DIVISION I

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

CA00-761

February 21, 2001

JOHN A. RYLES, ET AL. AN APPEAL FROM PULASKI COUNTY

APPELLANT CHANCERY COURT [QT97-24]

V. HON. COLLINS KILGORE, JUDGE

JAMES ROBERT ALEXANDER, ET AL. REVERSED AND REMANDED

APPELLEE

Appellants,1 the Ryles Group, sued to quiet title to certain real property they acquired pursuant to tax deeds from the Commissioner of State Lands (Commissioner). The suit alleged that appellants had title to real estate known as Fourche Island superior to title held by appellees,2 M.R. Properties and McNutt/Walls. Following a hearing, the chancellorentered an order that rendered the tax deeds void and quieted title to appellees. We dismissed an appeal by appellants from that decision because the order was not final.3 The chancellor then entered a revised decree that resolved all pending claims between the parties. Now appellants argue that the chancellor erred in granting appellees' motion for summary judgment and erred in denying their motion for summary judgment. We agree that genuine issues of material fact remain that render a summary judgment award inappropriate. We do not reach appellees' alternative arguments regarding validity of appellants' deed.

This case presents material facts that are largely undisputed yet somewhat complicated. On January 2, 1997, appellants filed suit to quiet title in property they acquired through tax deeds issued by the Commissioner, asserting they had title in fee simple to certain real property located in the Arkansas River known as Fourche Island4 by virtue of alimited warranty deed. Appellees McNutt/Walls subsequently filed a motion to dismiss, alleging that they held title to a part of the property claimed by appellants through a warranty deed issued by Ann Campbell Payne and Hoyt Payne on January 28, 1992. McNutt/Walls further alleged that at the time they purchased the property all property taxes were paid in full, and that they had paid all subsequent tax levies.

Appellee M.R. Properties also filed a motion to dismiss, stating that appellants did not hold title to land it acquired in a special warranty deed executed on September 24, 1994, by Helen Elizabeth Kilgallon and her husband, Joe Kilgallon and by Marie Annette Stagmer and her husband, Robert A. Stagmer. Appellants amended their complaint and alleged that although appellees might have an interest in the property, appellants' interest was superior because appellants acquired their deeds through the Commissioner, who bestowed actual title and full possession. Appellees McNutt/Walls moved for summary judgment, stating that their warranty deed conveyed the property and that all property taxes had been paid in full for the last fifteen years. Receipts from the Pulaski County Collectors' Office were attached as an exhibit.

M.R. Properties requested the court to consider its motion to dismiss as a motion for summary judgment. In support of the motion, M.R. Properties asserted that appellantsreceived their deed as part of a tax sale and not as a result of the sale of an island.5 Appellees also produced documents that included a 1906 deed, which included a description of the land as "Township 1 S., Range 11 W., as follows: the southwest quarter of section 13, the southeast quarter of section 14, the northeast quarter of section 23 east of the present river channel, the north half of the southwest quarter of section 24, and that part of the northwest quarter of section 24 formerly west of and adjoining the river with accretions to any part of said land."

In response, appellants argued that the issue before the court rested squarely on superior title. They asserted that the legal description of the land claimed by appellees was different from the legal description conveyed to them and that the boundaries conveyed to appellees stopped at the east bank of the River. Also, they argued that their exhibits andproof showed that Fourche Island had always been to the west of the east bank of the Arkansas River. Appellants asserted that appellees failed to adequately demonstrate a chain of title. As proof of their argument, appellants included a chain of title beginning with a 1925 conveyance from the Commissioner to Mrs. M.E. Hope, and affidavits from Robert D. Holloway and Travis N. Bailey.

Holloway, a registered professional land surveyor and professional engineer, stated in his affidavit that on April 20, 1925, the Commissioner took steps to establish that Fourche Island was an island formed in the Arkansas River. He stated that a predecessor island existed as early as 1838, but changed its shape and location between 1838 and 1925, when Fourche Island was officially established. Holloway stated that after 1925 there was persistent shifting of soils around the entire perimeter of Fourche Island, with accretion of soil proceeding predominantly from the east and north shore of Fourche Island to the left high bank, located on the east side of the old Arkansas River Channel (the East Bank). According to Holloway, the accretions reached a point close to the East Bank, but were separated from the East Bank by a drainage channel.

Travis N. Bailey, executive vice president of Beach Abstract & Guaranty Company, also provided an affidavit for appellants. Bailey testified that he found eight deeds of record in Pulaski County to Fourche Island, beginning with the 1925 deed from the Commissioner to Hope.

The parties stipulated the following facts as true: 1) that M.R. Properties purchased land by a Special Warranty Deed from Marie Annette Stagmer and Helen Elizabeth Kilgallon on September 23, 1994; 2) that McNutt/Walls purchased property by Warranty Deed from Ann Campbell Payne and Hoyt Payne on January 28, 1992; 3) that the State issued a Limited Warranty Deed to appellants on February 2, 1996; 4) that the State issued a Correction Deed to appellants on July 2, 1996; 5) that certain property described in the Correction Deed overlapped property described in the Special Warranty deed issued to M.R. Properties and the Warranty Deed issued to McNutt/Walls; 6) that in 1979 the Pulaski County Tax Collector certified that the taxes on the land claimed by appellants was delinquent; 7) that appellees and their predecessors in title regularly and timely paid all of their property taxes; 8) that appellees did not receive actual notice from the Commissioner of State Lands prior to the sale of the property to appellants; and 9) that appellants' line of title originated with the State's issuance of a deed to Mrs. M.E. Hope on May 7, 1925, which was filed for record on May 28, 1928.

On November 19, 1998, the chancellor entered an order granting appellees' renewed motion for summary judgment. In his order, the chancellor found that the parties stipulated that appellant's title originated in a deed dated May 7, 1925, and filed of record on May 28, 1928. He also found that appellees entered into evidence an exhibit that demonstrated that their title to the property originated in 1906. After finding that Arkansas Code Annotated section 22-6-202 applies to islands formed in navigable streams and not within the boundary lines of former owners, the chancellor granted appellees's motion for summary judgment and denied appellant's motion for summary judgment.

The chancellor entered a judgment that rendered the Limited Warranty Deed and Correction Deed issued to appellants by the Land Commissioner void. The judgment also quieted title to all property described in Instrument No. 94-72257 in appellee M.R. Properties, and quieted title to property described in Instrument No. 92-07378 in appellees Thomas McNutt, Diane McNutt, William W. Walls, and Allene Walls.6 Following our dismissal of the first appeal, the chancellor entered a second revised decree, which resolved all claims between the parties.7 This appeal flows from the second revised decree.

Appellants argue that the chancellor erred in granting appellees's renewed motion for summary judgment. The crux of their argument is that the property at issue is island property, and therefore the only valid chain of title is the title that originated from the State in 1925. We agree that a genuine issue of material fact exists as to whether Fourche Island property that is common to both deeds formed by accretion to the east bank of the Arkansas River and whether appellees' 1906 deed is a wild deed.

Standard of Review

On a summary judgment appeal, we limit our review to the pleadings, affidavits, and other supporting documents filed by the parties in support of their arguments. See Earp v. Benton Fire Dep't, 52 Ark. App. 66, 914 S.W.2d 781 (1996). We review all evidence in the light most favorable to the non-moving party, and will reverse the trial court only when we determine that a material question of fact remains. See Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). We need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion did not answer a material question of fact. See Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000).

Superiority of Title

Arkansas Code Annotated section 22-6-202 (Repl. 1997) provides that "all islands formed or which may form in the navigable waters of this State are declared to be the property of the State, except as provided in section 22-6-204, and subject to sale and disposition in the manner and form provided in this sub-chapter." Also, section 22-5-403 mandates that "all land which has formed or may form in the navigable waters of this state, and within the original boundaries of a former owner of land upon such waters, shall belong to and the title thereto shall vest in the former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of the former owner therein." See Ark. Code Ann. § 22-5-403 (Repl. 1997).

In Ward v. Harwood, 239 Ark. 71, 387 S.W.2d 319 (1965), our supreme court heldthat it should reconcile Act 282 of 1917, codified at Arkansas Code Annotated section 22-6-202, which mandates that all islands formed in navigable streams belong to the State with Act 127 of 1901, codified at Arkansas Code Annotated section 22-5-403, which provides that land washed away by a stream and reformed as an island within the original boundary belongs to the former owner and not the State in order to permit both statues to stand. See Ward, supra. After stating the principle that repeals by implication are not favored, the Ward court reasoned that because the statutes concerned the same general subject and because the later statute did not include an express provision that it repealed Act 127, it should construe both statutes together to give full force and effect to each. It then interpreted Act 282 as only applying to islands formed within navigable streams that are not within the boundary lines of former owners. See Ward, supra.

Appellants argue that Ward was not applicable to the facts before the chancellor. We decline to address whether the chancellor properly applied Ward. Instead, we hold that genuine issues of material facts exist that render an application of Ward premature and an award of summary judgment inappropriate.

Appellees bore the burden of proving, based on the pleadings, discovery responses, admissions, and any submitted affidavits, that no genuine issues of material fact existed for the trial court to resolve. We note that the parties stipulated that certain portions of the land described in the tax deeds issued to appellants overlapped land described in deeds conveyed to appellees. Appellees offered several documents, including a 1906 deed, in support of their contention that the property claimed by appellants overlapped their property. However,appellant countered that Fourche Island has always been to the west of the east bank of the river, and offered the affidavit of Robert Holloway, which stated Fourche Island was officially established in 1925, and that Fourche Island was an island formed in the Arkansas River. Holloway's affidavit also stated:

since 1925 there has been the persistent shifting of soils around the entire perimeter of Fourche Island. Accretion of soil has proceeded predominantly from the east and north shore of Fourche Island towards the left high bank, which is on the east side of the old Arkansas River Channel (the East Bank). In some places, the accretions have reached a point which is close to the East Bank, but separated from the East Bank by a drainage channel from the upland drainage area through Old River Lake and high water flows from the Arkansas River. The accretions may have reached the East Bank at the north end past the outlet from the Old River Lake where title is not in dispute.

Thus, a genuine question of fact exists as to whether Fourche Island actually formed within the boundaries of the property owned by appellees.

We also hold that a genuine issue of fact exists concerning appellees' chain of title. The parties stipulated that appellants' line of title to the property originated in 1925, when the State issued a deed to Ms. M.E. Hope. The chancellor was presented with documents, including a 1906 deed, as proof by appellees that they held title to the property earlier than 1925. However, the record does not demonstrate that appellees adequately established a chain of title dating back to issuance by a sovereign. Thus, appellant's assertion that they have a superior claim of title because appellees' title "begins out of nowhere and winds up conveying nothing," presents a genuine issue of fact.

Reversed and remanded.

Robbins and Neal, JJ., agree.

1 The appellants are John A. Ryles, John R. Larrison, and Guy Maris Trust (collectively, the "Ryles Group").

2 The appellees in this appeal consist of Wayne Riffle and Charles Mitchell, doing business as M.R. Properties; and Thomas McNutt, Diane McNutt, William Walls, and Allene Walls. The rest of the named appellees are no longer involved. James Robert Alexander and Virginia Alexander Family Limited Partnership was adjudged by separate orders of the trial court to have no interest in the property. The claims of the other appellees who are no longer involved were dismissed by order of the trial court entered on April 18, 2000.

3 See Ryles v. Alexander, CA99-632, slip op. at ___ (Ark. App. March, 2000).

4 The property is described as follows:

Part of Sections 2, 11, 12, 13, 14, 23 and 24, Township 1 South, Range 11 West, Pulaski County, Arkansas, lying West of Willow Bank of Arkansas River per Corp of Engineers Map #5 dated April 24, 1920, File F5-6, Dr 7, and East of the easterly bank of Arkansas River as of August 23, 1996, being more particularly described as follows:

Beginning at a point which is the intersection of said Willow Bank of Arkansas River and the easterly bank of Arkansas River as of August 23, 1996; said point being 1300 feet North and 800 feet east of the Southwest corner of Section 24, Township 1 South, Range 11 West; thence meandering Northerly along the said Willow Bank of the Arkansas River 15,900 feet, more or less, to the easterly bank of Arkansas River as of August 23, 1996, thence meandering southerly and along the East bank of Arkansas River as of August 23, 1996, 17,500 feet, more or less, to the point of beginning.

AND

That part of the NW1/4 Section 19, Township 1 South, Range 10 West, Pulaski County, Arkansas, lying North and West of Old River Lake (Georgetown Lake) as per Corp of Engineers Map #5 dated April 24, 1920, File F5-6 Dr. 7.

5 Appellees McNutt/Walls adopted and incorporated the pleadings filed by M.R. Properties, including third party complaints, motions for summary judgment, and the amended and substituted answer. Appellee M.R. Properties argued that there was only one area of land involved, which was demonstrated by the Tax Assessor's depiction of the property. Appellee asserted that, as a result, the Commissioner's deeds involved a single parcel of land that was double-taxed. M.R. Properties argued that the tax sale was premised on taxes being unpaid for the tax years 1978 through 1994, and that its exhibit of certified copies of tax payment receipts clearly established that taxes were paid for 1978 through 1995. Appellee maintained that the tax sale was void as a result. It also asserted that the deeds were void for lack of notice, and pointed the court to the deposition testimony of Lincoln, counsel to the Commissioner of State Lands, who testified that "all parties with a recorded interest on the property being sold were entitled or by statute are entitled to notice of sale." Lincoln also testified that the special warranty deed to appellee M.R. Properties was of record, and that M.R. Properties predecessors in title were of record as well. She further acknowledged that M.R. Properties' address was readily ascertainable at the time of the tax sale, and admitted that M.R. Properties did not receive notice of the tax sale to appellants. Because we hold that genuine issues of material facts remain, we do not address appellees' alternative argument regarding the validity of appellants' deeds.

6 This judgment was revised on December 17, 1998. The language in the revised judgment denied motions for summary judgment pending against third-party defendants and granted a cross-motion for summary judgment against third-party plaintiffs. It also dismissed a third-party complaint.

7 The revised decree found that the limited warranty deed issued by the State and the Correction Deed issued by the State were void. It then quieted title to property described in Instrument No. 94-72257 in appellee M.R. Properties, and quieted title to property described in Instrument No. 92-07378 in appellee McNutt/Walls. The order denied motions for summary judgment against third-party defendants and granted cross motions for summary judgment against third-party plaintiffs. It dismissed the third-party complaint, and dismissed with prejudice the claims of eleven answering defendants, and the claims of four defaulting defendants. The order then found that a portion of the property, described as Section 19 property, was no longer involved in the suit because of an agreed settlement that was approved by the court. It then dismissed all claims with respect to Section 19 property with prejudice.