Clark v. Clark

632 S.W.2d 432, 4 Ark. App. 153, 1982 Ark. App. LEXIS 769
Procedural entryThis page is a short order in Clark v. Clark. Read the opinion of the Court — 4 Ark. App. 153
Court of Appeals of Arkansas·Decided April 7, 1982·No. CA 81-236·Published

Opinion

632 S.W.2d 432 (1982)

Homer D. CLARK and Ruby Clark, Husband and Wife, Appellants,
v.
James E. CLARK and Anna Mae Clark, Husband and Wife, Appellees.

No. CA 81-236.

Court of Appeals of Arkansas.

March 3, 1982.
Supplemental Opinion on Rehearing April 7, 1982.

*434 Elrod & Lee by John R. Elrod, Siloam Springs, for appellants.

Thomas J. Tucker, Siloam Springs, for appellees.

CRACRAFT, Judge.

Appellants, the Homer Clarks, appeal from a chancery court decree quieting title to a parcel of real estate in appellees, the James Clarks, asserting that the chancellor's finding that the appellees had acquired title to the disputed parcel by adverse possession was clearly against the preponderance of the evidence. We must agree.

The issues in this case are extremely difficult to follow without the aid of the following reproduction of "Petitioners' Exhibit D," a plat of a portion of Block 4 in E. N. Coons Revised Subdivision to the City of Siloam Springs, Benton County, Arkansas.

The surveyed lot lines in that block are shown in solid unbroken lines. It was not disputed that between 1966 and 1968 E. N. Coons, then the owner of Lots 2, 3, 4, 5, 6 and 7 of Block 4, constructed four houses purportedly located on Lots 4, 5, 6 and 7, but all of which lay astraddle of the lot lines as shown on Exhibit D. Coons also constructed a house on Lot 2 which occupies the position shown on the exhibit. All of these houses were conveyed by Coons in deeds describing them by lot numbers with reference to the original plat as surveyed. All the parties agreed that their houses were located on the lots substantially as shown on Exhibit D.

Appellees, the James Clarks, the fourth owners in the chain of title from Coons, purchased record title to Lot 4 on November 3, 1977. Appellants, the Homer D. Clarks, the sixth owners in the chain of title from Coons, purchased record title to Lots 2 and 3 on December 6, 1978. After purchasing the property the appellant Homer Clark caused a survey to be made which disclosed the error affecting all of Block 4. After *435 that survey Homer Clark made demand upon James Clark, which was refused. Thereafter the owners of Lots 6 and 7 joined with appellee James Clark in a petition to quiet their titles and reform the various mortgages securing lands on the respective properties. Each asserted that he had always claimed that the boundaries to his property were along the lines roughly equi-distant between and parallel to the houses, and that each had acquired title by adverse possession for a period of more than seven years. The lot lines contended for are shown on the attached plat by the broken or hatched lines.

The owner of Lot 5 was made defendant along with appellants. The appellants, the Homer Clarks, agreed that the appellees, the James Clarks, should be decreed to be the owners of that portion of Lot 3 on which their residence and rear concrete patio were physically located but counterclaimed to evict the appellees from any other portion of Lot 3.

During the course of the trial the owners of Lots 5, 6 and 7 consented to the entry of a decree realigning their boundary lines as prayed in the petition and the case was tried solely on the issue of the boundary line between appellants' Lot 3 and appellees' Lot 4.

After hearing evidence the chancellor, with the consent of the parties, made a personal inspection of the property. He thereafter filed written findings of fact and conclusions of law in which he found that there were no monuments, markings or physical evidence of any kind showing boundaries along the lines of adverse possession claimed by the appellees and that the backyard areas of both residences merged into one another without any physical indications of either the platted boundary line or the purported boundary line. He did find, however, that the value of the appellees' property would be substantially diminished if the property line in question remained as platted, and that it would be grossly inequitable to substantially destroy the value of the property by resolving the issue in the manner requested by the appellants. He specifically found that when the appellant, Homer Clark, had purchased his property the north line was shown to him to be generally in accord with the line contended for by the appellee, James Clark, and "thus decides for James Clark on equity."

The chancellor further found that as Homer Clark had agreed that the portion of Lot 3 actually occupied by appellees' residence should be vested in appellees by adverse possession, the only issue to be determined was what additional portions of Lot 3 the James Clarks and their predecessors had acquired by actual adverse possession. The chancellor found that the use and dominion over the balance of Lot 3 used for backyard area exercised by the James Clarks and their predecessors in title for more than seven years was such as to vest title in them by adverse possession to all of Lot 3 lying north of the hatched line on Exhibit D and entered a decree accordingly.

While this court reviews proceedings in chancery cases de novo we do not reverse the decision of a chancellor unless findings are clearly erroneous and clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure; Andres v. Andres, 1 Ark.App. 75, 613 S.W.2d 404, 409 (1981).

Applying this standard of review we first address the chancellor's finding that the value of the James Clark property would be substantially diminished if the property lines in question remained as platted and that it would be grossly inequitable to substantially destroy the value of that property by resolving the issues in the manner requested by appellant. We determine these findings and conclusions to be erroneous for at least two reasons: First, there was not a scintilla of evidence from any witness as to the effect an adverse decision would have on the value of either property. While personal inspections of the property are permissible and proper as an aid to better understanding by the chancellor of what the witnesses had testified to, such views are limited to that purpose and a judge's personal observations on the site are *436 not themselves evidence of facts. Mitcham v. Temple, 215 Ark. 850, 223 S.W.2d 817 (1949). Second, the chancellor does not state what rule of equity he relied upon in determining that a record title may be divested because it is more financially advantageous to one party or to the other that this be done. No such rule has been cited to us and we find none applicable to the circumstances presented by this record.

There is authority from sister states that in a proper case a court may balance hardship and equities and grant appropriate relief in cases involving the erection of costly structures which in part encroach on a neighbor's land. The rule is not applied merely because it would be inconvenient or expensive to remove the structure but only where the hardship of removal is grossly disproportionate to the hardship to the plaintiff if the structure is permitted to remain. That rule, however, is limited to encroaching structures. It does not, and cannot, provide a means for eminent domain for private purposes to alleviate other inconveniences or hardship. Tauscher v. Andruss, 240 Or. 304,

Clark v. Clark, 632 S.W.2d 432, 4 Ark. App. 153, 1982 Ark. App. LEXIS 769 (Ark. Ct. App. 1982).

632 S.W.2d 432 (Clark v. Clark) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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