Boundary/fence issue in Arkansas

[arkansas angler]

Greetings, all. The entire length of the retaining wall built between my house and the home next door in 1954 doesn't follow the actual property line. However, previous owners on both sides have maintained their yards and trees according to the boundary implied by the wall and the difference in elevation on either side of it (1 to 3 feet). The actual property line follows the wall to a certain point, then runs at a slight angle to the wall, creating a long, extremely narrow triangle that's perhaps 60 feet long and no more than 3 feet at its widest point.

The new owner next door intends to squeeze a new driveway between the houses and plans to move a portion of the existing retaining wall about a foot toward my house to claim more space for the new driveway. My property is about a foot or so higher than his in that area, and the foot of space he intends to create will cut into what little buffer I have between the retaining wall and my own driveway. The change will make it even more difficult for larger vehicles, such as delivery trucks or even something on the scale of a Suburban to easily serve my house.

In addition, part of the fence he plans to build will lie on top of a portion of the retaining wall, but would ultimately deny me use of a sliver of property, formed by that narrow triangle I just described--and that little piece of land is pretty important to me. (I used to garden in that part of the yard before I got cancer a couple of years ago, and there's a well-established chipmunk burrow next to the wall, and we treat our chipmunks like pets and train them to take peanuts from our hands.)

Based on the past use of the property according to the boundary implied or established by the wall, is there anything I can do to stop his driveway and fence projects? I've owned my home for about 11 1/2 years, and the house next door, until now, has always been used as a rental property, so no one has ever challenged the use of the wall as the boundary. The previous owners of my home even planted several trees in the triangular space that's now being disputed because they and the previous owners next door also believed the retaining wall defined the property line. Thanks in advance for any advice you can offer. -- Steve

[aaron]

The proposed changes recapture part of the land at issue for the neighbor, who is the actual title holder of that land?

The retaining wall has been treated as if it is the boundary line since 1954? Throughout that time, have people said, "Even though it's not technically the property line, we agree that it will be the property line"? Or has it been, "If we ever replace the wall we can fix this, but until such a time it makes more sense to leave things the way they are"?

[Litigator]

You can have a boundary by acquiescense where parties agree that "X" is the property boundary whether it is the true line or not. Before any major changes get underway you may want to go ahead and contact an attorney about possible injunctive relief. From what you have stated it appears that even if the retaining wall is found to be the property line, the neighbor intends to remove the retaining wall over on you and I do not know what legal basis he would have for doing that. If he were to do that and you don't take any action for 7 years then a court may well find he owns out to where the new retaining wall will be placed.

[aaron]

The very recent (unpublished) case, Southall v Hill, outlines acquiescence in Arkansas:

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. Id. It is also settled law that a boundary line by acquiescence may exist without the necessity of a prior dispute. Walker v. Walker,8 Ark. App. 297, 651 S.W.2d 116 (1983). 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. Id. at 298-99, 651 S.W.2d at 117.

This, of course, is why I was asking whether there was in fact acquiescence to the placement of the wall as the boundary line, as oppose to an agreement to tolerate the misplaced wall despite the error until some later date.

[Litigator]

Thanks, Aaron. Good cites.

[seniorjudge]

Arkansas Angler, the other lawyers will agree with me here:

This is a heavily fact-specific lawsuit.

That means you need to be able to prove a ton of facts (not conclusions, not opinions, but concrete and hard facts), to win your case.

For example:

FACT: "Your honor, here is a survey showing [whatever]."

OPINION: "We discussed this a lot."

See what I mean?

[arkansas angler]

Aaron, Litigator, and seniorjudge, thank you so much for all of your informative discussion and replies. Aaron, yes, the new property owner intends to recapture a bit of property that, according to his survey, is on "my" side of the low retaining wall between our houses. (And, honestly, I don't really question the survey--I just question his right to take the use of this few square feet of property away from me after I've maintained it and used it for 11 1/2 years...more on that below.)

As for your question about the properties' history, I believe the wall was erected in 1954 when both houses were built. The widow from whom we bought the house walked us around the property and described the retaining wall as the boundary. Although I don't have the dates (or access to her now), she and her husband were comfortable enough with their neighbors (or the wall as a boundary) to plant a half-dozen trees on their side of the wall. Three of them are pines that are now 25-30 feet tall, I'd guess, so they've been there for a while.

Litigator, I've never had an agreement for the use of this sliver of property--or even a discussion about it--with anyone until now, because the house next door had been a rental property with a succession of undesirable tenants who kept to themselves and rarely mowed the yard or maintained the property. I understood it to be mine when I bought the house, and no one until now has challenged my use of it.

The retaining wall follows only a portion of the boundary line. The neighbor plans to install a driveway in the ridiculously-tight space between houses and intends to tear down a portion of the wall that's roughly the width of his house, then rebuild it to gain about a foot of additional width for that section of his driveway.

Part of my driveway also parallels the retaining wall, (and is about a foot higher), so his plan would reduce a portion of the the "shoulder" between my driveway and the retaining wall by about 1/3. Parts of his driveway would actually be a couple of inches wider than the narrowest part of mine. It's already tricky for large vehicles to navigate a curve in the driveway that's just past the area of contention, so the neighbor's plan has the potential to make it very difficult or impossible for a moving van, for example, to service my home.

The neighbor, incidentally, has the use of the original driveway on the opposite side of his house, which seems have suited all comers since 1954. It is admittedly steep and needs to be graded and reworked, and the neighbor says that option is too expensive to pursue. Does it matter that his plan will deny me the use of property I've enjoyed and maintained for 11 1/2 years and could deny certain types of vehicles access to part of my property? I can't claim a total loss of access, but could the concept of an access easement be applied here?

Seniorjudge, thanks for your advice about sticking to the facts, too. As you can tell from this message, I don't have that many--but I think some of them are fairly compelling. I'm also just starting to dig into local building code and requirements for laying out subdivisions to see if I can find any compliance issues with his proposed project.

My wife and I aren't particulary interested in spending much money to handle the issue in court, which would likely escalate an already-uncomfortable situation. Is it possible for a layman to seek an injunction, please? Because his project involves a curb cut, city approval is required, and I hope to find out tomorrow what I can do to protest the plan in some sort of city government forum.

Thanks again, and I'll appreciate any additional advice you can offer. -- Steve in Little Rock

[arkansas angler]

Here's a quick update for those who are patient enough to read all this and stay tuned in. I've talked to city officials and the neighbor's architect today and was told that:

* No municipal or building codes would prevent the neighbor from running a new driveway between houses (regardless of how goofy the idea may be).

* The city doesn't care that his project might make the only access to the rear of my house (and my garage) more difficult to navigate for large vehicles as long as it complies with code.

* Although his project involves a curb cut on a major artery, it's not a public works issue, so no formal forum for discussing/protesting it before city officials exists.

* The plan he will submit to the planning and development department does NOT mention moving a portion of the retaining wall. However, as long as everything happens on his side of the property line, the city doesn't care about the discrepancy and will issue the building permit.

Other than hiring counsel or reopening negotiations with the neighbor, does anyone have any ideas for avenues I might explore to stop or slow down this project? Again--thank you all for your time and advice. -- Steve