McEntire v. Robinson , 243 Ark. 701 ( 1967 )

Lyle Brown, Justice.

Appellants, J. L., J. C., and W. A. McEntire brought this suit against their adjoining neighbor, appellee Curtis Robinson, to establish the boundary line between the parties. The McEntires claimed title up to a line fixed by the county surveyor; Robinson claimed title by adverse possession up to a fence line. "When all the litigants completed their testimony the chancellor ruled that the McEntires’ complaint should bo dismissed for their failure to meet the burden of proof. 'That ruling left the location of the boundary line undetermined. The McEntires assert on appeal that the boundary line issue was squarely raised by the pleadings and proof on the issues was submitted; therefore, say the McEntires, it became the duty of the chancellor to establish the boundary.

The Pleadings. The McEntires alleged record title to the west half of the involved forty-acre tract. Robinson, their neighbor on the east, was charged with encroaching on the McEntires’ land by running a north- and-soúth fence some twenty feet west of the true line. They alleged the fence to have been built within the last few years. They asked the court to fix the boundary as determined by the county surveyor and to order Robinson’s fence removed.

Curtis Robinson answered by claiming title to the disputed strip by adverse possession. He asserted that the fence line had been established with the consent and approval of the McEntires and pleaded estoppel. Robinson asked that plaintiffs’ complaint “be dismissed for ■want of equity and for any and all other proper relief. ’ ’

The Evidence. The McEntires produced two surveyors and six other persons as witnesses. Their testimony was directed to the survey line and their allegation that the fence was not erected by Robinson until 1962. The McEntires testified that the fence was erected without their knowledge or permission.

Curtis Robinson produced seven witnesses. Their testimony centered around these contentions: Robinson lived in a house' on his property since 1944; the house was there as far back as 1909 and had since been enlarged north and south; the McEntire survey line ran through the center of the house; a survey was made in 1957 and that line ran some eight steps west of Robinson’s house; Robinson built the fence in 1957; the shrubs on Robinson’s side of the fence were first'planted in 1944; in 1956 J. L. McEntire and Robinson worked out a line after a survey and the following year the fence was placed on that line; for many years before the fence was erected the parties cultivated up to that line.

The Chancellor’s Findings. The formal recorded order contained this single finding: “1. That the plaintiffs’ Complaint should'be dismissed with prejudice.” That statement was followed by formal words of dismissal with prejudice. However, at the conclusion of the trial the chancellor pronounced orally his findings. They were recorded and styled “Court’s Ruling.” The evidence on both sides was reviewed and the conclusion reached that the testimony was “as opposite as the poles.” The chancellor concluded with this statement: “In view of the fact that the present survey divides the house in which the defendant has been living since 1944 and in view of the fact that all of his improvements have been made since he acquired this property and sét out trees and one thing and another,_I can’t see anything other than that the plaintiff has failed to meet the burden of proof and therefore the complaint will be dismissed. ’ ’

The pleadings clearly placed before the court the respective theories of the adjoining owners with regard to a boundary line. Plaintiffs and defendant certainly understood the respective contentions. There were no objections to the pleadings. Proof was pointedly directed toward each allegation. In that situation it was incumbent on the trial court to fully adjudicate those issues pleaded and litigated.

In Mandel v. Peet, Simms & Co., 18 Ark. 236 (1856), the trial court sustained a demurrer to nine pleas in abatement and entered a final judgment. This court held the entry of the judgment to be in error because there remained an issue in the case not affected by the ruling on the demurrer. Hollis v. Moore, 25 Ark. 105 (1867), was a suit in trespass. The defendant made three separate pleas of defense. Judgment was entered for the plaintiff without defendant’s pleas being resolved. For that error the case was reversed and remanded.

In the last century our own trial courts have evidently been careful to avoid the pitfalls reflected in Mcmdel and Hollis; otherwise we assume later citations would have been called to our attention. The rule in those cases is sound because it discourages piecemeal litigation. Particularly when a controversy as to possession of real property is in issue and can be concluded in one action, that should be done. Bobinson was required by statute to plead his defenses. Ark. Stat. Ann. § 27-1121 (Bepl. 1962). Logically, those defenses should be resolved.

We agree with appellants’ first point, namely, that “the issue of the boundary line location was squarely raised by the complaint and answer,” and should have been resolved. By their second point, the McEntires ask us to hold that the evidence preponderates in their favor. This we cannot do, for the simple reason that the trial court did not resolve the issues of adverse possession and estoppel.

The cause is reversed and remanded with directions to the trial court to fix the boundary line with such certainty that it can be identified by reference to the decree.