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Fisher v. Cuningkin

Court of Appeals of Arkansas, Division IV

May 15, 2019

Ruby FISHER, Appellant
v.
Dannie L. CUNINGKIN and Veneine P. Cuningkin, Appellees

Page 32

          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 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 on.

          The 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.

         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 ...


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