McEntire v. Robinson, 5--4332

• Decision Date: 11 December 1967
• Docket Number: No. 5--4332,5--4332
• Citation: 421 S.W.2d 877,243 Ark. 701
• Parties: J. L. McENTIRE et al., Appellants, v. Curtis ROBINSON, Appellee.
• Court: Arkansas Supreme Court

Page 877

421 S.W.2d 877

243 Ark. 701

J. L. McENTIRE et al., Appellants, v. Curtis ROBINSON, Appellee.

No. 5--4332.

Supreme Court of Arkansas.

Dec. 11, 1967.

Rehearing Denied Jan. 15, 1968.

Brockman & Brockman, Pine Bluff, for appellants.

George Howard Jr., Pine Bluff, for appellee.

BROWN, Justice.

Appellants, J. L., J. C., and W. A. McEntire, brought this suit against their adjoining neighbor, appellee Curtis Robinson, to establish the boundary line between the parties. The McEntires claimed title up to a line fixed by the county surveyor; Robinson claimed title by adverse possession up to a fence line. When all the litigants completed their testimony the chancellor ruled that the McEntires' complaint should be dismissed for their failure to meet the burden of proof. That ruling left the location of the boundary line undetermined. The McEntires assert on appeal that the boundary line issue was squarely raised by the pleadings and proof on the issues was submitted; therefore, say the McEntires, it became the duty of the chancellor to establish the boundary.

The Pleadings. The McEntires alleged record title to the west half of the involved forty-acre tract. Robinson, their neighbor on the east, was charged with encroaching on the McEntires' land by running a north-and-south fence some twenty feet west of the true line. They alleged the fence to have been built within the last few years. They asked the court to fix the boundary as determined by the county surveyor and to order Robinson's fence removed.

Curtis Robinson answered by claiming title to the disputed strip by adverse possession. He asserted that the fence line had been established with the consent and approval of the McEntires and pleaded estoppel. Robinson asked that plaintiffs' complaint 'be dismissed for want of equity and for any and all other proper relief.'

The Evidence. The McEntires produced two surveyors and six other persons as witnesses. Their testimony was directed to the survey line and their allegation that the fence was not erected by Robinson until 1962. The McEntires testified that the fence was erected without their knowledge or permission.

Curtis Robinson produced seven witnesses. Their testimony centered around these contentions: Robinson lived in a house on his property since 1944; the house was there as far back as 1909 and had since been enlarged north and south; the McEntire survey line ran through the center of the house; a survey was made in 1957 and that line ran some eight steps west of Robinson's house; Robinson built the fence in 1957; the shrubs on Robinson's side of the fence were first planted in 1944; in 1956 J. L. McEntire and Robinson worked out a line after a survey and the following year the fence was placed on that line; for many years before the fence was erected the parties cultivated up to that line.

The Chancellor's Findings. The formal recorded order contained this single finding: '1. That the plaintiffs' Complaint should be dismissed with prejudice.' That statement was followed by formal words of dismissal with prejudice. However, at the conclusion of the trial the chancellor pronounced orally his findings. They were recorded and styled 'Court's Ruling.' The evidence on both sides was reviewed and the conclusion reached that the testimony was 'as opposite as the poles.' The chancellor concluded with this statement: 'In view of the fact that the present survey divides the house in which the defendant has been living since 1944 and in view of the fact that all of his improvements have been made since he acquired this property and set out trees and one thing and another, I can't see anything other than that the plaintiff has failed to meet the burden of proof and therefore the complaint will be dismissed.'

The pleadings clearly placed before the court the respective theories of the adjoining owners with regard to a boundary line. Plaintiffs and defendant certainly understood the respective contentions. There were no objections to the pleadings. Proof was pointedly directed toward each allegation. In that situation it was incumbent on the trial court to fully adjudicate those issues pleaded and litigated.

In Mandel v. Peet, Simms & Co., 18 Ark. 236 (1856), the trial court sustained a demurrer to nine pleas in abatement and entered a final judgment. This court held the entry of the judgment to be in error because there remained an issue in the case not affected by the ruling on the demurrer. Hollis v. Moore, 25 Ark. 105 (1867), was a suit in trespass. The defendant made three separate pleas of defense. Judgment was entered for the plaintiff without defendant's pleas being resolved. For that error the case was reversed and remanded.

In the last century our own trial courts have evidently been careful to avoid the pitfalls reflected in Mandel and Hollis; otherwise we assume later citations would have been called to our attention. The rule in those cases is sound because it discourages piecemeal litigation. Particularly when a controversy as to possession of real property is in issue and can be concluded in one action, that should be done. Robinson was required by statute to plead his defenses. Ark.Stat.Ann. § 27--1121 (Repl.1962). Logically, those defenses should be resolved.

We agree with appellants' first point, namely, that 'the issue of the boundary line location was squarely raised by the complaint and answer,' and should have been resolved. By their second point, the McEntires ask us to hold that the evidence preponderates in their favor. This we cannot do, for the simple reason that the trial court did not resolve the issues of adverse possession and estoppel.

The cause is reversed and remanded with directions to the trial court to fix the boundary line with such certainty that it can be identified by reference to the decree.

FOGLEMAN, J., dissents.

DISSENTING OPINION

FOGLEMAN, Justice.

I respectuflly dissent. In the first place, the majority is requiring the court to grant appellants relief not sought by them in the trial court. In the second place, this court is saying that a court of equity must decide questions raised by a defendant regardless of whether he asks for affirmative relief in the lower court or on appeal. In these respects, the majority's action is novel and, I submit, improper.

Appellants filed a complaint claiming that appellee was guilty of repeated trespasses upon the lands of the former. They alleged that appellee had erected a fence enclosing a portion of their land. They sought to have appellee enjoined from removing stakes, boundary markers and monuments, and from trespassing on the lands in question. Their prayer as to the boundary was as follows:

'* * * (T)hat defendant be restrained and enjoined from trespassing or coming upon plaintiffs' property and that the boundary line should be established and fixed between the lands of plaintiffs and defendant at the point fixed by Mr. J. H. Shepard, the present County Surveyor of Jefferson County, Arkansas, and also at the makrer previously established by using the beginning point on marker established by Mr. Clayton Gould, former County Surveyor of Jefferson County, Arkansas.'

There was no prayer for general relief.

Appellee filed an answer questioning the jurisdiction of the court, contending that the action was one in ejectment. The answer also contained a general denial and pleaded adverse possession, laches and estoppel. His prayer was:

'* * * (T)hat plaintiffs' Complaint be dismissed for want of equity and for any and all other proper relief, including the dissolution of the Restraining Order issued herein.'

Thus, the court granted the exact relief sought by appellee. In doing so, I submit that it was supported by a preponderance of the evidence. Appellee did not cross-appeal.

Appellants filed a motion for new trial and an amendment to a motion for new trial. In neither did they ask the court to fix the true boundary. As a matter of fact, no party has at any time asked the court to determine the true boundary.

Just two months ago we denied an appellant relief from the trial court's dismissal of his action to quiet title. That court's dismissal was for want of equity because appellant there failed to meet the burden of proof. See Corn v. Arkansas Warehouse Corporation, 243 Ark. 130, 419 S.W.2d 316. The identical argument was there advanced; i.e., that the decree did not decide the issues between the parties. A further point of similarity is appellant's contention that it was incumbent upon the appellee-defendant to plead and prove whatever grounds for relief he might have. We said that the failure of the defendant to do this did not entitle plaintiff to relief in spite of his failure to meet his burden of proof. There, as here, the appellee only defended against the appellant's complaint but did not assert a counterclaim, did not seek any relief against the appellant, and did not appeal. If appellee here is satisfied with the disposition of the case below, I cannot see why we should not be.

In a case where there was a title dispute as between the heirs of a wife and the husband, the trial court accepted the view of the husband that he and his wife owned certain property as tenants in common and awarded one-half to each side. On appeal by the heirs, this court noted that the property was held in a tenancy by the entirety and that appellants had no claim of title. However, the decree was affirmed 'as appellee does not appeal, the presumption is that he does not wish to modify or set aside the decree.' Johnson v. Austin, 86 Ark. 446, 111 S.W. 455.

I agree that where there is no prayer for relief, a court should grant relief to a plaintiff where the only relief to which the can be entitled is at once apparent from the allegations of the complaint. Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S.W. 458. But where there is a specific prayer for relief and a general prayer for relief, and the evidence does...