NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION II

CA01-1433

AUGUST 28, 2002

JACK D. HAMMONS AN APPEAL FROM THE BRADLEY APPELLANT COUNTY CIRCUIT COURT

v. [CIV 2000-50-2]

CATHEY ADAIR HONORABLE SAMUEL B. POPE, APPELLEE JUDGE

AFFIRMED

Appellant Jack Hammons brings this appeal from an order of the Bradley County Circuit Court, which granted appellee's complaint in ejectment. In its order, the court found a survey conducted by appellee's surveyor to be more credible than that of appellant's survey. The court also found that appellee's survey established the correct boundary line between the parties' properties. On appeal, appellant asserts that there was insufficient evidence to support the court's finding that appellee's survey was credible and was correct in establishing the boundary line between the parties. We disagree and affirm.

The facts of this case are as follows. The parties own adjoining property located in Warren, Arkansas. The properties are bound on the north by Church Street. Appellant's property has been in his family since 1911 and he is the record title owner. Because his sister wanted to build a house on the property, appellant hired Robert Wynn to prepare a survey (Wynn survey). Based on the Wynn survey, appellant erected a fence along his west property line, which is also appellee's east property line.

Appellee's father, B.M. Johnson, acquired the property adjoining appellant's in 1991. He later conveyed the property to appellee. Appellee disagreed with where the Wynn survey located the property line and hired Sam Paulus to prepare a new survey (Paulus survey). The Wynn and Paulus surveys agreed as to the location of the southeast corner of appellee's property, which is also the southwest corner of appellant's property. However, the surveys do not agree as to the course the line takes northward from the corner. Appellee filed a cause of action for ejectment. After conducting a bench trial, the court found that the Paulus Survey was more credible than the Wynn Survey and that the Paulus Survey established the correct boundary line between the parties' properties. The court also ordered appellant to remove his fence to the survey line as established by the Paulus survey. Appellant now brings this appeal.

For reversal, appellant argues that the court's finding that the Paulus survey was more credible and was correct in establishing the boundary line between the parties' properties is not supported by substantial evidence. The standard of review is not whether there is any substantial evidence to support the findings of the court, but whether the judge's findings were clearly erroneous or clearly against the preponderance of the evidence. See Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Foundation Telecomm., Inc. v. Moe Studio, Inc., 69 Ark. App. 20, 9 S.W.3d 542 (2000), rev'd on other grounds, 341 Ark. 231, 16 S.W.3d 531 (2000). Disputed factsand determinations of witness credibility are within the province of the fact finder. Pre-Paid Solution v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).

Sam Paulus, a registered professional surveyor, testified that he prepared the Paulus survey for appellee. He stated that appellee's deed indicated that she owned Lot 5, Block 45 of Turner's map. In preparing his survey, Paulus went to the courthouse and researched "everything he could find" and he consulted Turner's map and the Wynn survey. He then tied the necessary corners, thus resulting in the Paulus survey. Paulus testified that in conducting his survey, he followed the acceptable survey standards of practice. He stated that the Paulus and Wynn surveys agree as to the south termination of the line between the properties at the southeast corner of appellee's property, but that they disagree as to the bearing the line takes north from the southeast corner.

Paulus testified that he used existing monuments to prepare the Paulus survey. He explained that in the northwest corner of the property that adjoins appellee's on the west, he located a monument and that he also located a monument in the northeast corner of this property, which is also appellee's northwest corner. Paulus testified that he did not know who set the monuments. From the northwest corner of appellee's property, he followed the description in appellee's deed and went 108 feet east, parallel to Church Street to set the northeast corner of appellee's property. Paulus stated that he then ran a line from the northeast corner back to the southeast corner. He explained that appellee's deed stated that the line bears north from the southeast corner to the northeast corner. He stated that he chose "the north 01 degrees 48 minutes 44 seconds east bearing because that is what happens when you use the southeast corner of the [appellee's] tract and the northwest corner of the [appellee's] tract and produce the deed width, which is 108.1 feet." Paulusalso stated that his bearing on the west line is the same as his bearing on the east line. He testified that the Wynn survey resulted in appellee's property being ten feet less than what is in her deed.

Robert Wynn, a registered professional land surveyor for the State of Arkansas, testified that he prepared the Wynn survey for appellant. Wynn stated he was familiar with the Paulus survey and that he did not agree with where the Paulus survey located the northwest corner of appellee's property. Wynn testified that in preparing the Wynn survey, he researched old surveys and witness data located in the county courthouse. During his research, he found no record of the monument located in the northwest corner of appellee's property. Wynn stated that he did not think the monument was the northwest corner of appellee's property because it is "approximately" ten feet too far to the east.

Wynn testified that, over the years, he has surveyed the entire forty where the properties are located, so he knows the bearings of the north, south, east, and west lines of the forty. He began the Wynn survey by establishing the corners of the forty. After establishing the boundaries of the forty, he "more or less . . . [connected] the dots between the forty corners that we . . . established and [drew] out their property descriptions." Wynn also surveyed the south and east sides of appellee's property and "coordinated [appellant's] description to that point." He stated that he did this "because [appellant's] description called to start on the east side of his property and go west to what they called the Greenwood Deed, which was an owner in the previous chain of title to [appellee]."

In determining the bearing of the line between the northeast and southeast corner, Wynn stated that he chose to run the line true north. He ran true north/south to the middle of the forty,which was "more or less" parallel to the east and west lines of the forty. Wynn stated that "my measurement on the north line that goes on Church Street is 139.6 feet. The deed calls for two chains but it also says to Greenwood's east line. The Greenwood's east line would be the controlling monument in that description. It would control over distance." Wynn explained that a distance of two chains equals 132 feet.

We cannot say that the court's findings are clearly erroneous. The location of a boundary line is a question of fact. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). The court had the right to give greater weight to the Paulus survey because in the location of land boundaries, where there are inconsistent surveys, resort may be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries, and thereafter to courses and distances. See Rice v. Whiting, 248 Ark. 529, 452 S.W.2d 842 (1970). Therefore, we affirm the trial court.

Affirmed.

Jennings and Griffen, JJ., agree.