{ "id": 1694105, "name": "Neely v. Jones", "name_abbreviation": "Neely v. Jones", "decision_date": "1960-09-12", "docket_number": "5-2170", "first_page": "411", "last_page": "413", "citations": [ { "type": "official", "cite": "232 Ark. 411" }, { "type": "parallel", "cite": "337 S.W.2d 872" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "227 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705605 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/227/0100-01" ] }, { "cite": "231 Ark. 928", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697199 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/231/0928-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0198-01" ] } ], "analysis": { "cardinality": 309, "char_count": 4024, "ocr_confidence": 0.506, "pagerank": { "raw": 3.2140994054612853e-07, "percentile": 0.8666800651312103 }, "sha256": "e0c76860e4f8484038b918e5438f8c5920fbf74144ad0f51b270863f1b3d4a18", "simhash": "1:40768a95603bc2db", "word_count": 699 }, "last_updated": "2023-07-14T16:22:23.295937+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Neely v. Jones." ], "opinions": [ { "text": "George Rose Smith, J.\nThis boundary line dispute involves the ownership of a strip of land, less than an acre, lying between the appellants\u2019 property to the east and the appellees \u2019 property to the west. The case began as an action in ejectment but was later transferred to equity. At the close of the plaintiffs\u2019 proof the chancellor sustained a demurrer to the evidence, and this appeal is from the ensuing order of dismissal. The only question is whether the demurrer to the evidence was properly sustained. This depends, under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, upon whether the proof, viewed in its most favorable light, would have presented a question of fact for the jury if the case had been tried at law.\nThe appellees have record title to a tract of about ten acres, which includes the strip now in controversy. Some twenty or more years ago their predecessors in title erected a fence near their eastern boundary, but for some reason not disclosed by the record the disputed strip was left outside the fence. The appellants\u2019 land, a three or four acre tract, lies just east of the strip in question and includes a dwelling house that has been occupied by the appellants and their predecessors in title. Except for a few isolated acts neither the appellants\u2019 actual possession nor that of their predecessors has extended to the disputed strip, which is largely made up of gullies not suited to cultivation or other use. This litigation arose in 1959 as a result of the appellees\u2019 having moved the fence over to the true line and having thereby attempted for the first time to exercise dominion over the area in controversy.\nWe are of the opinion that the demurrer to the evidence should have been overruled, for the appellants\u2019 proof raised a question of fact as to the existence of a boundary by acquiescence. As we said in Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490: \u201cWe have frequently held that 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. [Citing cases.]\u201d In such cases the existence of a boundary line by acquiescence is an issue of fact, to be determined upon the evidence in each individual case. Thompson on Real Property (Perm. Ed.), \u00a7 3309. In the record now before us there is substantial evidence to support the view that the landowners \u2019 tacit recognition of the fence line for more than twenty years created a new boundary line.\nThe appellees rely principally upon Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199, where we said that \u201ca landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years.\u201d We adhere to the basic principle followed in the Cossey case, but there are at least two important points of distinction between that case and this one. First, there the adjoining land on the far side of the fence was wild and unimproved, so that its owner could hardly be regarded as having consciously acquiesced in the fence as a boundary line. Here the fact that both tracts have been improved and occupied might well support an inference that the fence has been accepted as the line. Secondly, the Gossey case was tried upon its merits; the question on appeal was where the preponderance of the evidence lay. Here the trial court\u2019s action in sustaining a demurrer to the evidence can be affirmed only if the plaintiffs offered no substantial testimony upon the controlling question of fact. We are unable to say that their proof falls completely short of establishing a prima facie case.\nReversed and remanded.", "type": "majority", "author": "George Rose Smith, J." } ], "attorneys": [ "Howard & McDaniel, Barrett, Wheatley, Smith \u00a3 Deacon, for appellant.", "Frierson, Walker & Snellgrove, for appellee." ], "corrections": "", "head_matter": "Neely v. Jones.\n5-2170\n337 S. W. 2d 872\nOpinion delivered September 12, 1960.\nHoward & McDaniel, Barrett, Wheatley, Smith \u00a3 Deacon, for appellant.\nFrierson, Walker & Snellgrove, for appellee." }, "file_name": "0411-01", "first_page_order": 433, "last_page_order": 435 }