Nathaniel Brown and Vanteen Brown v. Fred Jones et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CA 01-569

January 9, 2002

NATHANIEL BROWN and VANTEEN

BROWN, HUSBAND AND WIFE APPEAL FROM FAULKNER COUNTY

APPELLANTS CHANCERY COURT, THIRD DIVISION

VS.

HONORABLE CHARLES E. CLAWSON,

FRED JONES and CARRIE JONES, CHANCERY JUDGE

HUSBAND and WIFE; and CHARLES

ALFORD and JENNIFER ALFORD,

HUSBAND and WIFE

APPELLEES AFFIRMED

Appellants, Nathaniel and Vanteen Brown, and the appellees, Fred and Carrie Jones, have been adjoining landowners and neighbors in rural Faulkner County since sometime in the 1960's.

Sometime during 1998 a dispute arose between the parties as to the exact location of the boundary between them. Fred Jones had the property surveyed by a registered land surveyor, Tim Tyler. Jones then constructed a fence on the boundary line shown by the survey. Nathan Brown then brought this action to quiet title based on a boundary by acquiescence or on adverse possession. The trial court held that the allegations of the complaint had not beenproven by a preponderance of the evidence and entered judgment for the appellees.

Appellants raise two issues on appeal. We find no reversible error and affirm.

Appellants contend that the trial court erred in holding that they did not prove a boundary by acquiescence by a preponderance of the evidence. Relying on Tull v. Ashcraft, 231 Ark. 928, 333 S.W.2d 490 (1960), we cannot say that the trial court's conclusion that appellants' proof was insufficient was clearly erroneous. Appellants' case is based on the existence of an "old fence" serving as the boundary line between the parties which was in alignment with an iron pipe which evidently marked an old section corner. Tyler "reestablished" the section corner during the course of his survey.

Mr. Brown did testify that there was an old dilapidated fence between the parties when he bought his property. Tyler testified that he saw no such fence when he surveyed the property. There is no suggestion in the evidence as to how long this "old fence" stood between the parties. In Mr. Brown's testimony he related his use of the property to either an iron pin or to a fence post, not to any line. The evidence in the case at bar does not compare favorably to that in Tull v. Ashcraft where it was clear that a fence between the parties remained in place for about thirty-fiveyears. Here, the trial court found the evidence insufficient and we cannot say it was wrong.

Appellants also argue that the trial court erred in failing to grant injunctive relief because Tyler's survey was not properly performed. The argument is based on the contention that Tyler erred in "reestablishing" the section corner.

Certainly there are good reasons to question the accuracy of the survey procured by Mr. Jones. But, if appellants are to obtain relief they must do so based on the strength of their own title, rather than the weakness of their adversaries' title. Coulter v. O'Kelly, 226 Ark. 836, 295 S.W.2d 753 (1956); Sanders v. Boone, 154 Ark. 237, 242 S.W. 66 (1922). A party in a quiet title action will gain nothing in proving a defect in the title of his adversary. Bryant v. Chicago Mill & Lumber Co., 216 F.2d 727 (8th Cir. 1954).

Affirmed.

Pittman and Vaught, JJ., agree.