MCENTIRE V. ROBINSON ( 1970 )

1122 MCENTIRE V. ROBINSON [247
J. L. McENTIRE, J. C. McENTIRE AND W. A.
McENTIRE v. CURTIS ROBINSON
5-5124 449 S. W. 2d 395Opinion delivered February 2, 1970
APPEAL & ERROR—RULING ON MOTION—DISCRETION OF TRIAL COURT,
ABUSE OF.—No abuse of discretion was shown by trial court's
refusal of appellant's motion requesting court's authority ior
appellant to conduct a survey upon appellee's land to confirm
the boundary established by court's decree and appellee's survey
since appellee was charged by the decree with responsibility of
moving his fence to the correct line prior to January 1, 1969,
since one of the appellants caused iron stakes indicating the
line established by appellee's survey to be placed in the ground,
and since appellants made no application to the court until
two and one-half months after the survey was made and then
failed to appear or show any cause why their motion should be
granted.
ARK.] MCENTIRE V. ROBINSON 1123
Appeal from Jefferson Chancery Court, Joseph
Morrison, Chancellor ; affirmed.
Brockman & Brockman, for appellants.
George Howard, Jr., for appellee.
JOHN A. FOGLEMAN, Justice. We remanded this case
to the chancery court with directions to determine the
boundary line dividing lands owned by appellants and
those owned by appellee. McEntire v. Robinson, 243
Ark. 701, 421 S. W. 2d 877. Pursuant to the mandate,
the chancery court entered a decree. It was based upon
an agreement between the parties that the line be estab-
lished 10 feet west of appellee's house and run at a right
angle to the north boundary line between the lands of the
respective parties. This decree directed that appellee
Robinson remove the fence then existing on or before
January 1, 1969, and relocate the same on the boundary
line fixed by the court pursuant to the agreement of the
parties. On February 21, 1969, appellants filed a motion
that the court authorize them to have a survey made, at
their expense, to verify a survey made by one E. A.
Jack Harris at the instance of appellee. The significance
of the motion lies in its allegation that appellants and
their surveyor should be authorized to enter upon ap-
pellee's lands for the purpose of making this survey.
Written notice of hearing on this motion at 3:00 p.m.
on February 24, 1969, was given appellee by appellants'
attorneys. At this hearing, the chancellor denied appel-
lants' motion. This appeal comes from the order of de-
niaL
Appellants' sole point for reversal is that the de-
nial of their motion was an abuse of discretion on the
part of the chancellor. We do not agree.
None of the appellants appeared when the motion
was called for hearing nor did they subsequently make
any appearance or offer any excuse for their non-ap-
1124 MCENTIRE v. ROBINSON [247
pearance. The hearing was not commenced until the
court had awaited their appearance for twenty minutes
after the hour specified. At the outset, the court called
upon appellants' attorney to proceed, as the moving
party, to offer evidence in support of the motion. When
he did not do so, the chancellor examined appellee, who
was subsequently cross-examined by appellants' attor-
ney and examined by his own attorney. Robinson testi-
fied that he employed Harris, the County Surveyor of
Lincoln County, to survey the line in accordance with
the court's decree. The reason he gave for employing
this surveyor was that he had been surveying for Mr.
McEntire' for about 25 years. According to Robinson,
when Harris came down to make the survey he sent
Harris to get McEntire and his son, and they went along
on the survey. He also stated that McEntire furnished
iron stakes and had his stepgrandson 2 put them down
after the line was run. These were placed in the ground
under the direction of McEntire, and Robinson said they
were still standing.
Appellant called Mr. John Harris Jones, one of the
attorneys for the McEntires, as a witness. Jones testi-
fied that he received a call from McEntire and Harris
on December 4, 1968, the date Robinson said the survey
was made. He talked to both on the same telephone call.
He related that he advised McEntire not to try to pre-
vent the survey because Robinson had a right to survey
his own boundary.
Since appellee was charged with responsibility of
moving his fence to the correct line prior to January
1, 1969, since one of the appellants caused iron stakes
indicating the line established by the Harris survey to
be placed in the ground, and since appellants made no
application to the court until two and one-half months
after the survey was made and then failed to appear
1 We are unable to say which of the appellants was being re-
ferred to in this testimony.
2This person is also referred to as McEntire's "grandson-in-
law."
ARK .] 1125
and show any cause why their motion should be granted,
there was no abuse of discretion on the part of the
chancellor.
This does not mean that appellants cannot cause
whatever survey they desire to be made at their own
expense, so long as it is done without trespass on the
lands of the appellee, or that the line established by the
Harris survey i s necessarily correct.
The decree is affirmed.