ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA01-382

October 31, 2001

JOE LYNN EDWARDS, ET AL. AN APPEAL FROM GARLAND COUNTY

APPELLANTS CHANCERY COURT [97-455]

V. HON. DAVID B. SWITZER,

CHANCELLOR

JAMES J. DICKEY, SR., ET AL.

APPELLEES APPEAL DISMISSED

This boundary dispute concerns property located north and south of Meyers Creek in Garland County. Appellant Joe Lynn Edwards and appellee James J. Dickey, Sr., own adjacent property separated by fence lines, two bluffs, and a creek.

On March 23, 1997, appellant noticed that appellee was removing fences along appellee's northern border. He subsequently petitioned the Garland County Chancery court for a temporary restraining order, temporary and permanent declaratory relief, and injunctive relief plus damages.1 Appellee counterclaimed, stating he owned the property at issue. Asproof, he attached a survey of his property that depicted the northern boundary. Appellee stated that appellant erected a fence on the south side of his property, which eliminated his access to Meyers Creek. Appellee requested that the court enter a temporary and permanent restraining order directing appellant to remove the fence and enjoining appellant from erecting another fence on the property.2

A final hearing was held March 25, 1998. In making his ruling, the chancellor stated:

First, it'll be the finding of the Court that the disputed area referred to here as number 1, that the parties have now attained a boundary by acquiescence. . . . As to disputed area number 2, the fifty foot of fence is to come down. The line is to be in a straight line running along the north two degrees, fifty-one minutes, forty-eight seconds. . . to a point where it intersects with the south bank of Meyers Creek.

(Emphasis added.) In an order dated March 4, 1999, the chancellor found a boundary by acquiescence between the parties' properties on the bow of Meyers Creek. He described the boundary as follows:

In the NW 1/4 SW 1/4, Section 26, Township 3 South, Range 22 West, Garland County, Arkansas, Commence at the Southwest Corner of said NW 1/4 SW 1/4, being a cotton picker spindle in the pavement of Caddo Gap Road; thence N 01 degrees 37' 00" E, along the west line of said NW 1/4 SW 1/4, 1085.69 feet to a 2" aluminum cap set by Steve Hankins RLS #1013; thence N 76 degrees 26' 37" E, 329.86 feet to a point on the South bank of Meyers Creek and the point of beginning; thence S 63 degrees 36' 10" E 81.92 feet; thence S 68 degrees 23' 18" E 28.47 feet; thence 68 degrees 46' 34" E 67.60 feet; thence S 42 degrees 03' 13" E 17.06 feet; thence S 63 degrees 33' 11" East 139.84 feet to the point of ending.

Additionally, the chancellor ordered appellant to remove, at his own expense, a fenceerected by appellants that was located on the northeast portion of appellee's property. The chancellor also quieted all property south of Meyers Creek on the northeast portion of appellee's property to appellee.

After appellee used self help to remove approximately 200-feet of fencing located between the two parcels of land, appellant filed a motion for contempt dated May 26, 1999, which requested that the chancellor order appellee to restore a portion of the fencing that appellee removed. In response, appellee stated that he used self help only after appellant failed to immediately remove the fence as ordered by the court. He also filed a motion for contempt, based on appellant's failure to abide by the court order.

The chancellor corresponded with the parties in a letter opinion dated November 3, 1999, in which he stated as follows:

I am enclosing a copy of the transcript of my ruling from the hearing on March 25, 1998[.] After having reviewed the ruling, with the benefit of Exhibit 12, and having viewed the property, I believe the ruling as to disputed area number 2 couldn't get much clearer. There is a call for distance to the intersection of the south bank of Meyers Creek. Disputed area number 1, I had understood, was not a problem, but it too is addressed in the ruling. It appears the south bank of Meyers Creek was to be the north boundary of [appellee's] property.

(Emphasis added.) In an order entered April 5, 2000, the chancellor denied the petition and the counter-petition. The chancellor again stated that the south bank of Meyers Creek represented the north boundary of appellee's property, and prohibited appellant from constructing a fence on the property.

On April 25, 2000, appellant filed an ex parte petition for contempt and temporary and permanent injunctive relief. In his petition, appellant asserted that appellee continuedto remove fencing that ran several hundred feet along the south bank of the creek. Appellant contended that this fencing was lawfully in place and never ordered to be removed by the chancellor. The petition was granted by the chancellor, and appellee was enjoined from further action.

On August 22, 2000, appellant filed a petition for clarification of the chancellor's previous rulings. Specifically, appellant sought clarification as to whether the court heard evidence regarding the overall boundary line between the two parcels rather than the two affected areas on the south bank of Meyers Creek. Appellant contended that the court ruled that a fence line, rather than the south bank of Meyers Creek, represented a boundary by acquiescence between the two parcels of land. In response, appellee argued that appellant was attempting to ask the court to modify, rather than clarify, its previous findings. Appellee urged that because more than ninety days had lapsed between the entry of the last order and the filing of appellant's petition, the court lacked jurisdiction to grant appellant's request.

The court entered an order regarding appellant's petition for clarification on September 19, 2000. Appellee filed a motion to modify the September 19, 2000, order, on October 13, 2000, alleging that the order contained typographical errors. The court granted the motion and entered a modified order on October 25, 2000.

Appellee filed a second motion for modification on October 25, 2000, requesting that the court (1) correct typographical mistakes in the legal description regarding the location of the fence in the bow area in its September 19, 2000 order and, (2) modify its September 19, 2000 order and its October 25, 2000 modified order to reflect the court's April 5, 2000,ruling that the south bank of Meyers Creek constituted the north boundary of appellee's property other than that portion of the fence previously ruled upon.

A hearing occurred on December 11, 2000, in which appellant insisted that the chancellor found that a fence line, not the south bank, was the boundary that separated the properties. The chancellor reiterated that he found the north boundary of appellee's property to be the south boundary of the creek in his original March 1999 order, and in all subsequent orders. Following the hearing, the chancellor entered an order that set aside his September 19, 2000 order and his October 25, 2000 modified order. He then reaffirmed his previous findings that (1) the fence line located in the bow of Meyers Creek was the boundary line between the parties by acquiescence,3 (2) at all points between the parties other than the fence line located in the bow area, the south bank of Meyers Creek was to be the boundary between the parties, and (3) appellant should remove any fence that existed on the described property and that prohibited appellant from constructing any fencing on appellee's property in the future. It is from this order that the present appeal arises.

The parties agree with the chancellor's finding that the fence in the bow arearepresented a boundary by acquiescence so this issue is not challenged on appeal. However, appellant contends that (1) the chancellor's finding that the southern edge of Meyers Creek was the boundary between the properties was not supported by substantial evidence and, (2) the chancellor's December 11, 2000 order was deficient because the creek's stability as a landmark was not supported by substantial evidence. In response, appellee raises two jurisdictional issues. First, he contends that appellant's arguments are based on the court's original March 1999 order, which appellant failed to timely appeal pursuant to Rule 4 of our Rules of Appellate Procedure-Civil. Next, he argues that the chancellor lost jurisdiction to modify his original order after ninety days. We agree with appellee's first argument. Therefore, we do not address his argument regarding modification.

Rule 4(a) of our Rules of Appellate Procedure - Civil allows a party thirty days from the date of the entry of an order to file an appeal, unless the party files a timely motion for judgment notwithstanding the verdict, a motion to amend the court's findings of fact, a motion for a new trial, or any other motion to alter the judgment no later than ten days after entry of judgment. The filing of a timely notice of appeal is essential for this court to obtain jurisdiction. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995).

In the present case, appellant challenges the basis of the chancellor's rulings regarding the south bank of Meyers Creek. Although appellant contends that he is appealing the language included in the chancellor's December 20, 2000 order, similar language regarding Meyers Creek existed in the chancellor's initial order dated March 4, 1999, and in a subsequent order dated April 5, 2000. Appellant did not appeal either of the chancellor'sprevious orders or file a motion to toll the time for filing an appeal. Because appellant failed to file a timely notice of appeal, this court lacks jurisdiction. Consequently, we dismiss appellant's appeal.

Appeal dismissed.

Bird and Crabtree, JJ., agree.

1 Appellant amended his complaint on February 13, 1998, to include Kenneth E. Parker II, William W. Turner, and Russ Tina Turner as necessary third parties because appellee sold them some or all of the property subject to the suit.

2 The complaint pertaining to two areas, referenced as disputed area number 1 and disputed area number 2. Disputed area number 1 consisted of a bow area containing a fence. The chancellor ruled that the fence within disputed area number 1 represented a boundary by acquiescence; the parties do not challenge this ruling on appeal. However, the parties dispute the boundary depicting disputed area number 2.

3 The chancellor described the fence line located in the bow of Meyers Creek as follows:

In the NW1/4 SW1/4 of Section 26, T-3 S, R-22 W, Garland Co., AR being described as: Commencing at the Southwest corner of the said NW1/4 SW1/4; Run N-01-37-00 E along west line of said NW1/4 SW1/4 1085.54 feet to an existing rod for point of beginning; thence along bluff on south side of Meyers Creek S-84-50-E 112.64 feet; thence N-68-22-E 211.55 feet; thence N-75-51-E 20.95 feet to a point of beginning; thence along old fence S-64-34-E 94.48 feet; thence 2-69-54-E 73.32 feet; thence S-59-16-E 62.45 feet; thence S-38-57-E 47.60 feet; thence S-65-31-E 40.08 feet.