old fence. She stated that she had looked at the land before trial at Lees's request and that it appeared to her that the clothesline was not where it used to be, and that, from looking at the photographs, the clothesline used to be closer to the pump house. Richmond testified that Edna Faye Owens told her that Geda had needed some additional land for a clothesline and that the fence line was not the boundary. She also said that the area between the two parcels was overgrown and that she did not mow down to the fence because that area was overgrown with brush. She stated that she could not recall whether there was a fence in the overgrown area. She also stated that Robertson's property was overgrown because it was not mowed.

Lees's wife, Christine Lees, testified that, when Lees purchased the property, they were told that the boundary ran near the pump house and the shed. She stated that Patricia Richmond and Von Robertson showed her where they understood the line to be. She said that Von Robertson had said that the clothesline was placed where it was for Geda's use, but that the land actually belonged to Lees. She also stated that, when they purchased the land in 1993, Robertson's land was so overgrown that one could not see Robertson's house or tell that it had a...