Melvin D. Clark and Diana S. Clark v. Kentley Hall, Rhonda L. Hall, Larry D. Foster, Susan E. Foster, Dennis E. Albertin and Cindy L. Albertin

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

MELVIN D. CLARK and DIANA S. CLARK

APPELLANTS

v.

KENTLEY HALL, RHONDA L HALL, LARRY D. FOSTER, SUSAN E. FOSTER, DENNIS E. ALBERTIN and CINDY L. ALBERTIN

APPELLEES

CA03-206

NOVEMBER 5, 2003

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[E01-1349-4]

HONORABLE MARY ANN GUNN, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants challenge a trial court's determination of a property boundary line arguing that appellees, absent any evidence on original General Land Office monumentation, failed to prove by a preponderance of evidence that the disputed boundary line as platted by appellees' surveyor is more correct than that line as surveyed by appellants' surveyor. We affirm.

Appellants, Melvin and Diana Clark, own land next to appellees, who purchased land subdivided by Mr. Pardue. A trial was held to determine the location of the east boundary line of appellants' property and the west boundary of appellees' properties. A meandering fence erected to keep cattle from falling into a deep ravine was in place for years, but was acknowledged by all to not be related to the boundary line. However, Mr. Clark erected a new fence once he discovered Mr. Pardue was subdividing his land to mark the line he believed to be the boundary line between the properties. Mr. Pardue disputed the newly erected fence line as the boundary for the properties.

Testimony at trial turned upon the work of two surveyors, Mr. Reid and Mr. Luttrell. The trial judge found that appellees had proven by a preponderance of the evidence that the boundary line between the parties' property is the range line as located by Mr. Reid, that appellants' fence encroached upon appellees' property, and gave the appellants thirty days to remove the fence.

The location of a boundary is a question of fact, and we affirm unless the trial court's finding is clearly against a preponderance of the evidence. Killian v. Hill, 32 Ark. App. 25, 28, 795 S.W.2d 369, 371 (1990). Matters of credibility are for the trial court to determine. Id. A survey which is made from a starting point established by hearsay or pure guess has been held to be of little or no probative value. Stevens v. French, 227 Ark. 864, 867, 302 S.W.2d 286, 287 (1957). The established rule of property is that the original United States government survey is prima facie correct, and surveys must conform as nearly as possible with the original government survey. Dicus v. Allen, 2 Ark. App. 204, 209, 619 S.W.2d 306, 308 (1981). The guides to locating boundaries, in order of importance, are: (1) natural objects; (2) artificial objects; (3) adjacent boundaries; (4) courses; (5) distances; and (6) quantity. Id. at 209-10, 619 S.W.2d at 308. This rule, however, is flexible. Id. at 210, 619 S.W.2d at 308. Despite the fact that an original government survey is prima facie correct, the weight and effect of the original survey is a question of fact. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001).

The boundary line of the properties in this case is a range line originally laid out in the early 1830's by surveyors from the General Land Office (GLO). Appellants assert that when corners and corresponding lines are considered lost, the Bureau of Land Management (BLM) Manual of Surveying Instructions (1973) controls their restoration. They define a lost corner as a point of survey which cannot be determined beyond reasonable doubt, either from traces of the original marks or from acceptable evidence that bears upon the original position. Although appellants set forth the standards to be followed pursuant to the BLM Manual, and allege that appellees' surveyor failed to follow those procedures, they concede that their own survey by Mr. Luttrell also shows no attempt to locate and measure corners pursuant to those procedures. Despite their argument that BLM procedures should have been followed, they acknowledge that the judge listened to two area surveyors, neither of whom followed BLM procedures, in reestablishing the range line. They argue that while Mr. Luttrell may not have surveyed following the BLM procedures, he did strive to follow those who had gone before him and that his adherence to the old surveys and GLO notes rendered his survey more accurate than Mr. Reid's.

Both surveyors discussed surveying protocols and why they followed their respective procedures to identify the location of the boundary. In this case, the surveyors disagreed about the best way to establish the range line. Mr. Reid testified that he first looked for monumentation that would coincide with the old notes on the original survey. He found a stone approximately half a mile south of Mr. Pardue's property and ran up the line to another stone found about three-quarters of a mile north of this property. He used these stones to establish a straight line, which would be the range line. He stated that he did not know who placed the stones he used, but agreed that it was likely that the original monumentation of these corners, which would have been placed in the 1800s, had long since disappeared and been replaced by a county surveyor or landowner. From there, Mr. Reid surveyed the area identifying and checking other monumentation and found this range line to be consistent with other properties in the area. He considered the establishment of the range line as the most important line and that it must be established before any section line. He relied upon what he found in the field and stated that it fit mathematically. He was confident that the range line marked on the survey was correct. He also testified that there was no chance that the range line identified by the Luttrell survey would have tied into the monuments he used.

Mr. Luttrell testified that he yielded to what previous surveyors had cited, some of which he conducted in the 1960s. Appellants' argue that Mr. Luttrell was able to trace his work using transit and tape back to the 1930's Washington County surveyor whose notes made seventy-three (73) years ago reflected that he had found corners of the property that were not ascertainable today. Although Mr. Luttrell did not reference the same monumentation that Mr. Reid used for this particular survey, he did testify that he had used those same markers for surveys he had performed for other parties and properties. He did not dispute that the reference markers that Mr. Reid used marked the sites of original government monuments used by the original government surveyors. He also confirmed that the GLO distances used by him to establish lines on appellants' property were just a guide.

We cannot say that the trial court's finding that Mr. Reid's survey properly identified the location of the boundary is clearly against a preponderance of the evidence. Mr. Reid explained the procedurehe followed and identified monuments from which he established the range line. Mr. Luttrell had used those same monuments for surveys of other properties, although not the survey for appellants. Those monuments may well have been restored periodically by county agents or the landowners; however, both surveyors had relied upon the those markers in various surveys of the area. Therefore, we find no error and affirm.

Vaught and Crabtree, JJ., agree.