ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

CLAY M. GOODSON and FLORENCE GOODSON,

APPELLANTS

V.

MARY CAROLYN GOODSON,

APPELLEE

CA00-647

MARCH 7, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. 98-10578,

HON. JOHN C. WARD, JUDGE

AFFIRMED IN PART; REVERSED IN PART

Clay Goodson and Florence Goodson, his wife, appeal the Pulaski County Circuit Court's judgment for ejectment and the court's order that they remove their fence from the land of Mary Carolyn Goodson, who was the plaintiff below and is Clay Goodson's sister. Appellants contend that the trial court clearly erred in finding (1) that the right of way of Goodson Road was eighty feet, (2) that appellee's east property line should be established using dimensions in a 1941 deed, and (3) that the survey by Laha Engineers, Inc., established the proper boundary line between the parties' respective parcels of land. Appellants also contest the trial court's award of attorney's fees to appellee. We affirm the court's order for the removal of the fence, but we reverse the award of attorney's fees.

We do not set aside findings of fact unless it is shown that they are clearly against the preponderance of the evidence. Stuttgart Elec. Co. v. Riceland Seed Co., 33 Ark. App. 108, 802 S.W.2d 484 (1991). We therefore examine the evidence that was before the trial court

regarding the width of Goodson Road, the establishment of appellee's east property line, and the boundary line between the parties' tracts.

The facts of this case are not in dispute. Appellants and appellee own adjoining tracts of land in western Pulaski County. The tracts were originally part of a larger, ten-acre tract, adjacent to old Highway 10, purchased in 1941 by Clay and Mary Goodson's parents, C. W. and O. Mary Goodson. Approximately five acres of the larger tract was sold to Jess Morgan, and approximately one acre was sold to Jack Goodson, another son of the senior Goodson. In January 1985 O. Mary Goodson, then a widow, deeded approximately one-half acre on the northeast corner of her remaining property to her daughter, appellee, and she deeded a parcel to two other sons, Cab Ward Goodson Jr. and Jack N. Goodson. In 1996 Cab and Jack Goodson, along with their wives, sold the property their mother had deeded them to appellant Clay Goodson.

There is no evidence that the property was surveyed prior to the senior Goodsons' purchase in 1941, and all subsequent deeds were made without the benefit of a survey. The legal description in the parents' 1941 deed fixed the northeast corner of the tract by starting at the southwest corner of the Northwest Quarter of Section 1, then proceeding 314 feet north, then east 1,438 feet to the west "right of way line of Highway 10." Sometime after 1941, Highway 10 was relocated, and the road upon which the tract was located became Goodson Road. Appellants and appellee's deeds each refer to "the west right-of-way of Goodson Road (old Highway 10)" in the metes-and-bounds descriptions.

After appellants purchased their property they had it surveyed by Donald Brooks, aregistered surveyor, to ascertain the boundary lines. They subsequently erected a fence sixty-eight inches from the back of appellee's house and around the perimeter of their property according to the Brooks survey. Appellee, believing that the fence encroached upon her property, hired Laha Engineers to survey her land.

Both surveyors noted that the dimensions for the north line of the property in the 1941 deed lacked approximately twenty-three feet from closing with the west right of way of Goodson Road. The Brooks survey assigned this twenty-three feet to appellants' property and placed the right of way of Goodson Road thirty feet from the road's centerline. The Laha survey, based on the 1941 deed dimension, assigned the twenty-three feet to appellee and placed the western edge of her property 153.3 feet west of the right of way of Goodson Road.

Because the parties' surveys were in conflict, the trial court, with the agreement of counsel, appointed Mr. Forrest Marlar, a registered engineer and surveyor, to report whether appellants' fence was on appellee's property. Among his observations were these:

7. Both surveyors evidently used 60 feet as the right of way width for Goodson Rd. and then proceeded to measure 30 feet from the centerline of the existing pavement to mark the right of way line.

8. The existing electric line along the West right of way line of Goodson Rd. measures approximately 40 feet from the road centerline.

9. A 1930 petition by Arkansas Highway Commission designated the portion of Highway 10 adjacent to the Goodson tracts as an 80 foot right of way and being measured 40 feet either way from centerline.

10. There are certain domestic plants and plantings together with an old abandoned water well which are located within the disputed area.

11. There is a 15 foot wide waterline easement lying west of and adjacent to the West right of way line of Goodson Rd. not shown on either survey.

12. There does not seem to be any indication of technical errors by either surveyor. Overall dimensions and bearings are in substantial agreement.

Marlar concluded that the Goodson Road right of way was eighty feet, putting the west line of appellants' property at that shown in the Laha plat. His conclusion was based upon the highway commission's 1930 designation, and on the location and existence of the plants and old well, indicating use of the tract by appellee. He also opined that the two surveyors, if following the respective legal descriptions provided, would, without regard to right-of-way location, almost certainly agree to the location of the west line of appellee's tract as shown on the Laha survey.

The trial court found that appellants' fence had been placed on appellee's property. The court's opinion included the following findings of fact:

4. The report and testimony of Mr. Marlar established that the survey of Mr. Laha, plaintiff's surveyor, fixed the parties' proper common boundary line, even though Marlar disagreed with the manner in which Laha had arrived at the line. Marlar stated the original deed to the parents established the location of the Highway 10 right of way in 1941, and "All subsequent deeds used dimensions relevant to the original deed . . . ."

5. Mr. Marlar stated that both surveyors had used 60 feet as the right of way for Goodson Road, but that the Highway 10 right of way was 80 feet, being measured 40 feet either way from the centerline . . . . Marlar concluded that " . . . the west line of the plaintiff's property belongs as provided for on the Laha plat."

6. . . . Mr. Marlar testified the establishment of plaintiff's east property line should be derived by referring to the 1941 deed, which clearly set the line by measuring 1,438 feet from the original northwest corner of the large tract.

7. The Court finds by a preponderance of the evidence, that the fence in question hasbeen placed by defendants on plaintiff's property. A key finding by Mr. Marlar is that there is an existing electric line along the west right of way line of Goodson Road which is 40 feet from the center line, indicating that the right of way line of Goodson Road is at least 10 feet beyond where defendants' surveyor began measuring. The fence in question is, therefore, at least 10 feet on plaintiff's property.

Appellants challenge the trial court's findings that the right of way of Goodson Road was forty feet from the centerline, that appellee's east property line was established by the 1941 deed, and that the Laha survey established the boundary line between the parties' properties. The trial court had before it conflicting surveys from the parties, and the court depended heavily upon the observations and conclusions of the court-appointed surveyor. In light of the well-reasoned findings of the trial court, and its reliance upon the report of the court-appointed surveyor, we cannot state that the above findings are clearly against a preponderance of the evidence. Therefore, we affirm those findings.

Attorney's Fees

The trial court ordered appellants to pay the court-appointed surveyor's charges of $1069.80. Appellee was awarded damages of $350 for the cost of her survey, $2600 "legal costs," and $500 charged by her attorney. Appellants contend on appeal that the court had no authority to award attorney's fees. We agree.

Attorney's fees are awarded only when expressly provided for by a statute or rule. Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998). Appellee argues that the fees were properly awarded under the authority of Ark. Code Ann. § 16-22-309(a)(1) (Repl. 1999), which allows fees in actions lacking justiciable issue. We note, however, that the subsection requires the trial court to find that there was "a complete absence of justiciable issue of eitherlaw or fact raised by the losing party or his attorney," and that no such finding was made in this case. The trial court cited no authority for awarding appellee attorney's fees, appellee cites no other statute or rule that would apply to this case, and our survey of Arkansas's trespass and ejectment statutes finds allowance only for costs and damages. See Ark. Code Ann. §§ 16-68-401, 16-68-404, 18-60-201, 18-60-207 (1987). Therefore, we reverse the award of attorney's fees.

Affirmed in part; reversed in part.

Stroud, C.J., and Vaught, J., agree.