Whittenburg v. Moody

2015 Ark. App. 464, 468 S.W.3d 786, 2015 Ark. App. LEXIS 555
CourtCourt of Appeals of Arkansas
DecidedSeptember 9, 2015
DocketCV-14-710
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 464 (Whittenburg v. Moody) 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
Whittenburg v. Moody, 2015 Ark. App. 464, 468 S.W.3d 786, 2015 Ark. App. LEXIS 555 (Ark. Ct. App. 2015).

Opinion

KENNETH S. HIXSON, Judge

_J_jThis case involves a boundary-line dispute between appellant William R. Whit-tenburg and appellees John and Sandra Moody, who own adjoining property in Prairie County. The Moody property consists of fifteen acres and the Whittenburg property, described in his deed as two contiguous 330 x 330 foot tracts consisting of a total of five acres, lies directly to the east of the Moody property. After Mr. Whittenburg had allegedly encroached onto the Moody property and attempted to claim a portion thereof, the Moodys filed a complaint for ejectment, requesting that Mr. Whittenburg be enjoined from entering their property. In Mr. Whittenburg’s answer, he raised various defenses including laches and adverse possession.

After a bench trial, the trial court entered an order of ejectment, finding the disputed area to be owned by the Moodys and ordering Mr. Whittenburg to remove himself and his ^possessions from the Moody property. Mr. Whittenburg now appeals, and he raises numerous arguments for reversal. We affirm.

The Moodys acquired their property in 1979. Mr. Whittenburg bought his property in a foreclosure sale in March 2008, and it is undisputed that after purchasing the property Mr. Whittenburg began clearing and maintaining up to an old dilapidated fence running approximately north to south. Based on a survey obtained by the Moodys four years earlier in 2004, the Moodys advised Mr. Whitten-burg that the old dilapidated fence line (hereinafter referred to as “the old fence line”) was on their property and that Mr. Whittenburg was significantly encroaching across the parties’ boundary and onto the Moodys’ land. Mr. Whittenburg persisted in claiming up to the old fence line, and the Moodys filed their lawsuit in July 2010.

Mr. Moody testified that, at the time they acquired their property in 1979, there were “lots of fence lines, cross fences, and things of that nature.” Mr. Moody said that none of the fences had been maintained. After the property was surveyed by David Hamilton in 2004, iron markers and PVC pipes were placed on the corners of the Moody property. According to Mr. Moody, he spoke with appellant’s immediate predecessors in title, Mark and Holly Webb, and showed them the 2004 survey line and corner markers during the time the Webbs owned the adjacent land between 2005 and 2007. The 2004 survey line was significantly east of the old fence line. Both Mark Webb and Holly Webb testified that they agreed to the 2004 survey line and never claimed or maintained the disputed property between the 2004 survey line and the old fence line. Also, Mr. Moody stated there is an old metal barn that is | ..¡forty-nine feet in length. Approximately forty feet of the old metal barn is located on the Webb/(now) Whit-tenburg property and approximately nine feet of the metal barn crosses over the 2004 survey line and onto the Moody property. 1

David Hamilton, a licensed surveyor, testified without objection about the survey he performed in 2004. A copy of the survey was also admitted into evidence without objection.

In determining the location of the boundary between the properties at issue, Mr. Hamilton looked at the property descriptions in the Moodys’ 1979 deed as well as the deeds held by Mr. Whittenburg’s predecessors in title. While Mr. Hamilton obviously did not look at Mr. Whitten-burg’s deed at that time in 2004 because Mr. Whittenburg did not yet own the property, Mr. Hamilton asserted that the subsequent Whittenburg deed and the deeds from his predecessors in title contained the same legal descriptions.

On the 2004 survey, Mr. Hamilton denoted the existence of the old fence line. Mr. Hamilton determined that the old fence claimed by Mr. Whittenburg to be the property line was actually fifty-seven feet west of the parties’ boundary line on the south side and thirty-four feet west on the north side (the old fence line runs slightly from the northeast to the southwest instead of due north and south). Mr. Hamilton testified that there were numerous other fences on the properties and stated that none of them were in good shape or being maintained. He further stated that the old fence at issue was “pretty derelict” and that 14there was “about as much of it down as it was up.” Mr. Hamilton also testified that an old metal barn encroached over the Moody property line 9.8 feet on the northern end and 8.6 feet on the southern end. Mr. Hamilton further testified that there was another “small derelict frame building” that also encroached over onto the Moody property. Both buildings are shown on the 2004 survey.

Mr. Whittenburg introduced into evidence three prior deeds of his predecessors in title as well as his own deed. The initial deed dated 1975 contained a five-acre property description referencing an area 660 feet from north to south and 330 feet from east to west, but with no mention of a fence. However, the remaining deeds, dated 1985, 1992, and 2008 (appellant’s deed), showed the same metes-and-bounds description but indicated that both the north/south and east/west boundary lines of the property followed fences.

On cross-examination, Mr. Hamilton testified that there was no north/south fence on the western border of appellants’ property as indicated by the deeds. He acknowledged the presence of the old fence to the west, which was not upright and was not maintained, but concluded that it was not within a reasonable distance of the described boundary line in the deed of the appellant or the appellant’s predecessors in title.

Mr. Whittenburg testified that he believed the old fence line to be the boundary between the parties’ properties. Mr. Whittenburg said that, after buying the property in 2008, he maintained the property between the 2004 survey line up to the old fence line, and he further asserted that he was utilizing a septic tank on the disputed tract.

| HIn this appeal, Mr. Whitten-burg’s first argument is that the Moodys’ ejectment claim was barred by laches. Laches is an equitable doctrine that requires a detrimental change in position by one party and an unreasonable delay by the other party, and its application is a question of fact for the trial court based on the particular circumstances of each case. Adams v. Howard, 2014 Ark. App. 328, 436 S.W.3d 473. Mr. Whittenburg argues that he was prejudiced by the Moodys’ failure to bring their claim in a timely manner. Mr. 'Whittenburg asserts that, beginning in 1979 when they bought their property, the Moodys assented to the old fence being the boundary line, and that it was unreasonable for them to wait until 2010 to claim otherwise. Mr. Whittenburg further suggests that, if the Moodys wished to claim to the boundary line as indicated on the 2004 survey, they should have made that claim after the survey was completed. Under this point, Mr. Whittenburg also contends that the old fence line was a boundary line by acquiescence.

We agree with the trial court’s determination that laches did not bar the Moodys’ claim. Contrary to appellant’s argument, there was no evidence that the Moodys ever accepted the old fence line as the boundary between the properties, nor was there any evidence that any of Mr. Whit-tenburg’s predecessors in title maintained the property up to the fence or claimed its possession. In fact, there was testimony by Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'Neal v. Love
2017 Ark. App. 336 (Court of Appeals of Arkansas, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. App. 464, 468 S.W.3d 786, 2015 Ark. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittenburg-v-moody-arkctapp-2015.