Fields v. Griffen

Marilyn Ladell FIELDS v. William Carroll
GRIFFEN

CA 97-82                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered January 28, 1998


1.   Property -- valid boundary-line agreement -- factors
     necessary. -- For there to be a valid boundary-line agreement,
     certain factors must be present: (1) there must be an
     uncertainty or dispute about the boundary line; (2) the
     agreement must be between the adjoining landowners; (3) the
     line fixed by the agreement must be definite and certain; and
     (4) there must be possession following the agreement.

2.   Property -- boundary-line agreements -- when binding -- when
     oral agreement concerning line permitted. -- Only where the
     true boundary line is unknown or is difficult to ascertain,
     and the parties establish the line to settle a disputed and
     vexatious question concerning the boundary line between them,
     is the agreement binding; when numerous conflicting surveys
     give rise to uncertainty regarding the division line and
     create dispute and controversy, adjoining landowners can
     orally agree upon a division line.   

3.   Property -- no dispute existed concerning boundary line --
     agreement regarding line not binding. -- Where there was no
     dispute between the parties concerning the boundary line until
     after the death of appellant's husband, nor was the purported
     agreement between appellant's husband and appellee made to
     settle a dispute or uncertainty because the uncertainty
     created by the overlapping legal descriptions in their
     respective deeds had not been discovered, the appellate court
     held that there was not an agreed boundary. 

4.   Quieting title -- issue not addressed at trial -- case
     reversed and remanded for chancellor to address remaining
     issues. -- When the chancellor found that a boundary line was
     established by agreement, he declined to address the other
     issues presented by both parties at trial, including adverse
     possession and acquiescence; because the appellate court
     reversed on the finding that there was an agreed boundary, the
     case was remanded for the chancellor to address the parties'
     other issues.


     Appeal from Pope Chancery Court; Richard E. Gardner, Jr.,
Chancellor; reversed and remanded.
     Dunham & Faught, P.A., by:  James Dunham, for appellant.
     David L. Eddy, for appellee.


     John E. Jennings, Judge.
     This case involves a boundary-line dispute.  Marilyn Ladell
Fields appeals from an order of the Pope County Chancery Court
which found a boundary line by agreement between her property and
that of appellee William Carroll Griffen, the adjoining landowner
to the south.  She argues that the trial court erred in finding a
boundary-line agreement.  We agree.
     Although the facts of this case are rather complicated, the
issue essentially involves adjoining landowners who were unaware
that their respective warranty deeds contained legal descriptions
that overlapped as to a strip roughly eighty feet wide along the
boundary.  Appellee acquired the south tract in 1987.  He purchased
the land from Thompson Industries.  He testified that at the time
of purchase he walked the property with Harry Scott, who runs
Thompson Industries, and was shown a steel stake near the Highway 7
frontage.  A fence ran from there across the property to a round
pipe, and appellee was told that the fence and the pipe and stake
marked the boundary.  The land was hilly and had big oak trees. 
The lower, southernmost part of his tract had undergone excavation. 
Appellee began more excavation in April 1987.  Appellee had trees
logged off the uphill, northern part of his tract, instructing the
loggers to "cut trees to the north line, and by that I mean where
the fence row was and in between the stake on the front and the
back."     
     In 1989, appellant and her husband, Buddy Fields, now
deceased, acquired the adjoining north tract.  Appellee and Buddy
Fields were friends, and appellee had suggested to Buddy that he
purchase the north tract.  Appellee and Buddy discussed their
wishes to develop their respective tracts from time to time.  In
December 1992 Buddy Fields contacted his friend, appellee, to tell
him that he had made arrangements to excavate and sell dirt from
the north tract and to see if appellee wished to do the same on the
south.  The two men met on the property along with the excavators. 
Buddy Fields handled the transaction, and indicated where the
property line was to the excavators.  There were remnants of an old
fence.  A line was strung from an existing pipe in the ground
across the property to a stake, and the excavators used this line
as a reference for the removal of dirt from both tracts.  Appellee
testified that there was no confusion or dispute regarding the
boundary line until after Buddy's death in January 1995, when
appellant had a survey done and the overlapping eighty-foot strip
along the boundary was discovered.  Appellant erected a fence on
the southern edge of the overlap, and appellee filed suit to quiet
title to the disputed strip.  The chancellor found that "there was
an agreed boundary between Buddy Fields and [appellee]."  
     In order for there to be a valid boundary-line agreement,
certain factors must be present: (1) there must be an uncertainty
or dispute about the boundary line; (2) the agreement must be
between the adjoining landowners; (3) the line fixed by the
agreement must be definite and certain; and (4) there must be
possession following the agreement.  Jones v. Seward, 265 Ark. 225,
578 S.W.2d 16 (1979); Bryson v. Dillon, 244 Ark. 726, 427 S.W.2d 3
(1968).  With regard to the first element, all the evidence in the
case at bar indicates that there was no dispute between the parties
as to the boundary line until after the death of Buddy Fields. 
While the overlapping deeds might have created uncertainty, the
parties were not aware of any uncertainty nor was there any dispute
at the time of the purported agreement between Buddy Fields and
appellee.  It has been held that only where the true line is
unknown, or is difficult of ascertainment, and the parties
establish the line to settle a disputed and vexatious question as
to the boundary line between them, is the agreement binding. 
Randleman v. Taylor, 94 Ark. 511, 127 S.W. 723 (1910).  When
numerous conflicting surveys gave rise to uncertainty as to the
division line and created dispute and controversy, it was held that
adjoining landowners could orally agree upon a division line. 
Furqueron v. Jones, 186 Ark. 155, 52 S.W.2d 962 (1932).  In the
case at bar the purported agreement between Buddy Fields and
appellee was not made to settle any dispute or uncertainty; the
uncertainty created by the overlapping legal descriptions in their
respective deeds had not been discovered.  
     Appellant also argues that the trial court erred in not
quieting title in her favor to the disputed strip.  When the
chancellor found that a boundary line was established by agreement,
he declined to address the other issues presented by both parties
at trial, including adverse possession and acquiescence.  Because
we reverse on the finding that there was an agreed boundary, we
remand for the chancellor to address the parties' other issues.
     Reversed and remanded.
     Arey and Stroud, JJ., agree.