Rancher: Don't fence me in

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 10, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

In the case Barnett v. Gomance, Keith Gomance's mother, Wanda Stafford, owned a cattle ranch neighboring another cattle ranch owned by Shelby and Linda Barnett.

The ranches were separated by a 40-plus-year-old, tree-to-tree wire fence that had been built and rebuilt since a verbal agreement between Gomance's father and Barnett's predecessor in interest, under which both parties acknowledged that the fence was built 30 feet inside the Gomance ranch's property line.

The parties also agreed that both Barnett and the previous owners could graze cattle and otherwise operate their ranches up to the fence line.

According to Gomance, the fence was simply a wire nailed between the trees to keep the parties' cattle on their respective properties, and was erected to avoid the costs of constructing and maintaining a more robust fence, as the fence washed out every time there were major rains.

When Barnett purchased his ranch, he obtained a survey, which showed that the fence was not on the property line, but Barnett testified that he simply disagreed with the survey. Additionally, Gomance's father testified that he had discussed the property line with Barnett, who had acknowledged that the fence line was not on the property line.

After a fire destroyed the wire fence, Barnett built a new fence to contain his cattle. Gomance and his mother filed suit, claiming Barnett's construction of the permanent fence constituted a trespass on their property.

Barnett counterclaimed that he had acquired title to the disputed 30-foot strip through adverse possession or, in the alternative, that the boundary line had been moved to the fence line by acquiescence.

The trial court found in favor of Gomance and his mother, rejecting Barnett's claim to own the disputed strip of land. The court explained that Barnett had failed to make the showing required under common law and Arkansas' adverse possession statute, A.C.A. Section 18-11-106.

In particular, the trial court articulated, Barnett had "failed to show that the use by the (Barnetts) was notorious, hostile, and exclusive or that the (Barnetts) had taken any action to put (Stafford) on notice that they were seeking to convert the permissive use into a claim of ownership."

Additionally, the trial court noted that Barnett could not show that any of his predecessors in interest believed that the fence was the boundary line.

Barnett appealed, and the appellate court affirmed the trial court's ruling. On appeal, the court explained that Arkansas law does allow for a fence line to become the boundary line by acquiescence where "adjoining landowners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time."

In this case, however, there was no evidence that the parties mutually agreed that the fence line was the boundary line. In fact, there was significant evidence that the parties mutually agreed that the fence was not the boundary line, as well as a survey that showed the fence line was contrary to the boundary line.

Accordingly, the trial court's rejection of Barnett's claim of boundary by acquiescence was not in error, and was upheld by the Court of Appeals.

Similarly, the Court of Appeals found that Barnett's adverse possession claim was not supported by the evidence. Because Barnett's predecessor was given permission to use Gomance's land, and never notified Gomance's family of his intention to convert that permissive use into an adverse use, Barnett's claim to the property -- if any -- began only after his 1997 purchase of the property.

Accordingly, Barnett was required to show not only that "he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile and with the intent to hold against the true owner," but also, under Arkansas' 1995 adverse possession statute, that Barnett had paid property taxes on the strip of land.

Barnett introduced evidence of property tax payment in an untimely manner, only after the trial was over.

Additionally, because the original use of the property by Barnett's predecessor began with permission, Arkansas law presumes that Barnett's use was also permissive, in the absence of any evidence that Gomance's family was put on notice that Barnett or previous owners were holding with "openly, notoriously, and with the necessary hostility."

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