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APPEAL
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-15-837],
HONORABLE GRISHAM PHILLIPS, JUDGE
Lancaster
& Lancaster Law Firm, PLLC, Benton, by: Clinton W. Lancaster,
for appellant.
Baxter
Law Firm, by: Bobby McCallister, for appellees.
OPINION
MIKE
MURPHY, Judge
Ruby
Fisher appeals the May 25, 2018, order of the Saline County
Circuit Court quieting title in certain property to the
appellees, Veneine and Dannie Cuningkin. We are unable to
reach the merits of the case at this time, and we dismiss the
appeal without prejudice.
This
appeal must be dismissed for two reasons, but some background
is necessary to understand both points.
The
property at issue in this case consists of two lots within
the D.S. Moore Addition to the City of Benton, Saline County,
Arkansas. The original plat for the neighborhood was filed in
1901, but the neighborhood that exists today does not match
that plat. The streets do not match and the lot numbers as
they exist on the plat do not line up with the lots as they
really exist. This confuses the dispute between the parties
and, in a way, touches on the issues of finality.
In
2015, Fisher sued the Cuningkins for trespass and ejectment,
claiming that the Cuningkins were using her land ("lots
5 and 6") without permission. The Cuningkins answered
and counterclaimed for a quiet-title order, asserting that
they were instead in possession only of land to which they
held valid title by deed ("lots 1 and 2"). The
Cuningkins essentially argued that Fisher was mistaken as to
the location of her property, which the Cuningkins
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claimed was actually north of their land. Fisher then amended
her complaint to add a claim for title by adverse possession
to the disputed land, i.e., that which the Cuningkins
referred to as Lots 1 and 2. In other words, indications are
that the parties are arguing over what is probably the same
plot of ground, though they at times refer to it by the lot
numbers that correspond to their respective deeds.
At
trial, the court heard testimony from the parties that Fisher
and her siblings grew up in a house that was on the contested
property but that it burned down in the 1990s. The remnants
of the old house can still be found on the contested
property. Fisher has paid taxes on the land and has a
redemption deed for lots 5 and 6 from the state
commissioners office. The Cuningkins did not disagree with
Fisher on any of these points, but they asserted that when
they purchased lots 1 and 2 by quitclaim deed in 2007, they
acquired title to the land that the house previously sat on.
The
court also heard testimony from Jane Craig, an employee with
the Saline County Assessors Office, who works in the
Geographic Information System department and is familiar with
the neighborhood; and from Aaron Rasburry, the Saline County
land surveyor. Craig testified that the D.S. Moore Addition
plat does not match the placement of the lots today. She said
there was no legal description in 1901 (when it was platted),
the descriptions are vague, it is not easy to tell where the
actual boundaries are, and she cannot identify what is or is
not accurate in the subdivision. Likewise, Rasburry testified
that he was unable to make an accurate survey because there
were conflicting elements in the 1901 deed, the streets are
not constructed as platted, and he could not "find Lots
1 and 2 on the ground." He stated that it could very
well be that none of the residents of that neighborhood are
living on their deeded lots.
At the
conclusion of the hearing, the circuit court found that the
Cuningkins own "lots 1 and 2." It quieted title in
them. It further found that Fisher owns "lots 5 and
6." Notably, the court did not adopt any survey,
identify any boundary lines, or otherwise identify where lots
1, 2, 5, or 6 are. Fisher appealed, arguing that the court
erred in quieting title in the Cuningkins because they did
not comply with the notice requirement for quieting title
under Arkansas Code ...