Cite as 2026 Ark. App. 395
ARKANSAS COURT OF APPEALS
DIVISIONS III & IV
No. CV-25-172
SHARON WARREN Opinion Delivered September 9, 2026
APPELLANT/CROSS-APPELLEE
APPEAL FROM THE MADISON
COUNTY CIRCUIT COURT
V. [NO. 44CV-23-77]
HEATHER AND STEVEN PORTER HONORABLE BETH STOREY BRYAN,
APPELLEES/CROSS-APPELLANTS JUDGE
AFFIRMED ON DIRECT APPEAL AND
ON CROSS-APPEAL
WENDY SCHOLTENS WOOD, Judge
Appellant Sharon Warren appeals from an order of the Madison County Circuit
Court dismissing her petition for quiet title and resolving a boundary-line dispute between
her and appellees Steven Porter and his wife, Heather. The circuit court found that
Warren failed to prove ownership of a disputed tract of land under her theory of boundary
by acquiescence. While the court found that Warren had complied with all statutory notice
requirements for adverse possession, she failed to present sufficient evidence to show
adverse possession. Because the court dismissed Warren’s quiet-title action, it also
dismissed her additional claims for trespass, nuisance, negligence, and punitive damages
related to the disputed tract. The court also dismissed the Porters’ counterclaim asserting
damages for Warren’s wrongful termination of a farm lease on a separate parcel of land. Warren challenges the court’s dismissal of her petition for quiet title on theories of both
boundary by acquiescence and adverse possession along with the court’s dismissal of her
additional claims. The Porters cross-appeal from the court’s finding that Warren complied
with all statutory notice requirements and from the court’s dismissal of their counterclaim
for damages. We affirm on direct appeal and on cross-appeal.
I. Relevant Facts
The tract in dispute is a 2.5-acre parcel of land called “the Field” that both parties
agree is legally owned by the Porters and is situated between eighty acres of property owned
by Warren (the Warren Property) and a twenty-four-acre parcel of property the Porters
purchased from Sam Fancher (the Porter Property).
Warren acquired the Warren Property in March 2023 after the death of her
longtime partner, Warren Blackstone, who conveyed it to her in a beneficiary deed he
executed in 2006. Blackstone purchased the Warren Property in 2004 from Jo Ann and
Clarence Patton, who at one time owned both the Warren Property and the Porter
Property. A survey of the Warren Property prepared for Blackstone in 2006 demonstrates
that he did not own the Field.
The Porters purchased the Porter Property in 2022 from Sam Fancher, who took
title from his siblings in 2006. The Fancher siblings had received title from their father,
who purchased the property in 1983. The Field is in the southwest corner of the Porter
Property, and its western boundary adjoins the eastern boundary of the Warren Property.
2
Warren contends that the Field lies within a fence line that encloses her property
and extends onto the Porter Property; that it has been treated by her, Blackstone, Fancher,
and their predecessors as part of the Warren Property for years; and that there was no issue
with ownership of the Field until the Porters purchased the adjoining land in 2022. She
filed a petition to quiet title after the Porters obtained a survey and asserted ownership over
the Field.
At trial, Fancher testified that there had been a fence enclosing the Field until 2020
when a flood destroyed some of it; that Fancher’s father never claimed the Field; that
Fancher considered the fence the boundary line but did not actually know and had “never
really paid that much attention to it, honestly”; that Blackstone and Warren paid him to
maintain and mow the Field; and that he understood since 2006 that Blackstone and then
Warren utilized the Field. He stated that he told the Porters he was not sure what he
owned. Fancher also testified that he was very close to Blackstone and Warren, that he had
lived with Warren for a few years before he sold his land to the Porters, and that Warren
had paid a bond for him to get out of jail.
Warren testified that the Warren Property was enclosed by a fence, which she said
existed when Blackstone purchased the property in 2004, and that the Field lies inside this
enclosed fence. She said that a flood in 2020 heavily damaged the fence. She said that the
Pattons, and then she and Blackstone, maintained the Field and that Fancher had never
asserted ownership over it. She stated that she had paid taxes on Fancher’s property (which
included the Field) two or three times when Fancher was delinquent on taxes. When she
3
was asked about a survey prepared for Blackstone in 2006 that indicated he did not own
the Field, she said that she did not understand the survey. Although she admitted that she
had texted the Porters after a title company determined the Porter Property included the
Field that they might “very well own the land,” she explained that she was just “being
polite” and that “the legal issue is not something I really understand.” She said that she
considered Fancher “an adopted son,” that he was her brother’s best friend, and that
Fancher had been close to Blackstone. She said Fancher had lived in her barn or her home
since 2015. Finally, she admitted that she lied to the Porters by telling them that she had
purchased Fancher’s property.
Porter testified that he walked the property line of the Porter Property with Fancher
before he purchased it and that Fancher told him that the T-post on the actual surveyed
property line was the western property line. Porter testified that he did not see a fence
around the Field when they walked the property. Porter said the survey he had prepared
placed his property lines precisely where Fancher had indicated, and his (Porter’s) property
included the Field. Porter said that Fancher asked him not to tell Warren he was buying
the Porter Property because Warren would be “peeved” and kick Fancher off her property.
The circuit court requested, and both parties submitted, posttrial proposed findings
of fact and conclusions of law. However, the court’s order did not contain any specific
findings or conclusions. The court simply found that Warren failed to present sufficient
evidence to show either boundary by acquiescence or adverse possession, and it dismissed
her petition for quiet title of the Field along with her related claims.
4
II. Appeal
A. Standard of Review
We traditionally review quiet-title, adverse-possession, and boundary-line actions de
novo. Stevens v. Hillenburg, 2024 Ark. App. 295, at 7, 689 S.W.3d 695, 700; Strother v.
Mitchell, 2011 Ark. App. 224, at 16, 382 S.W.3d 741, 752. We will not, however, reverse
findings of fact unless they are clearly erroneous. Strother, 2011 Ark. App. 224, at 16, 382
S.W.3d at 752. A finding of fact is clearly erroneous when, although there is evidence to
support it, we are left with the definite and firm conviction that a mistake has been made.
Dye v. Anderson Tully Co., 2011 Ark. App. 503, at 4, 385 S.W.3d 342, 345–46. In reviewing
a circuit court’s findings of fact, we give due deference to the circuit court’s superior
position to determine the credibility of the witnesses and the weight to be accorded their
testimony. Strother, 2011 Ark. App. 224, at 17, 382 S.W.3d at 752.
B. Boundary by Acquiescence
Warren’s first point on appeal is that the circuit court erred by not finding that the
fence line created a boundary by acquiescence. She contends that the testimony—hers and
Fancher’s—indisputably demonstrates that both Warren and her predecessors and the
Porters and their predecessors treated the fence as the boundary for decades. She argues
that the court arbitrarily ignored this testimony.
Boundary by acquiescence requires three key elements: (1) a tacit agreement
between the parties, (2) recognition of the boundary for a long period of time, and (3) a
fixed line that is definite and certain. Mullins v. Helgren, 2022 Ark. App. 3, at 8–9, 638
5
S.W.3d 864, 870. 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. Myers v. Yingling, 372 Ark. 523, 527, 279
S.W.3d 83, 87 (2008). Although neither the mere existence of a fence nor one party’s
subjective belief that a fence is the boundary line will sustain a finding of acquiescence,
express recognition or agreement between the parties is not necessary. Boyster v. Shoemake,
101 Ark. App. 148, 152, 272 S.W.3d 139, 143 (2008). Tacit acceptance will suffice, and
silent acquiescence is sufficient where mutual recognition of the boundary line can be
inferred from the conduct of the parties over a period of years. Thurlkill v. Wood, 2010 Ark.
App. 319, at 3–4, 374 S.W.3d 790, 793. Whether a boundary line by acquiescence exists is
to be determined by the evidence in each individual case. Boyette v. Vogelpohl, 92 Ark. App.
436, 440, 214 S.W.3d 874, 878 (2005).
Warren and Fancher testified that the Pattons, Blackstone, Warren, and Fancher all
considered the Field to be part of the Warren Property and not the Porter Property.
Fancher testified that his father considered the Field to belong to the Pattons. Both
Warren and Fancher testified that there had been a fence enclosing the Field before 2020
but admitted that it had been largely destroyed in 2020. While this testimony may support
Warren’s claim that the fence that once surrounded the Field was a boundary by
acquiescence, other testimony presented to the circuit court supports the court’s finding
that Warren failed to establish each of the elements for boundary by acquiescence.
6
It was undisputed that the Warren Property as conveyed to Blackstone did not
include the Field and that Blackstone knew this from a survey prepared for him in 2006.
When confronted at trial with the evidence of this 2006 survey, Warren stated that she did
not understand the survey. In addition, Warren admitted that when the Porters told her
that they owned the Field, she texted them that they might “very well own the land.” At
trial, she attempted to minimize this statement by explaining that she was just “being
polite” and reiterated that she did not really understand the legal issues. Warren also
admitted that she told Porter she had bought the Porter Property from Fancher when she
had not.
Fancher admitted that he was aware of the 2006 survey showing that Blackstone
(and therefore Warren) did not own the Field and that there was no fence on the survey.
There was evidence that Fancher approached Porter offering to sell him the Porter
Property and that Fancher told Porter that he owned the Field but asked Porter not to tell
Warren because she would be “peeved” and kick Fancher off her property.1 When Porter
told Fancher that Warren said she had bought the Porter Property from Fancher a year
earlier, Fancher told Porter that Warren was lying. Porter kept the purchase a secret for a
few months, at which time he asked Warren, “I thought you guys already purchased th[e
Porter] property,” and Warren answered: “Well, I lied.”
1
Fancher testified that one of the reasons he sold the Porter Property was “to get away from Miss Warren.”
7
Porter stated that before he bought the Porter Property, he and Fancher “walk[ed]
the property lines,” and Fancher said that the Field was part of the Porter Property because
the T-post was the western boundary.2 Porter testified that before he bought the property,
he had it surveyed, and it confirmed that the T-post was the boundary line.
Taken together, this evidence supports the conclusion that there was no tacit
agreement between Warren (and her predecessors) and Fancher (and his predecessors) that
the fence was the boundary of the Field, that there was no recognition that the fence was
the boundary for a long period of time, or that there was no fixed line that is definite and
certain.
Whether there is sufficient evidence to support Warren’s argument on appeal is not
our standard of review. As stated above, our standard of review is to determine whether the
circuit court clearly erred in finding that Warren failed to present sufficient evidence of her
boundary-by-acquiescence claim. Whether a boundary line by acquiescence exists is a
question of fact to be determined from the evidence in each case. Whitecotton v. Owen,
2016 Ark. App. 120, at 7, 487 S.W.3d 380, 385. Resolution of conflicting evidence and
determination of witness credibility are within the province of the fact-finder. Horton v.
Taylor, 2012 Ark. App. 469, 422 S.W.3d 202.
2
James Hargis, Porter’s employee, testified that he was present when Fancher talked to Porter about selling his property to Porter and when they walked the boundary line of the property. Hargis stated that Fancher made it clear that the T-post was the western boundary line.
8
The credibility of the witnesses was a focus in this case. The Porters’ lawyer
recognized that credibility was a key factor, stating at trial, “Mr. Fancher, goodness, if your
testimony is believable, I don’t know why we’re here today, so I’m going to try to show the
judge that your testimony ain’t believable.”3
It was clear from the testimony that Fancher and Warren have a very close
relationship in which Warren has provided financial and other security for Fancher. This
evidence, coupled with the lack of corroborating evidence from their predecessors in title
regarding their use of the property, presented credibility questions for the court to resolve.
The circuit court reviewed the evidence, listened to the witnesses’ testimony firsthand,
made credibility determinations based on both, and found that the evidence was
insufficient to establish a boundary by acquiescence. 4 If the circuit court did not believe
Warren and Fancher, then there was no evidence to support her claim. Warren had the
burden of proof. Mullins, 2022 Ark. App. 3, at 9, 638 S.W.3d at 870; Hipp v. Cotrell, 2025
Ark. App. 179, at 9, 709 S.W.3d 844, 849. Accordingly, we hold that the circuit court’s
dismissal of Warren’s boundary-by-acquiescence claim was not clearly erroneous.
C. Adverse Possession
3
The parties’ posttrial briefs also emphasized the importance of the credibility of the witnesses’ testimony.
4
Although the dissent notes that the circuit court did not make a specific finding of fact that Fancher was not credible, we presume that the circuit court acted properly and made such findings of fact as were necessary to support its judgment. Robinson v. Woods, 2026 Ark. App. 225, at 15 n. 2, 737 S.W.3d 10, 18 n. 2.
9
Warren also challenges the circuit court’s finding that she failed to present
sufficient evidence that she adversely possessed the Field. Adverse possession is governed by
both common and statutory law. Wallace v. Rail Res., LLC, 2022 Ark. App. 506, at 7, 657
S.W.3d 875, 879. To prove the common-law elements of adverse possession, the person
making the claim must prove that she has been in possession of the property continuously
for more than seven years and that the possession has been visible, notorious, distinct,
exclusive, hostile, and with the intent to hold against the true owner. Cleary v. Sledge Props.,
Inc., 2010 Ark. App. 755, at 5, 379 S.W.3d 680, 684. A key element in proving adverse
possession is “an intent to hold against the true owner.” Emerson v. Linkinogger, 2011 Ark.
App. 234, at 10, 382 S.W.3d 806, 811. Permissive use of property can defeat an adversepossession claim. Collier v. Gilmore, 2018 Ark. App. 549, at 7–8, 562 S.W.3d 895, 899. The
evidence of adverse holding when the original entry is by permission must be “very clear.”
Emerson, 2011 Ark. App. 234, at 10, 382 S.W.3d at 812.
Like boundary by acquiescence, whether possession is adverse to the true owner is a
question of fact. Wallace, 2022 Ark. App. 506, at 7, 657 S.W.3d at 879. Again, Warren had
the burden of proof. Emerson, 2011 Ark. App. 234, at 6, 382 S.W.3d at 810. There was
testimony that, as of 2006, Blackstone knew he did not own the field and that Fancher
knew about the 2006 survey, which could suggest that Blackstone’s and Warren’s use was
permissive. In addition, the testimony was disputed regarding whether, when, and to what
extent the Field was fenced. Further, although Warren and Fancher testified that Warren
paid Fancher to mow, it was Fancher who actually mowed and maintained the Field, not
10
Warren. Finally, Fancher, Blackstone, and Warren had a close relationship such that
Warren considered Fancher “an adopted son,” which supports the position that any use of
the Field by Warren was permissive rather than hostile.
The circuit court assessed the credibility of the witnesses, reviewed the photographs
and surveys of the fence line, and determined that the elements of adverse possession had
not been proved by a preponderance of the evidence. We hold that this finding was not
clearly erroneous.
D. Remaining Claims
Our disposition of Warren’s appeal affirming the court’s dismissal of her action for
quiet title makes it unnecessary for us to address her remaining arguments regarding
trespass, nuisance, negligence, and punitive damages since she failed to establish ownership
of the property.
III. Cross-Appeal
A. Statutory Notice for Adverse Possession
The Porters argue that the circuit court erred in finding that Warren’s quiet-title
action complied with the applicable statutory-notice requirements. In a quiet-title action,
when there is no compliance with the statutory-notice requirements, the circuit court lacks
jurisdiction to adjudicate the rights to the land. DJS Dev., LLC v. Brawley, 2022 Ark. App.
199, at 4, 645 S.W.3d 34, 36. Arkansas law provides that when a claimant files a quiet-title
action, he or she shall post a notice of the pending quiet-title action conspicuously on the
11
property. Ark. Code Ann. § 18-60-502(b)(2)(B) (Supp. 2025). Once a petition is filed, the
clerk of the court must publish a notice of the filing of the petition on the same day of
each week for four weeks in some newspaper published in the county, if there is one, and if
not, then in some newspaper having a circulation in the county. Ark. Code Ann. § 18-60-503(a)(1) (Repl. 2015). The petition shall describe the land and call upon all persons who
claim any interest in the land or lien thereon to appear in court and show cause why the
title of the petitioner should not be confirmed. Ark. Code Ann. § 18-60-503(a)(2).
The Porters contend that because Warren never posted a notice of her pending
quiet-title action on the property and the notice published in the Northwest Arkansas
Democrat-Gazette did not properly and with specificity describe the disputed land, the
circuit court lacked jurisdiction over the matter.
The purpose of section 18-60-503 is to provide notice in cases involving the rights or
claims of unknown persons and the rights of known persons who have not been served
with process in the action. Johnson v. Brasfield, 2010 Ark. App. 321, at 3–4. The Porters do
not dispute that they were served with process or that they had notice of, and participated
in, the lawsuit. When the only persons claiming ownership of the property are parties to
the quiet-title action, the failure to give notice under the statutes does not deprive the
circuit court of jurisdiction. Id. at 4. Here, the only record owners of the property in
question—the Porters—and the only person claiming ownership of the property—Warren—
were parties to the quiet-title action and appeared before the court. Therefore, any failure
12
to comply with the applicable statutory-notice requirements did not deprive the circuit
court of jurisdiction.
B. Farm Lease Damages
The Porters and Warren (and Blackstone) entered into a five-year lease on a separate
parcel of land on January 1, 2023. The Porters leased the land for their animals to graze on
and agreed to pay Warren $500 a year. The farm lease required the Porters to pay for
fertilizer and any other expenses necessary for cultivating hay, make all necessary repairs to
the property, and maintain the fences and property. Warren unilaterally terminated the
lease on March 23, 2023, after Blackstone’s death. The Porters contend that after the lease
was terminated, they were forced to sell a majority of their livestock at a loss at auction
because they did not have the land to keep them. They also claimed that they had to buy
extra hay to feed the remaining livestock because they could no longer graze. They claim
that, as the result of Warren’s premature termination of the five-year-lease contract, they
suffered $10,020 in damages.5 The circuit court found that the Porters failed to provide
sufficient evidence to support their claim for damages related to the canceled farm lease,
and it dismissed their counterclaim. The Porters argue that the circuit court’s finding was
clearly erroneous.
The damages claimed by the Porters are consequential damages, which are damages
that do not flow directly and immediately from the breach but only from some
5
Specifically, the Porters calculated a loss of $2,020 from the sale of their livestock and a loss of $8,000 for the purchase of forty extra hay bales to feed their livestock at $50 a head every year for four years.
13
consequence or result of the breach. Reynolds Health Care Servs., Inc. v. HMNH, Inc., 364
Ark. 168, 175, 217 S.W.3d 797, 803 (2005). In breach-of-contract cases, consequential
damages are recoverable when they were fairly within the contemplation of the parties.
Spann v. Lovett & Co., Ltd., 2012 Ark. App. 107, at 16–17, 389 S.W.3d 77, 91. Although
recovery will not be denied merely because the amount of damages is hard to determine,
damages must not be left to speculation and conjecture. Optical Partners, Inc. v. Dang, 2011
Ark. 156, at 15, 381 S.W.3d 46, 55.
Here, the Porters calculated their damages by subtracting the sales price of the
livestock from the original purchase price. However, other evidence showed that the
Porters did not subtract any costs saved by the sale of the animals, such as feeding costs or
veterinary care. They also gave away a mule. Further, in calculating damages associated with
the purchase of additional hay, the Porters presented no evidence of their savings from not
having to maintain the grazing land, pay for fertilizer and fuel, maintain and install gates
and fences, and replace and repair equipment. This left the circuit court to speculate as to
the actual amount of damages. Therefore, we cannot hold that the circuit court clearly
erred in finding that the Porters presented insufficient evidence of damages due to
Warren’s termination of the farm lease.
Affirmed on direct appeal and on cross-appeal.
KLAPPENBACH, C.J., and HARRISON and MURPHY, JJ., agree.
BROWN and VIRDEN, JJ., agree in part and dissent in part.
14
WAYMOND M. BROWN, Judge, dissenting. There is no disagreement that the
disputed tract (the Field) is contained within the legal description of the tract owned by the
Porters (Porter Property). However, Warren, who acquired her property (Warren Property)
from her longtime partner, Warren Blackstone, upon his death in 2023, contends that the
Field lies within the fence line that encloses her property, which encompasses
approximately eighty acres. She states that she and her predecessors in interest, dating
back to the early 1980s, understood that the Field was part of the Warren Property and
that no one took issue with ownership of the Field until the Porters purchased the
adjoining land in 2022.
Sam Fancher testified that his father bought the Porter Property in 1983. There is a
fence line between the Warren and Porter Properties, with the Field lying on Warren’s side
of the fence line. Fancher acknowledged that the Field was included in the deed to the
Porter Property; however, he was unsure if he “legally owned” it. He testified that his
father, who bought the property from the Pattons, never claimed the Field. Fancher stated
that his father and the Pattons understood the fence to be the boundary line between the
two properties.1 He testified that he also understood the fence to be the boundary line,
with the Pattons owning the Field. Fancher stated that he never crossed the fence line to
claim ownership of the property at issue.
1
The Pattons owned both the Warren Property and the Porter Property at one point.
Fancher further testified that the fence line was in existence when his parents
purchased the Porter Property in 1983 and that his parents never utilized the Field located
on Warren’s side of the fence. He stated that Warren and Blackstone used the Field.
Fancher stated that once he took ownership of the Porter Property, he treated the fence as
the boundary line just as his father had done. Fancher agreed that he acquiesced in the
fence being the boundary line and that, since 2006 when he obtained title of the Porter
Property, Warren and Blackstone consistently maintained the Field. Fancher testified that
Warren and Blackstone paid him to assist in maintaining the Field.
On cross-examination, Fancher acknowledged that only a few T-posts remain of the
fence that extended north and south between the properties in question. However, he
clarified that the fence was “up” before he sold the Porter Property to the Porters. Fancher
stated that there are “still pieces of it in existence” but that much of the fence was washed
out by a big flood in 2020.
Fancher stated that he has lived with Warren since before he sold the Porter
Property to the Porters. He testified that, although he went to prison and “paroled out to”
Warren, he would not just agree with what Warren wanted him to agree with. Fancher
stated that he mowed the Field “off and on” for Warren and Blackstone for several years to
make extra cash.
Fancher testified he did not tell the Porters that the Porter Property extended across
the Field to a T-post; he stated that he thought it did at one point, but he “didn’t know
that [he] owned it anymore because [Warren and Blackstone] maintained it for more than
16
years.” Fancher also testified that a fence runs along the northern boundary of the Field
near a bluff line. Due to the rocks separating from the bluff, the fence is up to six feet
away from the edge of the bluff in some areas. Fancher said that Warren and Blackstone
leased out the Field for running livestock, including cows and horses.
On redirect, Fancher acknowledged that he conveyed the Porter Property, including
the Field, to the Porters via a warranty deed. He understood that his testimony regarding
Warren’s ownership of the Field would adversely affect him.
The Warren Property is enclosed by a fence. The Field is within the fenced
enclosure. Warren stated that it has been that way since before 2004 when she and
Blackstone acquired the Warren Property. Warren testified that the fence, constructed of
T-posts and four-strand barbed wire, was heavily damaged by floods in 2020; however, the
T-posts that remain are evidence of the fence line. She also stated there was a fence along
the bluff, but she no longer allows anyone in that area to maintain the fence after a
surveyor was badly injured close to the bluff line.
Warren understood the fence line to be the property line. When Blackstone
purchased the Warren Property from the Pattons, the Pattons were maintaining and
utilizing the Field for their livestock. Warren and Fancher discussed the boundary line
between their respective properties, and both understood the fence to be the boundary.
Warren and Blackstone maintained the Field and paid others, including Fancher, to
maintain the Field. Warren stated that Fancher never asserted ownership of the Field.
She has had possession of that property since 2004 and asserted ownership over it. During
17
that time, no one else attempted to assert ownership over the Field until the Porters
purchased the Porter Property from Fancher in December 2022.
James Goynes testified that he has been a handyman on the Warren Property,
including the Field, for eight years. He is paid to brush hog, mow, weed eat, and care for
horses, among other things. There has been a fence line since he began working on the
property, although Goynes admitted that much of the fence was damaged in a flood. He
also stated that the last time he was near the bluff, the fence line was still there. Goynes
stated that he maintained the Field until Porter sent him a text message when he was brush
hogging to get off the property and threatened to call the sheriff.
Porter testified that Fancher told him that the T-post in the southwest corner of the
Field was the boundary line to his property, not the fence line. Porter stated that when he
had the property surveyed, the surveyor put a stake right next to that same T-post to mark
the west boundary line. That T-post is on the disputed property in what is essentially
Warren’s yard. He stated that there is no standing fence, only some T-posts remain—two
standing and two bent over—from the fence that was along the tree line running north
from the county road and cattle guard. The first ten-foot section running north from the
cattle guard to the first T-post has two-hand strung wires, the remainder of the fence wire is
on the ground. Porter also testified that there is no fence along the bluff line. He said
Fancher told him to keep the Porter Property purchase a secret from Warren because he
did not want to upset her.
18
Warren argues that, given the evidence and testimony presented, the circuit court
erred by not finding a boundary by acquiescence. 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. 2 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. 3 In
such circumstances, the adjoining landowners and their grantees are precluded from
claiming that the boundary so recognized and acquiesced in is not the true one, although it
may not be.4 A boundary by acquiescence is usually represented by a fence, a turnrow, a
lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing
line.5 Whether a boundary line by acquiescence exists is to be determined on the evidence
in each individual case.6 Moreover, a boundary line by acquiescence may exist without the
necessity of a prior dispute.7
2
Myers v. Yingling, 372 Ark. 523, 279 S.W.3d 83 (2008).
3
Id.
4
Id.
5
Durham, supra.
6
Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005).
7
Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991).
19
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 principles of
acquiescence and adverse possession.8 A fence, by acquiescence, may become the accepted
boundary even though contrary to the survey line.9 Even if there never was an express
agreement to treat a fence as the dividing line between the two parcels of land, such an
agreement may be inferred by the action of the parties. 10 As a result, tacit acceptance of a
fence line or other monument as the visible evidence of the dividing line for a long period
of time manifests apparent consent.11 The property owners and their grantees are then
precluded from claiming that the boundary line thus recognized and acquiesced in is not
the true one, although it may not be on the survey line.12
Warren contends that the circuit court disregarded evidence that supported her
claim that the parties and/or their predecessors treated the fence as the property line
thereby creating a boundary by acquiescence. She argues that the evidence reflected the
mutual recognition of adjoining landowners that the fence was the boundary. Here,
Warren and Fancher testified that the fence operated as the boundary line for decades
before the current lawsuit.
8
Hipp v. Cottrell, 2025 Ark. App. 179, 709 S.W.3d 844.
9
Id.
10
Id.
11
Id.
12
Id.
20
Fancher testified that his father bought the Porter Property in 1983 and never
claimed ownership of the Field nor did he utilize the disputed property. He stated that his
father and the Pattons, who owned the adjoining property, understood that the Pattons
owned the Field and that the fence divided their properties.
Fancher said that when he took ownership of the Porter Property in 2006, he
continued to treat the fence line as the boundary just as his father had done. He testified
that he acquiesced in the fence being the boundary line and that Warren owned the Field
west of the fence. Fancher and Warren stated that Warren utilized and maintained the
Field and that the only way to access it was to go through Warren’s gated fence.
When the Pattons owned the Warren Property, they ran livestock on the Field.
After the Pattons sold the property to Blackstone in 2004, Blackstone and Warren leased it
to run livestock. Warren also paid Fancher, Goynes, and others to maintain the Field.
In light of the foregoing, I would hold there is sufficient evidence that there was a
tacit agreement between adjoining landowners for many years that the fence served as the
boundary line. In fact, it is difficult to imagine a clearer set of facts supporting
acquiescence than here, where the adjoining landowners both testified that, for decades,
they recognized the fence line as the boundary, and both agreed that Warren owned the
disputed property. Considering the evidence in this case, I would hold that the circuit
court clearly erred in finding that Warren did not acquire the Field by boundary by
acquiescence.
21
Briefly addressing the Porters’ arguments, they contend there was insufficient proof
of acquiescence because Fancher made inconsistent statements. There is a slight
misrepresentation of the testimony, whether by intention or mistake. For example, the
Porters argue that Fancher stated he never crossed the fence line while he owned the
property but later testified that he lived with Warren on her side of the fence line for
several years, clearly crossing the fence line. The transcript demonstrates that Fancher
clarified that he never crossed the fence line to claim ownership of the Field. He also readily
testified that he was routinely on the disputed property to perform maintenance work for
Warren for which he was paid. It is illogical to believe that Warren paid Fancher (and
others) to maintain his own property.
The Porters also assert that “Fancher was clearly in [Warren’s] control[,]” implying
that Fancher provided false testimony to protect his close relationship with Warren. While
the Porters challenge Fancher’s credibility, the circuit court did not make a finding that
Fancher was not credible. Additionally, despite requesting proposed findings of fact and
conclusions of law from both parties, for whatever reason, the circuit court adopted
neither. Instead, the circuit court entered a general order finding the evidence insufficient
to support Warren’s quiet-title claims.
The Porters also direct our attention to testimony regarding the condition of the
fence that Fancher and Warren stated they recognized as the boundary of their properties.
The Porters contend that the fence was not visible in some places and consisted of only a
few T-posts in other areas, and the wire was down and buried under debris except for the
22
area near the cattle guard. The Porters contend that the state of the fence cast doubt that
it served as a visible boundary line.
In Camp v. Liberatore,13 this court stated,
The appellants finally argued that the court erred in establishing the old fence line
as the boundary because it had become so deteriorated over the years that it could not be
accurately located at the time appellees reconstructed the fence. There was sufficient
evidence before the court from which it could, and did find, that the remnants of the old
fence line were sufficiently visible to enable appellees to accurately locate them on the
ground; the appellees erected the fence at all times one foot south of that old fence line;
and hence that the boundary line established by acquiescence and agreement was a line
located one foot north of the existing fence. We cannot say those findings are clearly
erroneous.
Although Porter testified that there was no standing fence line, during his testimony
he was asked if he could walk the fence line if they went to the property right now, and his
response was “I could.” This indicates that the fence line is identifiable and visible, despite
the state of disrepair.
Moreover, our case law on acquiescence does not require that the acquiescence
must have originated or arisen between the current landowners. 14 Instead, this court has
held that the determination of a boundary by acquiescence binds adjoining landowners
13
1 Ark. App. 300, 305, 615 S.W.2d 401, 404 (1981).
14
Myers, supra.
23
and their grantees.15 Here, Fancher testified that, since 1983, his father recognized the
fence as the boundary. He stated that the adjoining landowners at that time, the Pattons,
also recognized the fence line as the boundary and used the Field up to the fence line.
This continued when the respective properties were acquired by Blackstone and Warren in
2004 and Fancher in 2006. Hence, acquiescence attached before Warren and Fancher
took ownership. Thus, under our case law, as Fancher’s grantee, the Porters are precluded
from disputing the boundary line that was established by acquiescence.
The majority acknowledges that the evidence discussed above “may support” a
finding of boundary by acquiescence but states that other testimony supports a finding to
the contrary. For example, the majority points to a 2006 survey Blackstone had prepared
that showed the Field was not conveyed to him. However, Blackstone’s awareness of the
deeded property line is of no consequence here. Boundary by acquiescence does not
require a mistaken belief as to the true boundary line. The majority cites no case law
stating that knowledge bars a boundary-by-acquiescence claim. Instead, it focuses on the
adjoining landowners’ long-term mutual conduct and tacit acceptance of a visible dividing
line rather than knowledge or ignorance of the surveyed boundary. The same analysis
applies to any knowledge that Fancher had as to the true boundary line.
From my review, the evidence is not as conflicting or inconsistent as the majority
writes. After considering the evidence and testimony presented, I would hold that the
circuit court’s dismissal of Warren’s boundary-by-acquiescence claim was clearly erroneous.
15
Id.
24
Because I would reverse the circuit court’s finding on Warren’s boundary-byacquiescence claim, I would not reach the merit of her adverse-possession claim.
Further, the circuit court dismissed Warren’s claims for trespass, nuisance,
negligence, and punitive damages because they hinged on her ownership of the Field.
Because I would reverse the circuit court’s finding and hold that Warren established
boundary by acquiescence, I would remand to the circuit court for consideration of her
tort claims.
I agree with the majority’s disposition of the points on cross-appeal.
I respectfully agree in part and dissent in part.
Virden, J., joins.
Myers & Woods Law Firm PLLC, by: Andrew J. Myers, for appellant.
William Alex Allred, for appellees.
25