Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust

386 S.W.3d 704, 2011 Ark. App. 720, 2011 WL 5971769, 2011 Ark. App. LEXIS 769
CourtCourt of Appeals of Arkansas
DecidedNovember 30, 2011
DocketNo. CA 11-276
StatusPublished
Cited by2 cases

This text of 386 S.W.3d 704 (Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust, 386 S.W.3d 704, 2011 Ark. App. 720, 2011 WL 5971769, 2011 Ark. App. LEXIS 769 (Ark. Ct. App. 2011).

Opinions

JOSEPHINE LINKER HART, Judge.

|, This is an appeal from a boundary dispute involving an alleged “spite” fence. Following a bench trial, the Garland County Circuit Court dismissed the claims brought by appellants Jeffrey and Rebecca Jenkins and quieted title to the property in appellees Dale E. & Betty Fogerty Revocable Trust (the trust); Dale Fogerty, individually and as trustee; and Betty Fogerty, individually and as trustee. On appeal, appellants argue that the circuit court erred (1) in dismissing their trespass claim and quieting title in the appellees because appellees’ survey ignored the legal standards for surveys; (2) in granting ap-pellees’ motion, at the close of appellants’ case, to dismiss appellants’ claim that ap-pellees’ newly constructed fence was a nuisance; (3) in ruling that appellants had voluntarily dismissed their claim that ap-pellees had violated the bill of assurance; and (4) in entering a decree that referenced the survey without |¡>attaching a copy of the survey to the decree. Appel-lees cross-appeal, arguing that the court erred in dismissing their cause of action for quiet title based on boundary by acquiescence and in not awarding appellees their attorney’s fees and costs. We hold that appellants made a prima facie case that the fence is a nuisance and reverse and remand that claim for further proceedings. We affirm on appellants’ remaining claims and on cross-appeal.

The parties own adjacent properties fronting Lake Hamilton in Garland County, sharing a common boundary line approximately 254 feet long. Appellants purchased their property in October 2008. Appellees purchased their property in March 2009. In July 2009, appellees planted a tree and built birdhouses on a portion of the property claimed by appellants. After appellants complained, appel-lees removed both the tree and the birdhouses. According to appellants, this complaint made appellees unhappy and led to the construction of the fence by appel-lees the following week.

On April 15, 2010, appellants sued for negligence in damaging their pump house, nuisance in the erection of the fence in an unsightly manner that obstructed appellants’ view of Lake Hamilton, trespass in that the fence was built on appellants’ property and that part of the roof covering appellees’ home extended across the property line, and violation of the bill of assurance. Appellees answered and counterclaimed seeking to quiet title to their property up to the fence as described in a plat prepared by Wade Spainhour after he had compiled a survey of their property. Alternatively, they pled that they were the owners of the property by virtue of having a boundary by acquiescence. They also sought damages for trespass and their attorney’s fees and costs.

Is At the close of appellants’ case, appel-lees moved to dismiss appellants’ complaint. The court granted the motion as to appellants’ claims for nuisance and violation of the bill of assurance, but denied the motion on appellants’ trespass claim. Appellants nonsuited their negligence claim and the case continued on appellants’ trespass claim and on appellees’ claim to quiet title. At the close of all the proof, the circuit court dismissed appellees’ claims for boundary by acquiescence and damages. The court took under advisement the trespass claim and appellees’ quiet-title claim.

In a letter opinion, the court established the boundary line. According to the court, the matter was a battle of surveyors. The court determined that appellees’ surveyor Wade Spainhour had greater experience than Shawn Blees, appellants’ surveyor. The court gave greater weight and credibility to Spainhour’s testimony and, consequently, quieted title in appellees consistent with the Spainhour survey. The court dismissed appellees’ claim for boundary by acquiescence. The court ruled that each party was to bear their own attorney’s fees and costs. The court’s written judgment was entered on December 1, 2010. This appeal and cross-appeal followed.

We begin with appellants’ argument that the circuit court erred in dismissing their nuisance claim. Our standard of review requires that we review the evidence in the light most favorable to the party against whom the dismissal was sought, giving the evidence its highest probative value and taking into account all reasonable inferences deducible from it. Follett v. Fitzsimmons, 103 Ark.App. 82, 286 S.W.3d 742 (2008).

We note that, contrary to appellees’ stated belief, Arkansas has addressed the issue of [^whether a fence can be enjoined as a nuisance. In DeMers v. Graupner, 186 Ark. 214, 53 S.W.2d 8 (1932), the court reviewed two competing lines of cases. The older, common-law view provided that

an owner of land may erect on his own property any kind of structure he may desire, even though it might have the effect of causing great annoyance to the neighboring owners, and that the motive or intent of the person erecting the structure cannot be inquired into unless the structure can have no benefit or advantage, but is for the avowed or manifest purpose of damaging a neighbor; nor could an owner be prevented, even though the purpose is a malicious one, from erecting a structure which merely prevents the free use of light and air by the adjoining property owner.

186 Ark. at 216, 53 S.W.2d at 9. The second, more modern line of decisions is to the effect that an adjoining landowner may enjoin the erection or maintenance of a structure erected for the purpose of annoying him and making the use of his property less desirable. Id. The DeMers court concluded that, regardless of the animosity between the neighbors, the construction of the high solid fence was designed at least in part to protect a garden. 186 Ark. at 216-17, 53 S.W.2d at 9.

Here, the evidence presented by appellants, viewed in a light most favorable to them, showed the following: the fence was built some two feet off the ground and the boards extended to approximately nine feet off the ground. Appellees erected the fence shortly after appellants and appel-lees had a disagreement over the tree and birdhouses appellees placed on appellants’ property. Other testimony indicated that the fence blocked part of appellants’ view of the lake. Moreover, Jim Watkins, a real estate agent, testified that the fence was unattractive and lowered the value of both properties. Other testimony indicated that the fence was erected with nails protruding to appellants’ side of the fence, creating a safety hazard. From | fithis evidence, we hold that appellants made a prima facie case when they presented testimony from which it could be inferred that appellees acted maliciously in erecting the fence. This case is distinguishable from DeMers in that the circuit court in the present case granted the motion to dismiss instead of allowing the case to proceed to its conclusion. We reverse the circuit court’s dismissal of the nuisance claim and remand for further proceedings.

Appellants next argue that the circuit court erred in establishing the boundary line in accordance with the survey conducted by Wade Spainhour, claiming that Spainhour did not follow accepted surveying procedures in the preparation of his survey. They also assert that the survey prepared for them by surveyor Shawn Blees was more accurate than the survey prepared by Spainhour.

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Bluebook (online)
386 S.W.3d 704, 2011 Ark. App. 720, 2011 WL 5971769, 2011 Ark. App. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-dale-e-betty-fogerty-joint-revocable-trust-arkctapp-2011.