{ "id": 6139830, "name": "Mae Lillian SMITH et al v. Jethral STEWART et al", "name_abbreviation": "Smith v. Stewart", "decision_date": "1983-12-21", "docket_number": "CA 83-110", "first_page": "201", "last_page": "205", "citations": [ { "type": "official", "cite": "10 Ark. App. 201" }, { "type": "parallel", "cite": "662 S.W.2d 202" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "246 Ark. 1209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604062 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "200-01" } ], "opinion_index": 0, "case_paths": [ "/ark/246/1209-01" ] }, { "cite": "264 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668792 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0064-01" ] }, { "cite": "203 N.W. 62", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1925, "opinion_index": 0 }, { "cite": "230 Mich. 439", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1681944 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/mich/230/0439-01" ] }, { "cite": "232 N.W. 200", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1930, "opinion_index": 0 }, { "cite": "251 Mich. 578", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1842940 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/mich/251/0578-01" ] }, { "cite": "218 Ark. 767", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612096 ], "weight": 2, "year": 1951, "pin_cites": [ { "parenthetical": "a stone and cement wall encroached upon a twenty-six foot strip owned by the adjoining landowner" }, { "parenthetical": "a stone and cement wall encroached upon a twenty-six foot strip owned by the adjoining landowner" } ], "opinion_index": 0, "case_paths": [ "/ark/218/0767-01" ] }, { "cite": "224 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646498 ], "weight": 2, "year": 1954, "pin_cites": [ { "parenthetical": "a brick wall leaned over adjoining landowner's property line" }, { "parenthetical": "a brick wall leaned over adjoining landowner's property line" } ], "opinion_index": 0, "case_paths": [ "/ark/224/0413-01" ] }, { "cite": "236 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681341 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "the eaves of a newly built house extended over the property line of the adjoining landowner" }, { "parenthetical": "the eaves of a newly built house extended over the property line of the adjoining landowner" } ], "opinion_index": 0, "case_paths": [ "/ark/236/0050-01" ] }, { "cite": "243 Ark. 218", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718903 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "a newly constructed house encroached a distance of 3.4 feet onto the adjoining landowner's property" }, { "parenthetical": "a newly constructed house encroached a distance of 3.4 feet onto the adjoining landowner's property" } ], "opinion_index": 0, "case_paths": [ "/ark/243/0218-01" ] }, { "cite": "247 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600601 ], "weight": 4, "year": 1969, "pin_cites": [ { "parenthetical": "a small church was mistakenly built upon adjoining landowner's unfenced, wooded acre" }, { "parenthetical": "a small church was mistakenly built upon adjoining landowner's unfenced, wooded acre" } ], "opinion_index": 0, "case_paths": [ "/ark/247/0006-01" ] } ], "analysis": { "cardinality": 533, "char_count": 8019, "ocr_confidence": 0.836, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3474536546339188 }, "sha256": "ed39cb3aad660c2572411e32e269c7a969a8c15775ff4301ac23251a748f802d", "simhash": "1:432ebddf3f2fdd75", "word_count": 1260 }, "last_updated": "2023-07-14T22:52:08.069200+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, C.J., and Cooper, J., agree." ], "parties": [ "Mae Lillian SMITH et al v. Jethral STEWART et al" ], "opinions": [ { "text": "Tom Glaze, Judge.\nIn this chancery court case, appellants filed suit seeking a mandatory injunction requiring appellees to remove a brick house which they mistakenly constructed on appellants\u2019 land. In the alternative, appellants requested confirmation of title to the house or damages for the unauthorized taking of 1.86 acres upon which the structure and improvements were built plus damages to appellants\u2019 remaining acreage. Appellees counterclaimed seeking damages under the Arkansas Betterment Statutes and under the theory of unjust enrichment. The trial court rendered alternative judgments: First, appellants were given the option to pay $43,180 to appellee for the house; second, upon appellants\u2019 failure to exercise such option, appellants were entitled to a deed to the subject 1.86 acres upon the prompt payment of $1,875 for the land taken plus $1,650 to the remaining acreage. Furthermore, appellants were awarded $1,000 damages to a roadway on their property, $1,000 sentimental and/or distress damages and $1,000 attorneys\u2019 fees and costs. Appellants appeal, contending the court\u2019s holding is contrary to the law. Appellees cross-appeal, challenging the validity of the roadway and sentimental damages awarded by the court. The trial judge, applying equitable principles, attempted to resolve the parties\u2019 unfortunate predicament, but in doing so, we believe he erred.\nThe relevant facts are virtually undisputed. Appellants live in California, and the appellees reside in Chicago, but both sets of parties own adjoininglandin Arkansas. In 1975, the appellees employed a surveyor, Charles Webb, to survey their acreage. Webb completed a survey in November, 1975, but that survey was inaccurate because it was based on misinformation given him by appellees\u2019 cousin, a Mr. Johnson. As a result of this erroneous survey, appellees\u2019 south line of their land extended onto 1.86 acres owned by appellants. Webb discovered this error, and in December, 1975, he correctly resurveyed the land. However, one of his original stakes fixed during the first erroneous survey remained in place, and that stake apparently was the point of reference from which appellees mistakenly constructed a brick veneer house on appellants\u2019 land. Upon learning of the construction of appellees\u2019 house, appellants brought this action.\nAt the conclusion of the trial, the trial judge took the case under submission and subsequently rendered a memorandum opinion setting forth his findings of fact and conclusions of law. In reaching his decision, the trial judge found that appellants were not negligent in looking after their property or in failing to warn appellees against starting \u2014 or stopping \u2014 the construction of the house. Also, he found that, while they may have been careless to some extent, appellees built the house in good faith. The judge also determined that the appellees\u2019 house could not be moved without completely destroying it. Finally, the chancellor determined the Arkansas Betterment Statutes were not in issue because the appellees concededly lacked color of title in the property on which they built their house. See Ark. Stat. Ann. \u00a7\u00a7 34-1423 et seq. (Repl. 1962).\nIn their arguments on appeal, appellees recognize the established line of cases wherein Arkansas courts have issued or directed mandatory injunctions requiring the removal of improvements placed upon the land of another. Dendy v. Greater Damascus Baptist Church, 247 Ark. 6, 444 S.W.2d 71 (1969) (a small church was mistakenly built upon adjoining landowner\u2019s unfenced, wooded acre); McLendon v. Johnston, 243 Ark. 218, 419 S.W.2d 309 (1967) (a newly constructed house encroached a distance of 3.4 feet onto the adjoining landowner\u2019s property); Beaty v. Gordon, 236 Ark. 50, 364 S.W.2d 311 (1963) (the eaves of a newly built house extended over the property line of the adjoining landowner); Fulks v. Fredeman, 224 Ark. 413, 273 S.W.2d 528 (1954) (a brick wall leaned over adjoining landowner\u2019s property line); and Leffingwell v. Glendenning, 218 Ark. 767, 238 S.W.2d 942 (1951) (a stone and cement wall encroached upon a twenty-six foot strip owned by the adjoining landowner). Appellees argue these prior cases are factually distinguishable from the situation presented herein because the removal of appellees\u2019 house would destroy it; they contend the application of the rule requiring the removal of the house as an encroachment is too harsh and inequitable. In support of appellees\u2019 position, they cite two Michigan Supreme Court cases, Hardy v. Burroughs, 251 Mich. 578, 232 N.W. 200 (1930), and Rzeppa v. Seymour, 230 Mich. 439, 203 N.W. 62 (1925). The simple answer to appellees\u2019 argument is that the rule applied by the Arkansas Supreme Court in such encroachment matters differs from the more lenient rule adopted by the Michigan court.\nUnder the strict common-law rule, a permanent improvement placed upon another\u2019s land by mistake became a part of the realty and could not be removed. In 1921, our Legislature attempted to temper the harshness of the common-law rule by providing that the person who erroneously places an improvement on another\u2019s land shall have twelve months\u2019 time from the date of the discovery of the erroneous placing to remove it. See Ark. Stat. Ann. \u00a7 50-103 (Repl. 1971). Interestingly, this 1921 enactment, \u00a7 50-103, was not cited in any cases until Dendy v. Greater Damascus Baptist Church, supra, in 1969 and again in Hughey v. Bennett, 264 Ark. 64, 568 S.W.2d 46 (1978). The Supreme Court decided Shick v. Dearmore, 246 Ark. 1209, 442 S.W.2d 198 (1969), shortly before its decision in Dendy, but apparently \u00a7 50-103 was not brought to the Court\u2019s attention. The Court, in Shick, to ease the harshness of the common-law rule, adopted the slightly more equitable principle of allowing the removal of the improvements in an equitable proceeding whenever that course can be followed without substantial damage to the land. See also Justice Fogleman\u2019s concurring opinion in Dendy v. Greater Damascus Baptist Church, supra. Shick was a well driller who mistakenly drilled a water well on Dearmore\u2019s property. Although the Supreme Court indicated Shick should be allowed to remove his well\u2019s casingandrestore the land to its original condition, it remanded the case for further proceedings to determine if the removal could be accomplished without damage to the land that might fairly be considered substantial when compared to the pecuniary loss that Shick would otherwise sustain. Id. at 1214, 442 S.W.2d at 200-01.\nAbout two months after Shick, the Supreme Court decided Dendy wherein the Court, finding the church building erroneously built on Dendy\u2019s land should be removed, remanded the case for the chancellor to consider the court\u2019s decision in Shick and the possible application of \u00a7 50-103. The Court further instructed the chancellor to fix the amount of any damages that Dendy may have suffered by the removal of timber from his land.\nWe believe the Court\u2019s instructions to the chancellor in Dendy are applicable here, and accordingly, we remand this cause with directions to vacate the trial court\u2019s decree for further proceedings consistent with this opinion. On remand, the trial court, when considering the damage issues, may also reconsider its award to appellants for damages to their roadway.\nReversed and remanded.\nMayfield, C.J., and Cooper, J., agree.\nChief Justice Harris and Justice Fogleman dissented, stating that the majority decision overruled a long-standing rule of property, i.e., that permanent fixtures become part of the realty and belong to the owner thereof.\nIn his concurring opinion in Dendy, Justice Fogleman suggested the second paragraph of \u00a7 50-103 is unconstitutional under Article 2, \u00a7 13 of the Arkansas Constitution.", "type": "majority", "author": "Tom Glaze, Judge." } ], "attorneys": [ "John W. Walker, P.A., for appellants.", "Graves ir Graves, by: John Robert Graves, for appellees." ], "corrections": "", "head_matter": "Mae Lillian SMITH et al v. Jethral STEWART et al\nCA 83-110\n662 S.W.2d 202\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 21, 1983\nJohn W. Walker, P.A., for appellants.\nGraves ir Graves, by: John Robert Graves, for appellees." }, "file_name": "0201-01", "first_page_order": 223, "last_page_order": 227 }