Kirkland v. Sandlin
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Appellant Reagen Kirkland appealed the circuit court’s order in favor of Appellees Jay and Allison Sandlin (The Sandlins). The Sandlins owned a residential lot adjacent to Mr. Kirkland’s. The Sandlins had notified the original owners of Mr. Kirkland’s lot that they intended to build a fence between the two lots, but their boundary differed from that which was on the recorded plat of the subdivision. The Sandlins attempted to purchase the strip of land outside the official boundary, but they could not reach an agreement with their neighbors. When the neighbors sold their lot to Mr. Kirkland, they advised him that the Sandlins’ fence encroached on his property line, and that he could sell that portion, or ask the Sandlins to move their fence. Mr. Kirkland asked the Sandlins to move the fence, and the Sandlins refused. Mr. Kirkland filed a suit for ejectment. The circuit court found that the Sandlins had entered into a valid boundary agreement with the original owners of Mr. Kirkland’s lot, and he took possession of the lot subject to that agreement. On appeal to the Supreme Court, Mr. Kirkland argued that he could rescind the agreement as a successive owner. The Court found a valid agreement existed between the Sandlins and the original owners of Mr. Kirkland’s lot. The Court affirmed the lower court’s decision.
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Cite as 2011 Ark. 209
SUPREME COURT OF ARKANSAS
No.
10-1059
Opinion Delivered May 12, 2011
REAGEN CRAIG KIRKLAND,
APPELLANT,
VS.
JAY SCOTT SANDLIN AND ALLISON
C. SANDLIN,
APPELLEES,
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CIV2008-4144-4,
HON. MARY ANN GUNN, JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Reagen Craig Kirkland appeals from the circuit court’s order finding a
boundary by agreement with respect to property between Kirkland’s home and the home of
appellees, J. Scott Sandlin and Allison C. Sandlin, husband and wife. Kirkland argues on
appeal that the circuit court erred in (1) failing to find that the agreement as to the boundary
line was the product of an unconscious mutual mistake, which was corrected by Kirkland; and
(2) failing to find that Kirkland was entitled to possession of the disputed area and that the
Sandlins should have been ejected from that area. We find no error and affirm the circuit
court’s order.
The pertinent facts are these. Kirkland owns Lot 29 in Savanna Estates, a subdivision
of residential lots in Fayetteville, Arkansas. The Sandlins own the lot on the left side of
Kirkland, Lot 28. The Sandlins purchased Lot 28 on June 30, 2000, and began constructing
Cite as 2011 Ark. 209
a residence on the lot. During the construction of their residence, the Sandlins notified the
original owners of Lot 29, the Fullbrights, that they intended to construct a fence along the
common boundary between Lot 28 and Lot 29, but were uncertain as to the location of the
boundary line. The Sandlins and the Fullbrights then agreed to a location for the boundary
line (hereinafter “the Sandlin/Fullbright boundary line”), and the Sandlins constructed a fence
at that location. It was stipulated that the Sandlin/Fullbright boundary line was not the actual
boundary line as recorded on the plat of Savanna Estates filed with the circuit clerk and exofficio recorder of Washington County, Arkansas. Subsequent to the completion of the fence,
the Sandlins and the Fullbrights each landscaped on their respective sides along the
Sandlin/Fullbright boundary line with bushes, shrubs, plants, and grass. The grass planted on
Lot 28 was a type of fescue, and the grass planted on Lot 29 was a type of bermuda.
The Fullbrights sold Lot 29 on October 31, 2003, to the Salters. It was during this
transaction that the boundary-line issue first arose. Surveys that had been performed prior to
the sale showed a discrepancy between the Sandlin/Fullbright boundary line and the recorded
boundary line. Specifically, the Sandlins’ brick and wrought iron fence was shown to extend
beyond the boundary line and into the rear corner of Lot 29. The Fullbrights subsequently
discussed the sale of Lot 29 to the Salters with the Sandlins and informed the Sandlins that the
survey had shown a variance between the Sandlin/Fullbright boundary line and the recorded
boundary line.
Between the date that the Salters signed an offer and acceptance with the Fullbrights
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and the date of the actual closing, a meeting was held at the Sandlins’. The Sandlins offered
to purchase the disputed area from the Salters for $10,000. Their attorney drafted a contract
for the sale and purchase of the disputed area, and the Sandlins signed it. The Sandlins
delivered the signed contract to the Salters for their signature, but the Salters never signed it
and subsequently declined to sell the disputed area. After the Salters closed on the sale with
the Fullbrights, a conversation occurred between Mr. Salter and Mr. Sandlin, wherein Mr.
Salter stated that the two could “work it out later.” However, the matter was evidently
dropped.
Approximately five years later, in September, 2008, the Salters decided to sell Lot 29
and their residence thereon. On September 12, 2008, the Salters entered into a real estate
contract with Kirkland for the purchase of Lot 29. Before the date of closing, Mr. Salter
conversed with Kirkland regarding the boundary line. He informed Kirkland that the Sandlins
had a portion of their fence on Lot 29 according to the recorded boundary line and that, at
one time, the Sandlins had offered to purchase the area for $10,000. Mr. Salter advised
Kirkland that he could either ask the Sandlins to move the fence, or make them purchase it.
However, the Sandlins were not involved in these discussions. Kirkland closed on the
purchase of Lot 29 on September 19, 2008; however, he never discussed the boundary-line
issue with the Sandlins prior to closing. After the closing, Kirkland received a general warranty
deed from the Salters and the property description simply read Lot 29 of Savanna Estates per
plat.
On October 22, 2008, Kirkland delivered a letter to the Sandlins demanding that the
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Sandlins remove the fence; however, the Sandlins refused to do so. On November 5, 2008,
Kirkland filed a complaint for ejectment against the Sandlins.
The case was submitted to the circuit court on briefs and stipulated facts, as well as an
in-person visit to the disputed property. The circuit court found that a valid boundary by
agreement was entered into by and between the Sandlins and the Fullbrights and that Kirkland
took possession of Lot 29 subject to that agreement. Kirkland now appeals.
Kirkland argues that the Sandlin/Fullbright boundary line was the product of an
unconscious mutual mistake and, therefore, the agreement could be rescinded and corrected
later by himself as the successive owner. 1 The Sandlins argue that the circuit court correctly
found that a valid oral boundary-line agreement existed in this case.
For bench trials, the standard of review on appeal is not whether there is substantial
evidence to support the finding of the court, but whether the judge’s findings were clearly
erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P. 52(a)
(2010); City of Rockport v. City of Malvern, 2010 Ark. 449, ___ S.W.3d ___. A finding is
clearly erroneous when, although there is evidence to support it, the reviewing court on the
entire evidence is left with a firm conviction that an error has been committed. See City of
1
While Kirkland relies on both Randleman v. Taylor, 94 Ark. 511, 127 S.W. 723 (1910)
and Short v. Mauldin, 227 Ark. 96, 296 S.W.2d 197 (1956) to support his argument, the fourprong test discussed in this opinion has since been adopted. Regardless, even were we to
analyze the facts of the instant case under Randleman and Short, we would reach the same
conclusion. This is not a case in which there was an unconscious mutual mistake where the
parties agreed upon a boundary line believing it to be the true, recorded line. Rather, the
parties were unsure of, and did not ascertain, the recorded line and, instead, mutually agreed
to establish the line.
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Rockport, supra. Facts in dispute and determinations of credibility are solely within the province
of the fact-finder. See 2010 Ark. 449, ___ S.W.3d ___.
For a valid oral boundary-line agreement to exist, four factors must be present: (1)
there must be uncertainty or dispute about the boundary line; (2) the agreement must be
between the adjoining landowners; (3) the line fixed must be definite and certain; and (4)
there must be possession following the agreement. See Nunley v. Orsburn, 312 Ark. 147, 847
S.W.2d 702 (1993). The joint stipulation of facts submitted to the circuit court by the parties
clearly established that each of the four factors were present in the instant case.
The stipulated facts reveal that the Sandlins and the Fullbrights mutually agreed on a
boundary line along which the Sandlins could build their fence after “the Sandlins
communicated to the Fullbrights that they were uncertain as to the location of the boundary
line.” Clearly, the Sandlins and the Fullbrights were adjoining landowners as it is also
stipulated that they shared a common, adjoining boundary. After the Sandlins and the
Fullbrights fixed the line, that line became definite and certain when the Sandlins built their
brick and wrought iron fence at the agreed location. Furthermore, it is stipulated that
subsequent to the completion of the fence, the Sandlins and the Fullbrights each landscaped
on their respective sides along the Sandlin/Fullbright boundary line with bushes, shrubs,
plants, and different types of grass. The landscaping completed on either side not only
illustrates that the line was definite and certain, but also that the Sandlins and the Fullbrights
each took possession on their respective sides up and to the agreed upon line where the fence
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was built.
Based on the facts presented, this court cannot hold that the circuit court’s finding that
there had been a valid oral boundary-line agreement between the Sandlins and the Fullbrights
was clearly erroneous. Furthermore, we have previously held that the owners of adjoining
lands may fix a boundary line by agreement that will bind them and their grantees. See
Clements v. Cox, 230 Ark. 818, 327 S.W.2d 83 (1959). For these reasons, we affirm.
Affirmed.
H ENRY, J., not participating.
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