Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kosofsky v. Byler

United States District Court, W.D. Arkansas, Harrison Division

October 1, 2014

DAVID KOSOFSKY and RUSALYN KOSOFSKY, Plaintiffs,
v.
MELVIN BYLER, ANGELA BYLER, and FLYING B RANCH, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

JIMM LARRY HENDREN, District Judge.

On the 25th day of August, 2014, the above captioned matter came on for a bench trial before the Court. Plaintiffs, David Kosofsky and Rusalyn Kosofsky, appeared in person and were represented by counsel. Defendants, Melvin Byler, Angela Byler and Flying B Ranch, LLC, also appeared in person and were represented by counsel. From the testimony of witnesses, the documents received into evidence, and the arguments of counsel during trial and through post-trial briefs, the Court finds and orders as follows:

1. Plaintiffs, David and Rusalyn Kosofsky ("plaintiffs" or "Kosofskys"), commenced this lawsuit on January 30, 2013, seeking a declaratory judgment that they are the rightful owners of two tracts of real property located in Searcy County, Arkansas, and that the defendants, Melvin and Angela Byler ("defendants" or "Bylers"), have not acquired ownership of that property by adverse possession. They also assert claims for trespass and ejectment.

2. In response, the Bylers denied plaintiffs' assertions and filed a counterclaim wherein they alleged that they have obtained ownership of at least some of the property at issue based on theories of boundary line by acquiescence, adverse possession, and prescriptive easement.

3. On December 24, 2013, plaintiffs filed an amended complaint naming Flying B Ranch, LLC as an additional defendant and setting forth the same claims as the original complaint.

FINDINGS OF FACT

4. Based on the evidence presented at trial, the Court makes the following findings of fact:

* During the period extending from 2006 through 2008, the Kosofskys purchased 77 acres of real property in Searcy County, Arkansas. This property will be referred to as "Property A".

* County Road 25 and a creek both run through Property A.

* Within Property A there are two smaller sections of land, identified as "Area 1" and "Area 2". Area 1 and Area 2 are the portions of Property A that are north of County Road 25 and through which the creek runs. The legal descriptions of said Area 1 and Area 2 are as follow:

^ Area 1:
The Southeast Quarter of the Northeast Quarter of Section 20, Township 17 North, Range 18 West, LESS AND EXCEPT the Following described Tract, to-wit: The West 350.00 feet of the Southeast Quarter of the Northeast Quarter, lying North of existing County Road, Section 20, Township 17 North, Range 18 West, Searcy County, Arkansas, as per West line of said Southeast Quarter of the Northeast Quarter based on a survey by Dale Lipps for Joe Rockhold, dated June 3, 1989, and revised December 21, 1989. Subject to existing easements, rights of ways and any property line that has been previously established by a Court of Law.
Also, the Southwest Quarter of the Northwest Quarter of Section 21, Township 17 North, Range 18 West, LESS AND EXCEPT 3 acres in the Northeast corner of said forty being described as all that part lying Northeast of where the public road now runs, being part of the Southwest Quarter of the Northwest Quarter of Section 21, Township 17 North, Range 18 West.
^ Area 2:
The West 350.00 feet of the Southeast Quarter of the Northeast Quarter, lying North of the existing County Road, Section 20, Township 17 North, Range 18 West, Searcy County, Arkansas, as per West line of said Southeast Quarter of the Northeast Quarter based on a survey by Dale Lipps for Joe Rockhold, dated June 3, 1989, and revised December 21, 1989. Subject to existing easements, rights of ways and any property line that has been previously established by a court of law.

* Flying B Ranch, LLC owns approximately 49 acres North of Property A.

* Flying B Ranch, LLC is an Arkansas limited liability company wholly owned by the Bylers.

* The land owned by Flying B was previously owned individually by the Bylers and Bylers currently hold a life estate interest in the property in their individual capacities. This property will be referred to as "Property B".

* The same creek that runs through Property A runs through a portion of Property B.

* The dispute in this lawsuit centers on the defendants' claim that the true boundary between their property and the property of the Kosofskys is a fence running along the North side of County Road 25. The defendants contend that they have taken the property North of the fence running along the North side of County Road 25 by adverse possession, boundary by acquiescence, or prescriptive easement. The property North of the fence line includes Area 1 and Area 2 of Property A.

* The Kosofskys contend that the true boundary between Property A and Property B is North of the fence that runs along County Road 25 and is properly described in the legal description of each deed exchanged when any portion of the property was transferred. This claimed boundary line will be referred to as the "description boundary line".

* Joseph and JoAnne Rockhold originally owned both Property A and Property B for many years.

* At some point, during the Rockhold's ownership of both properties, County Road 25 was built through Property A and a fence was erected along the North side of County Road 25.

* In 1988, Rockholds leased Property B to Steve Brewer.

* In 1991, Rockholds sold all of Property A, except for Area 2, to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.