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Barton v. Brockinton

Court of Appeals of Arkansas, Division II

June 7, 2017

SHARON K. BARTON, ROBERT FRANKLIN BRYANT, GALLIE THOMAS BRYANT, AND FRANCES PAULETTE BRYANT APPELLANTS
v.
BOBBY AND SHEILA BROCKINTON APPELLEES

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-12-721] HONORABLE H.G. FOSTER, JUDGE

          C. James Kubicek and Robert S. Tschiemer, for appellants.

          Greg Crumpton, P.A., by: Greg Crumpton; and Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellees.

          BRANDON J. HARRISON, Judge

         Sharon K. Barton, Robert Franklin Bryant, Gallie Thomas Bryant, and Frances Paulette Bryant (the Bryants) and Bobby and Sheila Brockinton (the Brockintons) are adjacent landowners in a boundary-line dispute in Faulkner County. A previous final-order issue has been resolved, so the merit of the circuit court's decision is now before us.

         I.

         In 2012, the Bryants sued the Brockintons, alleging that they had destroyed a fence, trespassed, and built three storage units on the Bryants' property. The Bryants asked for $40, 000 in damages and for the court to eject the Brockintons from their property. The circuit court held a two-day bench trial in April 2014 and then entered judgment for the Brockintons. The Bryants' first point on appeal is that the court erred in accepting the Brockintons' proposed boundary line. The testimony of three surveyors-James Ross and Scott Foster for the Bryants and Tim Tyler for the Brockintons-is particularly important to the decision. Though much of the long testimony is not entirely clear, here is a summary of the surveyors' opinions on the boundary-line question.

         A. James Ross

         James Ross testified that he performed a survey for the Bryants in the mid-to-late 1990s (in section 7) and that he also did a survey in 1992 for the Revis property in section 18. Ross used a monument he found one mile south to establish the range line[1] in the southeast quarter of section 18. He also established "the next corner up, " which was the corner directly north along the range line. He agreed that the range line he established in 1992 (the "Ross survey") was also the boundary line of the Bryant property. According to Ross, "In this case, the west [boundary] line of the Bryant property is a range line. That [range] line is supposed to be straight for six miles. It is not supposed to bend for six miles." He agreed that the line had been established "before the Brockintons [sic] got involved or there was any development in [the] area."

         Ross further testified that he again ascertained the disputed boundary line in 2009 (when he did a survey for the Bryants) by establishing the range line using the same section corner as he did in the 1990s. Ross testified that the corner was "in the middle of [highway 36]" and that it "just takes 15 minutes maybe to shoot that to recheck that." The corner "establishes the same range line running in a north/south direction that is this border of the entire Bryant property."

         Ross conducted a third survey dated 18 August 2011, at the Bryants' request, and it showed that two of the Brockintons' storage buildings and part of a third building were located east of the range line (the property boundary), according to Ross. This survey was admitted as Plaintiff's Exhibit 6. Ross confirmed that it was "the same range line two times done before."

         A line drawn on the Ross survey (Plaintiff's Exhibit 6) is labeled the "Tyler Line." The southernmost point on the "Tyler Line" is labeled "PK Nail" and next to it is an arrow with these words: "Tyler used this point as being the SE Corner SE 1/4-SE 1/4 Section 12, T-60N R-12-W." Ross described the PK nail shown on the Ross survey as "a little magnetic nail about the size of your thumb." He said that it was a type of monument or landmark that is normally found in survey work and that he found the PK nail when he did the previous two surveys. Ross concluded that the PK nail was too far to the east because its location did not fit with the other established corners or reference marks. He explained that, in Arkansas, the point of origination for all surveys is where the mouth of the Arkansas River and the St. Francis River intersect, having been established following the Louisiana Purchase. (This origination point is at the Fifth Principal Meridian.) He also testified that the range line he established lines up with the original range lines established in the Louisiana Purchase.

         According to Ross, his range line was accurate because "You can't just find some corner and say that's it. You better check with other corners to make sure everything's in accordance." In Ross's opinion, the property line in Tyler's survey could not be supported and was not correct because it could not be tied in to other corners and monuments like his range line could.

         On cross-examination, Ross agreed that prior to 1992 he had not surveyed an area using this range line. He could not say whether prior surveyors used what he considered to be the correct range line or whether they had used the PK nail. Ross agreed that a surveyor would yield to courses and distances in prior survey work if "there are accepted corners, " but he did not agree that the PK nail was an accepted corner on the range line before he conducted his first survey in the 1990s. Even if the PK nail was an accepted monument "for years prior to the early '90s, " Ross said that he would not have to yield to it because it did not align with "established and accepted corners." When asked, "Back to original land patents and surveys, you cannot say whether or not that this PK nail was utilized for the range lines, can you?" he answered, "Possibly I cannot." Ross nonetheless denied that the PK nail was a correct monument to use to establish the range line.

         On redirect, Ross agreed that the range lines were established in the 1800s, that they were fixed, and that they cannot be changed. And "going all directions, I can't find anything else but what I've got."

         On recross-examination, Ross agreed that he would probably yield if "no one else has ever utilized the range line and everybody's utilized the PK nail even though incorrect." He could not say that the Tyler line was established in litigation in 1999. Ross agreed that there was an ...


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