Soterra, L.L.C. a/k/a Soterra, Inc. v. Stephen Albert and Joseph Albert, Jr.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

SOTERRA, L.L.C.

APPELLANT

V.

STEPHEN ALBERT and JOSEPH ALBERT, JR.

APPELLEES

CA00-00776

FEBRUARY 27, 2002

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

[NO. QT99-5379]

HONORABLE VANN SMITH, CHANCELLOR

AFFIRMED AS MODIFIED

This case involves a boundary-line dispute. The appellant, Soterra, L.L.C., a/k/a Soterra, Inc., appeals a second time from a decision by the Pulaski County Chancery Court which quieted title to the property in question in appellees, Stephen Albert and Joseph Albert, Jr. In CA00-776, April 11, 2001, this court issued a remand, directing the chancellor to amend the decree and to provide a sufficient legal description to the subject tract of land. In its original brief, appellant had four points on appeal, which are reiterated in its amended brief. First, appellant argues that the trial court erred and abused its discretion in identification of the property purchased by appellees. Second, appellant argues that the trial court erred in failing to find that appellant proved adverse possession while at the same time finding that appellees did prove adverse possession. Third, appellant argues that the trial court erred and abused its discretion in making a finding that was contrary to the preponderance of the evidence presented by appellant. Fourth, appellant argues that the trial court erred and abused

its discretion in misapplying the law cited in its order. Appellant argues to us in its brief after remand that "the [t]rial [c]ourt attempted to pick out an area that wasencompassed in said description, but it does not conform to the description in the Parish survey" and that "it is difficult to understand, based upon the testimony, how the [t]rial [c]ourt can write a description showing a strip of land being 44 feet in one place and 45.57 feet in another place, and at the same time throughout the Order referring to a 30 foot strip of land being in dispute." We affirm as modified.

Appellant has owned property in Pulaski County since 1946. Appellant marked the boundaries of its property by painting a line on the trees along its property line. On March 22, 1989, appellees purchased property adjoining appellant's. Highway 300 runs along a portion of the western border of appellees' property. The property in dispute in this case lies on the west side of appellees' property and is described in the parties' pleadings as a thirty-foot strip, separating it from Highway 300.

Appellees claim that when they purchased the property, it was their understanding that the property extended all the way to Highway 300. Sometime thereafter, appellees discovered that appellant claimed ownership of the thirty-foot strip. Appellees approached appellant about acquiring an easement, but no agreement was reached. Appellees hired Steve Parish to survey the property in 1992, and the resulting survey provided that appellees' property line fell in the middle of Highway 300, including the disputed thirty-foot strip. Appellant disagreed with the survey, asserting that it changed the description of the property from that stated in the deeds and that the new description gave appellees 1.25 more acres than was included in appellees' deed.

On October 13, 1999, appellees filed an action to quiet title in the property. Originally, the chancery court issued an order on March 8, 2000, finding that the disputed land was wild and unimproved property; that Mr. Parish followed all General Land Office rules and regulations in surveying the property; and that the disputed property belonged to appellees. The chancery courtalso adopted the findings of the Parish survey and found that appellant failed to prove that it was entitled to the land through adverse possession. On first appeal, in an unpublished opinion, we remanded to the chancellor to provide a sufficient legal description of the subject property for purposes of finality. Soterra, L.L.C. v. Albert, CA 00-776 (Ark. App. April 11, 2001). The current appeal concerns the chancellor's order on remand.

We review chancery cases de novo on appeal, and the chancellor's findings of fact will not be reversed unless they are clearly erroneous, i.e. clearly against the preponderance of the evidence. Carden v. McDonald, 69 Ark. App. 257, 12 S.W.3d 643 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). The location of a boundary line is a question of fact. Id. We give due regard to the chancellor's superior opportunity to assess the credibility of the witnesses. Carden, supra.

Following remand, the chancellor attempted to revise the legal description of the disputed portion of land with such specificity that the disputed property could be identified solely by reference to the decree, thus, giving the order finality. Since finality is an issue of jurisdiction, we have the duty to raise it on our own motion, and to be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. See Barnes v. Newton, 69 Ark. App. 115, 10 S.W.3d 472 (2000). In a long line of cases, our supreme court has held that a chancery court's decree must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. Petrus v. The Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). Otherwise, leaving those lines to be established by a future survey may likely result in additional disputes, litigation, and appeals. Id. Thus, the public policy behind requiring a chancery decree tofix and describe the boundary lines in a dispute between landowners is to discourage piecemeal litigation. Id. We find that a problem still remains with the legal description of the disputed portion of land after remand.

In the current appeal, appellant argues that in the chancellor's order on remand, the property description does not conform to the description in the Parish survey and that the chancellor erred in referring to the disputed tract as a thirty-foot strip, when Parish's testimony described the strip as being forty-four feet in one place and 45.57 feet in another place. However, appellant fails to provide a description it believes accurately describes the disputed tract of land, merely pointing out the insufficiencies. A description of the actual disputed portion of land is difficult to determine and a second remand for further description may present further complications. Therefore, in the interest of judicial economy, we affirm as modified, quieting title to the entire sixty acres including the originally disputed area. The description according to the Parish survey is as follows:

The Northwest Quarter of the Northeast Quarter and the North One Half of the Southwest Quarter of the Northeast Quarter of Section Twelve, Township Three North, Range Fifteen West of the Fifth Principal Meridian, (NW 1/4-NE 1/4 & the N1/2-SW1/4-NE1/4, Sec. 12, T.3 N., R.15 W., 5th P.M.), Pulaski County, Arkansas, being more particularly described as follows:

BEGINNING at a stone found at the North Quarter Corner of said Section Twelve, Township Three North, Range Fifteen West of the Fifth Principal Meridian;

THENCE: S 87_ 39' 40" E, 1346.72 feet along the North line of said Section Twelve to a 5/8" rebar set at the Northeast Corner of the Northwest Quarter of the Northeast Quarter of said Section Twelve;

THENCE: S 00_ 52' 19" W, 1322.75 feet along the East line of the Northwest Quarter of the Northeast Quarter of said Section Twelve to a set 5/8" rebar set at the Southeast Corner of said Quarter-Quarter Section;

THENCE: S 00_ 52' 19" W, 661.38 feet along the East line of the Southwest Quarter of the Northeast Quarter of said Section Twelve to a set 5/8" rebar at the Southeast Corner of the North One Half of the Southwest Quarter of the Northeast Quarter of said Section Twelve;

THENCE: N 87_ 45' 36" W, 1342.49 feet along the South line of said North One Half of the Quarter-Quarter Section to a cotton spindle set at the Southwest corner thereof;

THENCE: N 00_ 45' 06" E, 662.19 feet along the West line of said North Half of the Quarter-Quarter Section to a 5/8" rebar set at the Northwest Corner of said Southwest Quarter of the Northeast Quarter of said Section Twelve;

THENCE: N 00_ 45' 06" E, 1324.38 feet along the West line of the Northwest Quarter of the Northeast Quarter of said Section Twelve to the POINT OF BEGINNING.

Together with and subject to covenants, easements and restrictions of record. Said property contains 61.26 acres, more or less.

We now proceed to address appellant's arguments on appeal before remand. Appellant's first argument was essentially the same as its argument after remand, that the chancellor abused his discretion in changing the description of the property purchased by appellees. Therefore, we defer to our previous discussion on that point.

Also, in its first point from the original appeal, appellant contends that the chancellor's order gives appellees more land than is in their deed. However, in Bryant v. Chicago Mill & Lumber Co., 216 F.2d 727 (8th Cir. 1954), it was held that a party in a quiet title action will gain nothing by proving a defect in the title of his adversary. Thus, appellant's argument is without merit without proof of adverse possession or some other means of acquiring legal title to the disputed tract of land.

For its second point in the original appeal, appellant argues that the trial court erred in failing to find that appellant proved adverse possession. Whether possession is adverse to the true owner is a question of fact. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). In order to establish title by adverse possession, appellant has the burden of proving that it was in possession continuously for more than seven years and its possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold adversely against the true owner. Id. Moreover, in 1995, theGeneral Assembly added requirements pertaining to color of title and payment of taxes on the subject property or contiguous property, in addition to all other requirements for establishing adverse possession. See Ark. Code Ann. § 18-11-106 (b) (Supp. 2001).

Here, appellant merely claims that it had established the boundary line by painting the trees; that appellees paid appellant when appellees cut some trees on the disputed property; and that appellees had requested permission to cross the disputed property. There is no further evidence of the elements of adverse possession. Under these facts, we hold that the chancellor was correct in finding that appellant failed to establish the elements of adverse possession.

Appellant's third argument on appeal, that the trial court erred and abused its discretion in making a finding that was contrary to the preponderance of the evidence presented by appellant, is essentially the same argument appellant made in its second point on appeal. Thus, we defer to the discussion of that point as a sufficient explanation of appellant's third argument.

For appellant's fourth argument on appeal, it asserts that the trial court erred and abused its discretion in misapplying the law cited in its order. Appellant contends that in the chancellor's original order, he incorrectly cited Scott v. Mills, 49 Ark. 266, 4 S.W. 908 (1887) and Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). We disagree. Scott was cited for its holding that there was sufficient evidence to support adverse possession where a party had, under color of title, deadened timber on a parcel of land and paid taxes on the land for seven years, stating that in order to establish adverse possession one must leave it so "that the condition and appearance of the premises themselves show to the world that there is still a person in actual control and exercise of dominion."49 Ark. at 274, 4 S.W. at 912. Moreover, Belcher was cited for its holding that in order to establish title by adverse possession, a claimant has the burden of showing that he has been in possession of the property continuously for more than seven years and that his possession wasvisible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Appellant claims that neither case presents either the facts or the issues of law that were being tried in this case and an attempt to apply them to the instant case is error. The two cases were cited for two general propositions, which were applicable to this case. Thus, we hold the chancellor did not err in this respect.

In conclusion, we hold that the chancellor was correct in finding that appellant failed to prove adverse possession in the disputed tract of land. We affirm as modified, quieting title to the entire sixty acres of land to appellees.

Robbins and Neal, JJ., agree.