Myers v. Yingling

• Court: Arkansas Supreme Court
• Writing for the Court: Tom Glaze
• Citation: Myers v. Yingling, 279 S.W.3d 83, 372 Ark. 523 (Ark. 2008)
• Decision Date: 06 March 2008
• Docket Number: No. 07-790.,07-790.
• Parties: Frank MYERS, Appellant, v. David YINGLING and Venice Yingling, Appellees.

279 S.W.3d 83

Frank MYERS, Appellant, v. David YINGLING and Venice Yingling, Appellees.

No. 07-790.

Supreme Court of Arkansas.

March 6, 2008.

Rehearing Denied April 10, 2008.

Robert Hudgins, Searcy, for appellant.

Murphy, Thompson, Arnold, Skinner & Castleberry, by: Blair Arnold and Casey Castleberry, Batesville, for appellees.

TOM GLAZE, Justice.

We first considered this case last year in order to decide a jurisdictional issue. See Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007) (Myers I). Pursuant to Ark.Sup.Ct. R. 1-12(a)(7), the case is now back before us for a consideration of the merits of the appeal.

On May 6, 2004, appellees David and Venice Yingling filed suit against appellant Frank Myers, alleging that Myers had blocked the only means of egress onto the Yinglings' property. The Yinglings alleged that their property was separated from Myers's property by a roadway, "Yingling Lane," and that "Overstreet Lane" was a privately maintained roadway used by the Yinglings for access to their land. They contended that Myers had erected a gate across Overstreet Lane, denying them access to their property. The Yinglings sought a declaration that Overstreet Lane was a private roadway over which they had acquired a prescriptive easement. In an amended complaint, the Yinglings also averred that they had acquired title to the property by adverse possession.

The White County Circuit Court entered an order on October 10, 2005, finding that there was insufficient proof of adverse possession and that the issue was whether there had been acquiescence by the parties and their predecessors in title. After discussing the evidence, the court concluded that, through the years, the parties and their predecessors in title had agreed that a fence along the west side of Overstreet Lane was the boundary line of the property; thus, even though the survey showed the actual property line to exist east of the road at issue, acquiescence had overcome the survey. However, the court noted that the Yinglings had not provided a legal description of the property and gave them forty-five days to provide the court with that description.

Myers filed a notice of appeal from the trial court's October 10 order on November 7, 2005, and he lodged the record with this court on February 2, 2006. On February 16, 2006, the trial court entered a second order in which it reiterated its conclusion that the Yinglings had acquired title to the property by acquiescence; however, this order also incorporated the legal description of the property. Myers filed a second notice of appeal from this order on March 6, 2006. This court dismissed Myers's appeal without prejudice, holding that, once Myers filed his notice of appeal and lodged the record with this court, the circuit court lost jurisdiction to act further in the matter, and the court's February 16, 2006, order was void. See Myers I, 369 Ark. at 89-90, 251 S.W.3d at 289-90.

Following Myers I, the circuit court held a hearing on May 15, 2007. At that time, the trial court entered an order in which it again found that there was insufficient proof of adverse possession, but that there had been sufficient proof to establish that "the neighbors and predecessors in title of the parties used and agreed" upon a boundary line, such that the boundary line had been established by acquiescence. Accordingly, the court concluded that the Yinglings were the rightful owners of the property described in the order. Myers filed a timely notice of appeal the next day.

We first address a procedural argument, which Myers lists as his second point on appeal. As mentioned above, in the trial court's October 10, 2005, order, the court pointed out that the Yinglings had not introduced a description of the area being claimed and gave them forty-five days in which to submit a description. Despite the trial court's granting of time to submit the legal description, Myers filed his notice of appeal from that order. Myers's first appeal of this case was dismissed because the October 10, 2005, order, lacking a legal description of the property, was not a final, appealable order. See Myers I, 369 Ark. at 89, 251 S.W.3d at 289-90 (citing Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993)). In Myers I, this court stated that it was apparent that the circuit court "contemplated further action" in its October 10 order, but Myers's actions in filing his notice of appeal and lodging the record deprived the circuit court of jurisdiction to act further in the matter. Id. at 89-90, 251 S.W.3d at 289-90. We then determined that the trial court's February 16, 2006, order (which incorporated the legal property description) was void, and Myers's appeal from that order would also have to be dismissed. Id. at 90, 251 S.W.3d at 289-90.

After we dismissed the appeal, the parties again appeared before the circuit court, which held a hearing on May 15, 2007. At that hearing, the Yinglings introduced a survey and legal description of the property through George Hamman, a surveyor. In this appeal, Myers argues that the trial court should not have allowed the Yinglings to introduce the survey after they had already rested their case. We reject Myers's argument.

At the time Myers filed his first notice of appeal, he knew that the trial court had specifically directed the Yinglings to submit a legal description of the property within forty-five days. By filing his notice of appeal and lodging the record, Myers himself truncated the proceedings in the lower court. Regardless of whether it was a mistake on counsel's part or a calculated move intended to deprive the circuit court of jurisdiction, it was nonetheless his decision to take an appeal from a nonappealable order. Myers should not now be heard to complain of error on the trial court's part and benefit from his own improper or untimely conduct.

This court has previously made it clear that, in boundary-line disputes, a legal description is necessary before any order rendered by the trial court is final and appealable. In Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), this court dismissed an appeal from an order finding that the Nature Conservancy had acquired title to a parcel of land by adverse possession. The trial court's order in that case was captioned "Final Order" and purported to quiet title in the Nature Conservancy, but it lacked a legal description of the property. This court held that the permanent record in a boundary-line decision should describe the line with sufficient specificity that it may be identified solely by reference to the order. Otherwise, the court wrote, "leaving those lines to be established by a future survey may likely result in additional disputes, litigation, and appeals." Petrus, 330 Ark. at 726, 957 S.W.2d at 690 (noting that the requirement that a court order fix and describe the boundary lines in a dispute between landowners discourages piecemeal litigation).

Here, while it is true that the trial court's October 10, 2005, order did not contain a legal description, neither did it purport to be a final order for the parties to appeal, as it was simply captioned "Findings of Fact and Law." By directing the Yinglings to submit a legal description of the property within forty-five days, the trial court clearly contemplated further action; however, Myers thwarted any such action by filing his inappropriate notice of appeal. Accordingly, we reject his argument that the trial court erred in allowing the Yinglings to submit the legal description of the property at a later date.

We now turn to the argument that Myers raises as his first issue on appeal, wherein he argues that the trial court erred in finding that the Yinglings had proven acquiescence by a preponderance of the evidence. Because the location of a boundary is a disputed question of fact, this court will affirm unless the trial court's finding is against the preponderance of the evidence. See Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969); Clark v. Casebier, 92 Ark.App. 472, 215 S.W.3d 684 (2005).

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. Rabjohn, 252 Ark. at 570, 480 S.W.2d at 141; Palmer v. Nelson, 235 Ark. 702, 361 S.W.2d 641 (1962); Clark, 92 Ark. App. at 476, 215 S.W.3d at 686. 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, and in such circumstances, the adjoining owners and their grantees are precluded from claiming that the boundary so recognized and acquiesced in is not the true one, although it may not be. Rabjohn, 252 Ark. at 570-71, 480 S.W.2d at 141; see also Clark, 92 Ark.App. at 476, 215 S.W.3d at 686.

Moreover, a boundary line by acquiescence may exist without the necessity of a prior dispute. Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991); Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649 (1905); Clark v. Casebier, supra. Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965); Clark, supra; Walker v. Walker, 8 Ark.App. 297, 651 S.W.2d 116 (1983).

The property in dispute in this case is in the Northwest Quarter of the Southeast Quarter of Section Five, Township Nine North, Range Six West in White County. Specifically, the question presented to the trial court was the placement or location of the western boundary of the Yinglings' property and the eastern boundary of Myers's property. In its findings of fact and conclusions of law, the trial court found that there was sufficient proof that the parties and their predecessors in title had acquiesced to the fence along the west side of...