FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-15-837]
HONORABLE GRISHAM PHILLIPS, JUDGE.
Lancaster & Lancaster Law Firm, PLLC, by: Clinton W.
Lancaster, for appellant.
Law Firm, by: Bobby McCallister, for appellees.
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.
appeal must be dismissed for two reasons, but some background
is necessary to understand both points.
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.
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 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.
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
commissioner's 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
court also heard testimony from Jane Craig, an employee with
the Saline County Assessor's 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.
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 Annotated section 18-60-506 and because
they did not sufficiently prove color of title to the
property at issue.
previously mentioned, however, we cannot address the merits
of Fisher's arguments at this time. Under Arkansas Rule
of Appellate Procedure-Civil 2(a)(1), an appeal may be taken
from a final decree entered by the circuit court. This
portion of Rule 2 has been interpreted to mean that for an
order to be appealable, it must dismiss the parties from the
court, discharge them from the action, or conclude their
rights to the subject matter in controversy. Ford Motor
Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003). The
order must not only decide the rights of the parties, but
also put the court's directive into execution, ending the
litigation or a separable part of it. Id.
long line of cases, Arkansas courts have held that a circuit
court's decree must describe the boundary line between
disputing land owners with sufficient specificity that it may
be identified solely by reference to the decree. See,
e.g., Petrus v. Nature Conservancy, 330 Ark.
722, 957 S.W.2d 688 (1997); Riddick v. Streett, 313
Ark. 706, 858 S.W.2d 62 (1993) (holding that the appointment
of a surveyor and a replatting of the entire subdivision was
only means of removing cloud on title created by flawed plat
and bills of assurance); Greenway Land Co. v.
Hinchey, 2010 Ark.App. 330, at 2; Penland v.
Johnston, 97 Ark.App. 11, at 13-14, 242 S.W.3d 635,
636-37 (2006). The decree itself must describe the boundary
line, and it must be done without reference to a plat that
may not be in existence in a few years. Riddick, 313
Ark. at 712, 858 S.W.2d at 64. As our supreme court
established in Petrus¸ "leaving those
lines to be established by a future survey may likely result
in additional disputes, litigation, and appeals." 330
Ark. at 726, 957 S.W.2d at 690.
while not exactly a boundary-line dispute, as it stands, the
current order invites future litigation. It was undisputed
that Fisher held a deed to some property identified as
"lots 5 and 6" and that the Cuningkins held a deed
to some property identified as "lots 1 and 2." It
was further undisputed that the neighborhood does not follow
the subdivision plat. And yet, the court referred to lot
numbers from that very same plat to resolve a dispute in
which two parties are claiming ownership of the same plot of