Abbott v. Prothro, 5-1324

• Decision Date: 11 November 1957
• Docket Number: No. 5-1324,5-1324
• Citation: 307 S.W.2d 225,228 Ark. 230
• Parties: T. O. ABBOTT, Appellant, v. Ben S. PROTHRO et ux., Appellees.
• Court: Arkansas Supreme Court

Page 225

307 S.W.2d 225

228 Ark. 230

T. O. ABBOTT, Appellant, v. Ben S. PROTHRO et ux., Appellees.

No. 5-1324.

Supreme Court of Arkansas.

Nov. 11, 1957.

Rehearing Denied Dec. 16, 1957.

T. O. Abbott, pro se, and Spencer & Spencer, El Dorado, for appellant.

Surrey E. Gilliam and Melvin E. Mayfield, El Dorado, for appellees.

GEORGE ROSE SMITH, Associate Justice.

This is a boundary line dispute involving a strip of land forty feet in width. The suit was brought by the appellant Abbott, who asked for a decree quieting his title to the land in controversy. The appellees answered with an assertion of title in themselves and asked that their own title be quieted. At the trial the questions presented were chiefly issues of fact. The chancellor entered a decree dismissing Abbott's complaint and confirming the Prothros' title.

The parties own lands lying on opposite sides of a concrete highway in Union county, the appellees' property being a forty-acre tract east of the highway and the appellant's property being a smaller platted block on the west side of the paved road. The two tracts abut along the entire length of the appellant's east boundary, which is a north-south line 312.50 feet long. Abbott contends that this common boundary line runs approximately down the center of the concrete pavement. The appellees assert that the boundary is a line that parallels the highway forty feet to the west and that now coincides with a row of utility poles along the western edge of the cleared public easement. Alternatively, the appellees insist that the line they contend for has been established by agreement or acquiescence on the part of former owners of the two tracts.

On the first point, the actual position of the true line, the evidence preponderates decidedly in favor of the appellant. Here the only problem is that of determining the correct location of the line which, according to the original government survey, divides the forty acres now owned by the Prothros from the adjoining forty acres to the west, of which Abbott's land is a part. The only surveyor to testify, J. C. Godwin, was called as a witness by the appellant. Godwin's survey shows that the disputed line runs along the center of the concrete pavement, as Abbott contends. We have studied Godwin's testimony closely and find it altogether convincing.

The appellees, citing Stevens v. French, Ark., 302 S.W.2d 286, argue that Godwin's survey should be disregarded because he took as his starting point a concrete monument which he thought to have been set by the county authorities. Godwin's measurements, however, tied in with several other established monuments and cannot be said to rest...