NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

EN BANC

JOHN PARKER HEATHSCOTT AND HERMAN TAYLOR,

APPELLANTS

V.

VELMA MUCE. ALBERT CHAMBERS, NORMA AKLESTAD, LARRY C. BRYANT, DANA A. BRYANT, NATALIE L. BRYANT, SHARON ANN WILLIAMS, TOMMY JACK WILLIAMS, JOHNNY LEE WASHAM, ALINE TYREE and ELIZABETH BERNICE CESENA,

APPELLEES

CA00-1321

FEBRUARY 14, 2001

APPEAL FROM THE WHITE COUNTY CHANCERY COURT,

NO. E98-711-1,

HON. JIM HANNAH, JUDGE

Dissenting Opinion on Grant of Motion to Dismiss

SAM BIRD, Judge, dissenting. Appellants have filed a motion to dismiss their appeal, contending that the order appealed from is not final. They ask that we dismiss the appeal "without prejudice" and remand it to the trial court for "modification of the decree in accordance with the issues raised herein." They contend that the trial court's decree from which they desire to appeal lacks finality because it fails to "specifically set out legal descriptions and boundary lines of the property, or portions thereof, to which each appellee had title." As authority for his argument, appellants rely on Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), and the cases to which it refers.

I believe that the trial court's decree is final, that Petrus, supra, is distinguishable, and that we should deny appellants' motion to dismiss the appeal without prejudice. In the case at bar, appellants sought a determination by the chancellor that they, instead of adjacent

landowners, were the owners of a railroad right-of-way that had been abandoned. The chancellor held that the series of quitclaim deeds upon which appellants relied for their title did not vest title to the right-of-way in appellants because of a defect in the recording sequence of the quitclaim deeds, and, that because quitclaim deeds do not carry after-acquired title, appellants did not own the right of-way. The chancellor set out his findings in a letter opinion that contained a detailed metes-and-bounds description of the pertinent parts of the right-of-way. The letter opinion was incorporated by reference into the decree. In their present motion, appellants contend that the chancellor's decree is not final because it does not also contain descriptions of the lands of the adjacent landowners, including the portions of the right-of-way that the adjacent owners acquired as a result of the abandonment of the right-of-way, and they argue that Petrus requires that the decree include those descriptions as a prerequisite to its finality.

In Petrus, the trial court determined that the party claiming title to the abandoned railroad right-of-way had succeeded in acquiring title by adverse possession to a portion, but not all, of the right-of-way. However, the trial court's decree did not describe those portions of the right-of-way that had not been acquired by adverse possession and, therefore were owned by the adjacent owners. As a result of this deficiency, one could not discern from the decree what portions of the right-of-way the chancellor had determined had been acquired by adverse possession and what portions continued to belong to the adjacent owners. Therefore, the appellate court dismissed the appeal due to the lack of a final order pursuant to Ark. R. App. P.-- Civ.2(a) 1 and 2.

This is not the situation in the case for which appellants now seek dismissal. Here, the chancellor, after fully describing the right-of-way, decreed that appellants had been unsuccessful in proving that they had acquired title to any of it. There was no need for the decree to also describe the tracts of land owned by adjacent landowners, either before or after the right-of-way was abandoned, because it does not appear that the litigation involved any disputed boundary lines between the parcels of land owned by the adjacent landowners. Therefore, no purpose would be served, insofar as this litigation is concerned, by requiring the chancellor's decree to contain descriptions of the lands of adjacent landowners. For this reason, the chancellor's decree is final and appealable.

A majority of this court has voted to simply dismiss this appeal without prejudice, but, correctly I believe, without remanding the case to the trial court for modification of the decree. If appellants' motion had simply requested a dismissal of the appeal, I would agree that we should grant it. But where, as here, appellants have requested the dismissal of their appeal upon the invalid premise that the chancellor's decree is not final, and conditioned upon our remanding the matter to the trial court for modifications to the decree, I am aware of no authority or precedent that would permit us to simply dismiss the appeal without prejudice. I must inquire, what is the appeal being dismissed without prejudice to? Where the chancellor's decree is already final, and the chancellor refuses to modify it, will this court entertain another appeal by the appellants on the strength of a new notice of appeal that designates the chancellor's original decree, entered almost eleven months ago?

In my view, the only alternative we have is to deny appellants' motion and proceedto consider this appeal on its merits. If appellants no longer wish to go forward with their appeal, they should file an appropriate motion to dismiss it; but they should not be permitted to request a conditional dismissal on the erroneous premise that the chancellor's decree is not final. And we should not grant a dismissal without prejudice in the absence of some authority to do so.

I am authorized to say that Judge Jennings joins in this dissent.