NOT FOR PUBLICATIONDIVISION IV

JUDGE OLLY NEAL

ARKANSAS COURT OF APPEALS

CA00-1428

October 24, 2001

KEITH COOK AND

GLENNA HUDSON AN APPEAL FROM PULASKI COUNTY

APPELLANTS CHANCERY COURT

NO. 79-3056

V.

HONORABLE ELLEN BRANTLEY,

RIVER VALLEY LAND, INC. CHANCELLOR

APPELLEE

DISMISSED

This case presents the question of whether the chancellor erred in reforming a 1986 commissioner's deed. Because the order from which this appeal has been taken was not a final, appealable order, we have no choice but to dismiss this appeal.

This is a second appeal to this court of a case involving a long-standing family dispute over the use of a fifty-six-acre tract of land in Pulaski County. C.R. Hudson, Sr., and his wife, Julia Ann Hudson, owned this land, which was used for the operation of a marina and for agricultural purposes. In 1973, they gave a ninety-nine-year lease of the property to appellee River Valley Land, Inc. This lease referred to the property as it was represented in an attached map. Their son, C.R. Hudson, Jr., is now River Valley's owner. In 1977, the elder Hudson and his wife were divorced. The chancellor ordered their property sold and the proceeds divided. In the late 1970's, C.R. Hudson, Sr., and his son became estranged and ceased farming together. River Valley and the elder Hudson then became involved in this action, which wasfiled in 1979 and consolidated with the divorce case, over the validity of River Valley's lease. The chancellor held that the lease was valid, and the elder Hudson appealed that decision, along with other issues arising out of the divorce proceeding. We affirmed the chancellor's holding that the lease was valid on May 23, 1984.

The chancellor set a public sale of the property in dispute and, in 1986, the elder Hudson's second wife, appellant Glenna Hudson, purchased the land at that sale. The commissioner's deed stated that it conveyed to her all of the "right, title, interest or claim, either in law or equity," of J.A. Hudson, C.R. Hudson, Sr., C.R. Hudson, Jr., and River Valley in the property.

Throughout the dispute, River Valley continued to pay rent and operate the marina and the elder Hudson continued to farm the portion of the tract not used by the marina. In later years, the elder Hudson ceased farming and appellant Keith Cook began farming that land as a tenant of Glenna Hudson. Trouble arose after River Valley obtained a permit from the Army Corps of Engineers to expand the marina and began building a road at the base of the levee on land that appellants claimed they had always used as farmland. Appellant Cook and C. R. Hudson, Jr., got into a dispute and guns were drawn.

Appellants filed a complaint to intervene in this ongoing action between River Valley and C.R. Hudson, Sr. in 1999, alleging that the commissioner's deed had terminated River Valley's interest in the lease; that appellants had adversely possessed the portion of the land on which they had farmed; that River Valley had breached the lease by building the road; and that this breach was sufficiently material to terminate the lease. River Valley took the position that the commissioner's deed had purported to convey its leasehold interest in the property in error. Trial was held in June 2000.

In a decision entered on July 5, 2000, the chancellor denied appellants' claim for adverse possession. She found that River Valley had breached the lease by building the road at the base of the levee, but held that the breach was not material because River Valley had merely expanded a previous passageway. The chancellor found that the language in the commissioner's deed purporting to convey River Valley's interest in the property was a mistake and reformed it to reflect that the deed is subject to the lease. She also found that the lease was valid, but construed it as permitting appellants to farm up to the base of the levee road. The chancellor gave River Valley ninety days to restore the land to the condition it was in before the road was built or to seek and receive permission to make the changes on the property. She stated that if the lessor denied such permission, and River Valley believed the denial to be unreasonable, River Valley must institute an action to obtain permission for the changes.

Appellants argue that the chancellor erred in reforming the commissioner's deed; in failing to apply the doctrines of unclean hands and laches to River Valley; and in finding that River Valley's breach of the lease was not material. On cross-appeal, River Valley argues that the chancellor erred in reforming the boundary of the leasehold estate and in finding that it breached the lease. We cannot, however, address these arguments.

For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Haase v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). See Ark. R. App. P. - Civ. 2(a). The order must be of such a nature as to not only decide the rights of the parties but also put the court's directive into execution, ending the litigation or a separable part of it. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). Where the order in question involves a disputed property line,as in the present case, the chancery court's decree must describe the boundary line with sufficient specificity that it may be identified solely by reference to the decree. Id.

Here, the chancellor reformed the commissioner's deed to reflect that it is subject to the lease and construed the lease as having a boundary at the base of the levee road. The lease, however, does not describe the leasehold estate. At trial, an extremely confusing map that was said to be like the map originally attached to the lease was introduced into evidence. This map does not reflect a survey. At trial, John Tweedle, a surveyor, testified that the map could not be accurately tied to a survey. It is clear that the boundary of the leased property cannot be ascertained by reference to the map. Therefore, the decree does not describe the disputed boundary with sufficient specificity.

Also, the decree contemplates further action by the parties. In paragraph six, the chancellor directed appellee to restore the land to its condition before the road was built, or to seek and receive permission to make changes on the leased property, within ninety days. She added that, if permission is denied, and appellee contends that such denial is unreasonable, appellee must institute an action to obtain permission for the changes. An order that contemplates further action by a party or the court is not a final, appealable order. Wynne v. State, 345 Ark. 536, 49 S.W.3d 100 (2001). Additionally, an order granting alternative relief at the election of one of the parties is not appealable. Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987).

For these reasons, we have no choice but to conclude that the chancellor's decision is not a final, appealable order and to dismiss this appeal without prejudice.

Dismissed.

Pittman and Vaught, JJ., agree.