Kosofsky et al v. Byler et al

Filing 61

MEMORANDUM OPINION AND ORDER. Signed by Honorable Jimm Larry Hendren on October 1, 2014. (src)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DAVID KOSOFSKY and
RUSALYN KOSOFSKY
vs.

PLAINTIFFS
CASE NO. 13-3020

MELVIN BYLER,
ANGELA BYLER, and
FLYING B RANCH, LLC

DEFENDANTS
MEMORANDUM OPINION AND ORDER

On the 25th day of August, 2014, the above captioned matter came
on for a bench trial before the Court.

Plaintiffs, David Kosofsky

and Rusalyn Kosofsky, appeared in person and were represented by
counsel. Defendants, Melvin Byler, Angela Byler and Flying B Ranch,
LLC, also appeared in person and were represented by counsel.

From

the testimony of witnesses, the documents received into evidence,
and the arguments of counsel during trial and through post-trial
briefs, the Court finds and orders as follows:
1.

Plaintiffs, David and Rusalyn Kosofsky ("plaintiffs" or

"Kosofskys"), commenced this lawsuit on January 30, 2013, seeking a
declaratory judgment that they are the rightful owners of two tracts
of real property located in Searcy County, Arkansas, and that the
defendants, Melvin and Angela Byler ("defendants" or "Bylers"), have
not acquired ownership of that property by adverse possession. They
also assert claims for trespass and ejectment.
2.

In response, the Bylers denied plaintiffs' assertions and

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filed a counterclaim wherein they alleged that they have obtained
ownership of at least some of the property at issue based on
theories of boundary line by acquiescence, adverse possession, and
prescriptive easement.
3.

On

December

24,

2013,

plaintiffs

filed

an

amended

complaint naming Flying B Ranch, LLC as an additional defendant and
setting forth the same claims as the original complaint.
FINDINGS OF FACT
4.

Based on the evidence presented at trial, the Court makes

the following findings of fact:
*

During the period extending from 2006 through 2008, the

Kosofskys purchased 77 acres of real property in Searcy County,
Arkansas.

This property will be referred to as “Property A”.

*

County Road 25 and a creek both run through Property A.

*

Within Property A there are two smaller sections of land,

identified as “Area 1" and “Area 2".

Area 1 and Area 2 are the

portions of Property A that are north of County Road 25 and through
which the creek runs.

The legal descriptions of said Area 1 and

Area 2 are as follow:
^ Area 1:
The Southeast Quarter of the Northeast Quarter of Section
20, Township 17 North, Range 18 West, LESS AND EXCEPT the
Following described Tract, to-wit: The West 350.00 feet
of the Southeast Quarter of the Northeast Quarter, lying
North of existing County Road, Section 20, Township 17
North, Range 18 West, Searcy County, Arkansas, as per West
line of said Southeast Quarter of the Northeast Quarter
2

based on a survey by Dale Lipps for Joe Rockhold, dated
June 3, 1989, and revised December 21, 1989. Subject to
existing easements, rights of ways and any property line
that has been previously established by a Court of Law.

Also, the Southwest Quarter of the Northwest Quarter of
Section 21, Township 17 North, Range 18 West, LESS AND
EXCEPT 3 acres in the Northeast corner of said forty being
described as all that part lying Northeast of where the
public road now runs, being part of the Southwest Quarter
of the Northwest Quarter of Section 21, Township 17 North,
Range 18 West.
^ Area 2:
The West 350.00 feet of the Southeast Quarter of the
Northeast Quarter, lying North of the existing County
Road, Section 20, Township 17 North, Range 18 West, Searcy
County, Arkansas, as per West line of said Southeast
Quarter of the Northeast Quarter based on a survey by Dale
Lipps for Joe Rockhold, dated June 3, 1989, and revised
December 21, 1989. Subject to existing easements, rights
of ways and any property line that has been previously
established by a court of law.
*

Flying B Ranch, LLC owns approximately 49 acres North of

Property A.
*

Flying B Ranch, LLC is an Arkansas limited liability

company wholly owned by the Bylers.
*

The

land

owned

by

Flying

B

was

previously

owned

individually by the Bylers and Bylers currently hold a life estate
interest in the property in their individual capacities.

This

property will be referred to as “Property B”.
*

The same creek that runs through Property A runs through

a portion of Property B.
*

The dispute in this lawsuit centers on the defendants’
3

claim that the true boundary between their property and the property
of the Kosofskys is a fence running along the North side of County
Road 25.

The defendants contend that they have taken the property

North of the fence running along the North side of County Road 25 by
adverse

possession,

easement.

boundary

by

acquiescence,

or

prescriptive

The property North of the fence line includes Area 1 and

Area 2 of Property A.
*

The Kosofskys contend that the true boundary between

Property A and Property B is North of the fence that runs along
County Road 25 and is properly described in the legal description of
each

deed

exchanged

transferred.

when

any

portion

of

the

property

was

This claimed boundary line will be referred to as the

“description boundary line”.
*

Joseph and JoAnne Rockhold originally owned both Property

A and Property B for many years.
*

At some point, during the Rockhold’s ownership of both

properties, County Road 25 was built through Property A and a fence
was erected along the North side of County Road 25.
*

In 1988, Rockholds leased Property B to Steve Brewer.

*

In 1991, Rockholds sold all of Property A, except for Area

2, to Gary and Linda Milam.
*

Also in 1991, Rockholds sold all of Property B to Mr.

Brewer.
*

In January 1993, Rockholds leased Area 2 (the remaining

portion of Property A still owned by them) to Jimmie Joe and Sandra
4

Morrison pursuant to a 52-year lease.
*

In June of 1994, Mr. Brewer sold all of Property B to the

Bylers.
*
LLC.

In 2010, Bylers transferred Property B to Flying B Ranch,

The deed from Bylers to Flying B did not include any portion

of Property A – specifically, it did not include any portion of
either Area 1 or Area 2.
*

In 2012, Flying B Ranch granted a life estate in Property

B to the Bylers.
*

At all times Rockholds owned Property A, they paid the

real estate taxes on the property.
*

When Milams owned Property A (except for Area 2), they

paid all real estate taxes on the property.
*

While Morrisons leased Area 2, they paid the real estate

taxes on the property for the Rockholds in accordance with the terms
of the Lease Agreement between the Rockholds and the Morrisons.
*

In April 2006, Milams sold all of Property A, except for

Area 2 (which Milams did not own and which was still owned by the
Rockholds), to the Kosofskys.
*

When purchasing the property, the Kosofskys walked the

property with a realtor -- including the area north of County Road
25 by the creek.
*

On several occasions, Mr. Kosofsky placed some posted

signs; marked trees on Area 1 and Area 2 with purple paint; and had
Property A surveyed.
5

*

Kosofskys have paid all real estate taxes on the real

estate comprising Property A from and after the times they acquired
legal title to each portion of it.
*

After Kosofskys purchased Property A (except for Area 2),

Mr. Kosofsky spoke with the Bylers on the telephone in 2007, and,
after the telephone conversation, Kosofskys and Bylers exchanged a
number of email messages concerning the construction of a fence and
a survey of the property.

These conversations and messages related

to the placing of a fence along the description boundary line and
did not relate to the existing fence along the North side of County
Road 25.
*

During the email exchange, Mr. Kosofsky stated to the

Bylers: “As discussed on the telephone, Rusalyn and I will continue
to grant permission for your cows to come on to our property while
you and I plan and build the fence. . . .”
*

By 2008, both the Rockholds had died.

Their heirs then

filed a quiet title lawsuit in the Circuit Court of Searcy County,
Arkansas to quiet title to Area 2 in their favor.
*

Bylers did not participate in the quiet title action.

*

The

Circuit

Court

of

Searcy

County

found

that

all

requirements for a quiet title action had been satisfied and quieted
title in the heirs of the Rockholds.
*

Later in 2008, the Rockholds’ heirs sold to the Kosofskys

Area 2 of Property A.
*

After Kosofskys purchased Area 2, Mrs. Morrison, on behalf
6

of herself and her late husband, terminated the 52-year lease
agreement on Area 2 in return for a payment of consideration from
the Kosofskys.
*

In April of 2008, Mr. Kosofsky obtained a survey of

Property A.

The survey results showed the boundary line between

Property A and Property B as it is shown on the legal description in
the deeds –- the description boundary line.
*

Mr. Byler testified that he was aware of the survey and

that he spoke to the surveyors when it was being done.
*

In January of 2013, Mr. Kosofsky had a face to face

meeting with Mr. Byler. During that meeting, Mr. Kosofsky attempted
to revoke permission for Mr. Byler’s cattle to be on his property
and, in response, Mr. Byler told Mr. Kosofsky that he had taken some
of Property A by adverse possession.
*

Mr. Brewer testified that he showed Mr. Kosofsky what he

considered to be the boundary between Property A and Property B and
that boundary was consistent with the survey boundary line.

The

Court notes and the survey boundary line and the description
boundary line are the same.
*

Mr. Brewer testified that he did not consider County Road

25 to be the boundary between Property A and Property B.
*

Mr. Brewer testified that Mr. Rockhold never told him that

County Road 25 was the boundary between Property A and Property B.
*

Mr. Brewer kept cattle on Property B.

*

Mr. Brewer allowed his cattle to cross the survey boundary
7

line and enter Property A.
*

Mr.

Brewer

testified

that

he

had

a

“neighborly

understanding” with Mr. Milam that he could keep cattle on Area 1 of
Property A.
*

Mr. Brewer also testified that he felt he had permission

from the Morrisons and Rockholds to allow his cattle on Property A.
*

Mr. Brewer testified that he showed Mr. Byler the true

property lines (including the survey boundary line) when he sold
Property B to the Bylers.
*

Mr. Brewer testified that he never intended to adversely

possess any of Property A.
*

Mrs. Morrison testified that Mr. Byler asked her for

permission to run cattle in Area 2 of Property A and that she gave
him such permission as long as he kept the fence up.
*

Mrs. Morrison testified that Mr. Byler never claimed to

own Area 2 of Property A.
*

In deposition testimony which was presented in evidence,

Mr. Milam testified that he believed the surveyed property line to
be the accurate boundary of Property A.
*

Mr. Milan said that he had a conversation with Mr. Byler

during which he gave Mr. Byler permission to allow cattle on
Property A (with the exception of Area 2).
*

Mr. Milam stated that Mr. Byler once offered to purchase

Property A (except for Area 2) from him but he told Mr. Byler that
the property he owned was not for sale.
8

*

Mr. Byler testified that he hasn’t tried to keep the

Kosofskys out of the disputed property.
*

On separate occasions, Mr. Byler offered to purchase all

or part of the disputed property from both Mr. Milam and Mr.
Kosofsky.
*

Bylers kept the fence along County Road 25 in repair

throughout their use of the dispute property.
*

In addition to running cattle on the disputed property,

Bylers have cleared brush on it; have mowed some of it; and have
maintained a herd of goats on it.
*

The Court finds the testimonies of Steve Brewer, Gary

Milam and Sandra Morrison are credible, consistent and supportive of
David Kosofsky’s claims and testimony.
testimonies

of

Mr.

Byler

and

Mrs.

In areas wherein the

Byler

conflict

with

the

testimonies of the foregoing witnesses, the Court credits and
believes the other witnesses.
CONCLUSIONS OF LAW
ADVERSE POSSESSION
5.

Under Arkansas law, to prevail on a claim of adverse

possession a claimant must satisfy both common-law and statutory
elements.

Parkerson v. Brown, 430 S.W.3d 864 (Ark. App. 2013).

To prove the common-law elements of adverse possession, the
claimant must establish that his possession was actual, open,
notorious, exclusive, hostile in character, accompanied by an intent

9

to hold adversely against the true owner, and continued for seven
years.
In

addition,

in

1995,

the

General

Assembly

added,

as

a

requirement for proof of adverse possession, that the claimant prove
color of title and payment of taxes on the subject property or
contiguous property for seven years.1
6.

A.C.A. 18-11-106.

Based upon the evidence and the Court’s assessment of the

credibility of the witnesses, the Court finds that the Bylers’ use
of the disputed property was permissive and further concludes that
defendants have not met the requirements necessary to establish
title to the disputed property by adverse possession.
ACQUIESCENCE
7.

According to Arkansas law, “[a] fence, by acquiescence,

may become the accepted boundary even though contrary to the survey
line.

The general rule is 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.” Boyette
v. Vogelpohl, 214 S.W.3d 874, 878 (Ark. App. 2005).

See also

Summers v. Dietsch, 849 S.W.2d 3 (Ark. App. 1993).
While there must be agreement to the acceptance of a boundary
line, the agreement need not be an express agreement – rather, it
“‘may be inferred by the action of the parties.’” Id. quoting

1
If the claimant’s rights to the disputed property vested before 1995, he need not
comply with the 1995 statutory change. Sutton, 387 S.W.3d 185 (Ark. App. 2011).

10

Kittler v. Phillips, 437 S.W.2d 455, 456 (Ark. 1969).
8.

The Court is not persuaded by the evidence presented that

anyone other than Mr. Byler ever acquiesced –- silently or otherwise
–- to the notion that the fence along County Road 25 had become the
new boundary between Property A and Property B.
The evidence contains nothing to support a conclusion that the
actions of any previous record landowner of Property A resulted in
acquiescence to the notion that the fence along County Road 25 had
become the new boundary line between Property A and Property B.
It seems clear that everyone other than Mr. Byler believed and
acted upon the notion that his use of portions of Property A was by
permission.

Mr. Byler never suggested otherwise until Mr. Kosofsky

attempted to withdraw that permission.

Thus, the Court sees no

basis for a finding that there was any silent agreement –- in which
anyone acquiesced -- to establish the boundary claimed by Bylers.
PRESCRIPTIVE EASEMENT
9.

A prescriptive easement is acquired in a manner similar

to adverse possession.

Horton v. Taylor, 422 S.W.3d 202, 206 (Ark.

App. 2012).
Permissive use of an easement “cannot ripen into an adverse
claim without clear action, which places the owner on notice.”
Roberts v. Jackson, 384 S.W.3d 28, 31 (2011).
10.

As discussed with respect to Bylers’ adverse possession

and acquiescence claims, the permissive nature of the defendants’
use

of

the

property

likewise

prevents
11

them

from

meeting

the

requirements for establishing a prescriptive easement.
Additionally, the size of the disputed property does not lend
itself to a taking through prescriptive easement but, rather, is
more consistent with the fact that Bylers were being allowed to use
the

disputed

property,

and

the

creek

running

through

it,

by

permission of the rightful owners thereof.
11.

It follows, therefore, that the Court finds no merit in

defendants’ claims based upon adverse possession, acquiescence or
prescription

and

concludes

that

plaintiffs

are

entitled

to

a

declaratory judgment that they are the legal and rightful owners of
Property A –- including both Area 1 and Area 2.
IT IS, THEREFORE, CONSIDERED ORDERED ADJUDGED AND DECLARED:
*

that

defendants’

claims

based upon

adverse possession,

acquiescence and prescriptive easement are without merit and that
they should
*

be, and hereby are, dismissed with prejudice; and

that plaintiffs are the legal and rightful owners of the

disputed two tracts of real property located in Searcy County,
Arkansas –- being Area 1 and Area 2 of Property A as identified in
the text of this opinion – and they are entitled to the immediate
possession of said two tracts.

It is so declared.

IT IS SO ORDERED this 1st day of October, 2014.
/S/JIMM LARRY HENDREN
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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