{ "id": 6141824, "name": "James L. ROBERTS and Cynthia A. Roberts v. Robert Dale BOYD; Kennie Mae Boyd and Donald Winningham", "name_abbreviation": "Roberts v. Boyd", "decision_date": "2006-03-01", "docket_number": "CA 05-568", "first_page": "345", "last_page": "351", "citations": [ { "type": "official", "cite": "94 Ark. App. 345" }, { "type": "parallel", "cite": "230 S.W.3d 301" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "64 Ark. App. 310", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141313 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/64/0310-01" ] }, { "cite": "68 Ark. App. 256", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139968 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/68/0256-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-11-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 18", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "334 Ark. 561", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655458 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0561-01" ] }, { "cite": "320 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451223 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0015-01" ] }, { "cite": "341 Ark. 716", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257786 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/341/0716-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-60-503", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 18-11-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 587, "char_count": 12136, "ocr_confidence": 0.761, "pagerank": { "raw": 5.842886217144834e-08, "percentile": 0.36285127047947585 }, "sha256": "cab6b27e95fe540ee3e942f11c5dcf197b792270099efdc4ca38183d2df141c6", "simhash": "1:35fed66772cecc5e", "word_count": 1985 }, "last_updated": "2023-07-14T18:52:04.997483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird, Crabtree, Baker, and Roaf, JJ., agree.", "Robbins, J., dissents." ], "parties": [ "James L. ROBERTS and Cynthia A. Roberts v. Robert Dale BOYD; Kennie Mae Boyd and Donald Winningham" ], "opinions": [ { "text": "Wendell L. Griffen, Judge.\nJames and Cynthia Roberts appeal from the denial of their request for a new trial after the trial court denied their request to quiet title in them to certain property owned by appellee Donald Winningham, whose predecessors-in-title were appellees Robert and Kennie Mae Boyd. The Robertses argue that the trial court erred in determining that they could not establish adverse possession because the land they claimed was not contiguous to their own property. We reverse and remand for further proceedings because the trial court misinterpreted the \u201ccontiguous\u201d requirement under the adverse-possession statute.\nThe Boyds purchased their property in 1981. At that time, a barbed-wire fence ran between the Boyds\u2019 property and the property to the east, which was purchased by the Robertses in 1990 via a land commissioner\u2019s sale. It is undisputed that the parties treated the fence line as the property line and that the Robertses performed various acts of ownership of the disputed area, such as sporadic maintenance of the fence and continually using the property as a pasture for horses. While the presence of a ditch on the east side of the fence made it impossible for the Robertses to mow up to the fence line, they mowed and bushhogged the ditch area as close to the fence as they could. Finally, it is undisputed that the Robertses had color of title to their property and paid the requisite ad valorem taxes on their property.\nThe Boyds had a survey performed in 2002, referred to in the record as the \u201cJorgensen survey,\u201d which revealed that the true property line, according to the parties\u2019 deeds, ran from seventy-five to ninety-six feet on the Robertses\u2019 side of the barbed-wire fence. Pursuant to this survey, new boundary lines were marked and staked. During the summer of 2004, after seeing the markers, Mr. Roberts contacted Mr. Boyd and was informed that the Boyds were claiming the property according to the new markers. Mr. Roberts was further informed of the Boyds\u2019 intention to sell the property to appellee Winningham.\nThe Robertses filed suit against both the Boyds and Win-ningham to quiet title to the disputed portion of the property. The Boyds subsequently issued Winningham a deed to the property (Winningham deed). Winningham began removing the old fence and built a new fence based on the boundaries as determined by Doug Hemmingway, a surveyor who relied on the Jorgensen survey. The Robertses obtained an injunction to prevent further removal of the fence, pending the outcome of this case. Appellees counterclaimed, requesting that the court declare the boundary between the property established by the new barbed-wire fence constructed by Winningham pursuant to the Jorgensen survey.\nThe trial court granted appellees\u2019 request declaring Win-ningham to be the owner of the property, which is described as:\nA part of the Southeast Quarter (SE 1/4) and a part of the Southwest Quarter (SW1/4) of Section 3, Township 16 North, Range 31 West in Washington County, Arkansas and being more particularly described as follows: Beginning at the center of Section 3, thence N 88\u00b0 2T42\" E, 328.75 feet; thence S 00\u00b057'25\" W, 2038.91 feet to the North right-of-way of Double Springs Road; thence along said right-of-way S 72\u00b006'57\" W, 196.64 feet; thence S 69\u00b046'59\" W, 30.15 feet; thence leaving said right-of-way, N 13\u00b005'35\" W 381.89 feet; thence S 83\u00b0 57'47\" W 50.15 feet; thence N 00\u00b004'29\" E, 180.26 feet; thence S 85\u00b053'37\" W, 356.80 feet; N 00\u00b055'41\" E, 567.62 feet; thence N 82\u00b047' 17\" W, 255.98 feet; thence N 64\u00b059'19\" W, 173.49 feet; thence N 01\u00b000T3\" E, 882.86 feet; thence N 88\u00b02T42\" E, 800.23 feet to the Point of Beginning. Containing 38.17 acres more or less and subject to easements and rights-of-way of record.\nIn so doing, the court did not find that the Robertses failed to demonstrate sufficient acts of ownership to claim title to the land by adverse possession. Rather, based on Hemmingway\u2019s testimony, the court found that the Robertses\u2019 westernmost boundary was \u201cat least 50 feet short of\u2019 the Boyds\u2019 easternmost boundary, and determined that the Robertses failed to prove that the property to which they claimed title by adverse possession was contiguous to their own property.\nThe trial court thereafter denied the motion for a new trial filed by the Robertses, pursuant to Arkansas Rule of Civil Procedure 59(a)(8). This rule allows a trial court to grant a new trial based on an error of law occurring at the trial that was objected to by the party making the application and which affected the substantial rights of the party. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). The decision to grant or deny a new trial under Rule 59(a)(8) is within the discretion of the trial court, and that decision is not reversed absent a manifest abuse of discretion, that is, discretion exercised thoughtlessly and without due consideration. Montgomery Ward & Co., Inc. v. Anderson, 334 Ark. 561, 976 S.W.2d 382 (1998). We reverse and remand because the trial court erred in denying the Robertses\u2019 request for a new trial.\nThe Robertses claim title by adverse possession pursuant to Ark. Code Ann. \u00a7 18-ll-106(a)(2) (Supp. 2005), which provides that the person claiming title to property by adverse possession must have had actual or constructive possession of the property being claimed and must have had color of title to the real property contiguous to the real property being claimed by adverse possession for at least seven years, and during that time must have paid ad valorem taxes on the contiguous real property to which the person has color of title. Additionally, the person claiming the property must demonstrate that his possession of the property met the common law elements of establishing adverse possession: possession of the land for at least seven years that was visible, continuous, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. Ark. Code Ann. \u00a7 18-11-106(c); Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999).\nThe case upon which the trial court relied was Patrick v. McSperritt, 64 Ark. App. 310, 983 S.W.2d 455 (1998). In that case, the property claimed was across the street from the property owned by the parties claiming adverse possession. The McSperritt court determined that \u201ccontiguous\u201d for purposes of the adverse-possession statute means in actual contact or touching. Thus, pursuant to McSperrit, the actual property claimed by adverse possession must be in contact with or must touch the property to which the adverse possessors own color of title and on which they have paid ad valorem taxes.\nMcSpenitt does not compel affirmance here. The property gap in this case is a \u201cmanufactured\u201d gap based on the property descriptions in the parties\u2019 deeds, as recognized by the Jorgensen survey. According to the Jorgensen survey, the Robertses\u2019 property never touches Winningham\u2019s property because it \u201cmisses\u201d his property by a distance of six to fifty feet along Winningham\u2019s eastern border. Thus, the property described in the Robertses\u2019 deed is not contiguous to the property described in Winningham\u2019s deed, hence producing the \u201cgap property.\u201d\nHowever, unlike the street that disrupted the contiguous nature of the property in the McSpenitt case, here there are no physical boundaries to disrupt the contiguous nature of the property that lies between Robertses\u2019 western border and Winning-ham\u2019s eastern border, which includes the gap property. Winning-ham\u2019s property is contiguous to the gap property on the west and the Robertses\u2019 property is contiguous to the gap property on the east. Because the Robertses clearly claim title to all of the property from their western border to Winningham\u2019s eastern border, including all of the gap property, there is no gap between the property owned by the Robertses and the land they claim by adverse possession (in other words, the property owned by the Robertses is contiguous to the property they claim by adverse possession).\nThus, the fact that the Robertses\u2019 property and Winningham\u2019s property as described in their respective deeds is not contiguous did not warrant a finding that the Robertses did not adversely possess all of the gap property that lies between their respective properties because \u00a7 18-ll-106(a)(2) requires only that the real property owned by the party claiming adverse possession be contiguous to the property claimed by adverse possession. Here, as previously noted, it is clear that the Robertses\u2019 property is contiguous to the property that they claim by adverse possession.\nPresumably because the trial court misinterpreted the \u201ccontiguous\u201d requirement of the adverse-possession statute, it dismissed with prejudice the Robertses\u2019 claim against Winningham without making any findings regarding the sufficiency of the Robertses\u2019 acts of ownership over any property owned by Win-ningham that is contiguous to the Robertses\u2019 property. It may be that Winningham is the true owner of some or all of the gap property and possesses an incorrect deed. It may be that the Robertses are the true owners of some or all of the gap property and possess an incorrect deed. It may be that an inaccurate survey created the gap. However, there is no evidence or even a suggestion in the record that a third parcel is involved or that a third party is involved. What is clear is that we have no findings regarding the sufficiency of the Robertses\u2019 acts of ownership regarding any property that is contiguous to their property that is owned by Winningham.\nOnly if the trial court determines that neither Winningham nor the Robertses can be the true owner of any gap property that is contiguous to the Robertses\u2019 property, can it then determine that the contiguous requirement of \u00a7 18-ll-106(a)(2) defeats the Robertses\u2019 claim. Thus, it is necessary to reverse and remand for the trial court to make such additional determinations as are necessary.\nReversed and remanded.\nBird, Crabtree, Baker, and Roaf, JJ., agree.\nRobbins, J., dissents.\nWe were unable to ascertain why the Boyds did not move to be dismissed from the case after the sale of the property.", "type": "majority", "author": "Wendell L. Griffen, Judge." }, { "text": "John B. Robbins, Judge,\ndissenting. I would affirm the trial j court\u2019s decision because it did not err in finding that the contiguous requirement of Ark. Code Ann. \u00a7 18-11-106 (a) (2) (Supp. 2005) defeated the appellants\u2019 adverse possession claim. I cannot agree with the majority\u2019s conclusion that the Robertses\u2019 property is contiguous to the property that they claimed by adverse possession. From the Robertses\u2019 complaint, it is evident that they were claiming adverse possession to Mr. Winningham\u2019s property as identified by the Jorgen-son survey and, as the majority points out, this survey showed that the properties described in the parties\u2019 deeds are not contiguous. It is not apparent that the Robertses were claiming ownership of the gap property, but even if they were, they were pursuing something that the trial court lacked the authority to do, given that the record title holder was unknown and notice of the quiet-title action had not been published pursuant to Ark. Code Ann. \u00a7 18-60-503 (Repl. 2003). See Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000).\nMoreover, I disagree with the majority\u2019s decision to remand for additional findings regarding ownership of the gap property. The appellants were required to establish that their property was contiguous to Mr. Winningham\u2019s, and the trial court concluded that this was not proved. There was no evidence whatsoever that Mr. Winningham or the Robertses held record title to the gap property, and I see no reason for the trial court to reconsider a finding that it has already made on the evidence presented.\nFor these reasons, I respectfully dissent.", "type": "dissent", "author": "John B. Robbins, Judge," } ], "attorneys": [ "Hodson, Woods & Snively, LLP, by: Bryan Sexton, for appellants.", "Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Curtis E. Hogue, for appellees." ], "corrections": "", "head_matter": "James L. ROBERTS and Cynthia A. Roberts v. Robert Dale BOYD; Kennie Mae Boyd and Donald Winningham\nCA 05-568\n230 S.W.3d 301\nCourt of Appeals of Arkansas\nOpinion delivered March 1, 2006\nHodson, Woods & Snively, LLP, by: Bryan Sexton, for appellants.\nHall, Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Curtis E. Hogue, for appellees." }, "file_name": "0345-01", "first_page_order": 371, "last_page_order": 377 }