ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

WINGMEAD, INC.

v.

RANDALL LEE

APPELLEE

CA02-1263

SEPTEMBER 17, 2003

APPEAL FROM MONROE COUNTY CIRCUIT COURT

[NO. E00-78]

HONORABLE BENTLEY E. STORY, CIRCUIT JUDGE

APPEAL DISMISSED

Andree Layton Roaf, Judge

This case involves a boundary line dispute between adjoining landowners, appellant Wingmead, Inc., and appellee Randall Lee. Wingmead filed a quiet title action, seeking to quiet title to the south boundary of its property according to its recent survey. Lee then filed a counter-petition to quiet title to his north boundary. The trial court found that an intermittent fence line had become the boundary line by acquiescence and quieted title in Lee according to the fence line. On appeal, Wingmead argues that the trial court erred in (1) concluding that remnants of an old fence line were clear and visible evidence of a dividing line for purposes of acquiescence; (2) finding that there was an implied agreement to accept the fence as the boundary line as a result of posting along the fence line; and (3) finding acquiescence regarding that portion of the property that Lee had owned for only a period of five or six years. We dismiss the appeal for lack of a final appealable order.

Wingmead owns 111 acres of land, which lie directly north of Lee's approximately 160-acre tract. The boundary between the parties' properties consists of wild and unimproved timber land, which frequently floods and is used primarily for duck and deer hunting. According to the testimony of Wingmead's employee, Timothy Doepel, Wingmead acquired its property in 1976; the deed, however, reflects that Wingmead acquired its property in 1989. Lee acquired his property in two separate conveyances; he was deeded the east one-half from various owners in 1986 and was deeded the west one-half in 1994.

Doepel, who is employed by Wingmead as a wildlife manager, testified that he and others at Wingmead were not certain exactly where their south boundary line was located prior to having a survey completed in 2001, after the dispute with Lee arose. Doepel testified that there existed remnants of an old fence that ran along the southern border of Wingmead's property and that both parties had posted "No Trespassing" signs and had painted trees along this fence line with purple paint to delineate where the boundary was located. Doepel stated that there had never been a dispute over the boundary line with the adjoining landowners until the current dispute with Lee. According to Doepel, for the twenty-one years that he had been an employee of Wingmead prior to the survey in 2001, he had "respected the old fence line as basically the boundary line, all of us did until the new survey . . ." Doepel also testified that the prior owner had posted signs along the fence line and that some of these signs still existed, although they had become embedded in the trees.

Doepel testified that Wingmead decided to have a survey done because Lee started encroaching upon their property north of the fence line by pushing trees onto Wingmead's property with his bulldozer and began hunting in a "duck hole" north of the fence line, which he agreed was "at the root" of the parties' dispute. According to Doepel, Wingmead hired a surveyor in 2000 to locate the boundary line. Before the surveyor could finish, the survey markers were pulled out of the ground, and the surveyor refused to complete the survey. Wingmead then filed suit against Lee in June 2000, seeking to quiet title to the boundary between the properties. Wingmead hired Keith Murders to do another survey in August 2000. When some of these markers were also pulled out, Wingmead filed an amended complaint to add a claim for trespass.

There were four different surveys introduced into evidence. Lee had a survey done by the Sam Word Company in 1986 when he bought the property. This survey reflected the north boundary line of Lee's property as being the existing fence line. A survey completed in 1989, also by Sam Word, again reflected the boundary line as the fence line. In 1999, a survey was prepared for Wingmead by Donald Sheffer, who used the same pins that were placed in the Sam Word surveys. This survey also placed the boundary line along the old fence line. However, Sheffer did not show remnants of the old fence on the west half of Lee's property, which Lee acquired in 1994, nor did he show the location of the actual boundary line. Keith Murders's survey, completed in 2000, used different monuments and found that Wingmead's boundary line was south of the old fence line. Murders testified that his survey was more accurate because it complied with applicable surveying standards by running a straight line between the corners of the quarter sections. According to Murders, it is not acceptable to have a "bowed" or "curved" boundary line between quarter sections, as is found in each of the other surveys that follow the fence line. Murders testified that he did see the remnants of an old barbed wire fence along the south boundary. He stated that the fence was "pretty definite" along the eastern side, but that it "pretty much disappears" along the western side other than some wiring in the trees. Murders also testified that he saw painted trees along both sides of the old fence line, along with posted signs. Murders stated, however, that he would not consider the old fence line as visible evidence of a dividing line between the parties.

Donald Sheffer testified that he used the Word survey as a reference when surveying the boundary line in 1999. Sheffer stated that he started at the western termination of the boundary, where the old fence was still in existence, and found that if he extended a line from that point to the existing iron pin at the midpoint, the line fell "more or less" along an old fence line. Sheffer admitted that this line was "bowed" and that a boundary line is usually supposed to be straight. Sheffer stated that he found remnants of an old fence across the entire quarter section, although the fence was not continuous. Sheffer testified that the fence line along the eastern side was in good repair, that a path had recently been cleared out, and that new steel fence posts had been placed along the old line. He stated that there were signs and painted trees along the entire fence line. On the western side, Sheffer testified that the old fence consisted of pieces of barbed wire embedded in the trees.

Lee testified that he started hunting on his property in 1985 before he bought the eastern half in 1986 and that he had also been hunting on the western half of his property since 1986,even though he did not buy it until 1994. Lee testified that there were signs posted on both sides of the fence line when he moved there, along with painted trees. He stated that he also posted signs on his side of the fence line in 1986. Lee testified that he also had on his property several duck hunting benches and a deer stand that had been there since 1986. Although these are on the south side of the old fence line, Lee testified that they are on the north side of Murders's surveyed line. In addition, Lee stated that Wingmead had cut a right-of-way along the old fence line three or four times in the last ten years so that they could ride 4-wheelers around the area, and that Wingmead would post signs and paint trees along the fence line every year. According to Lee, during the sixteen years that he had lived on his property, he had accepted the fence line as the boundary between him and Wingmead.

After hearing the evidence and viewing the disputed area, the trial court stated that the Murders survey accurately reflected the quarter section line. However, the trial court also found that the parties and their predecessors in title had tacitly accepted the fence line as the boundary line between the parties for a long period of time. Thus, the court found that the intermittent fence line is the boundary line by acquiescence. However, because of the inadequacy of the existing surveys, the court ordered a new survey to locate and place markers along the court-determined boundary line. According to the court, the new survey should signify the fence line as the boundary line, but should also indicate the true quarter section line, as well as the distances between the two lines. Wingmead appeals from the trial court's decision. Although not addressed by the parties in their briefs, before we can address the merits of this appeal we are bound to consider whether the order appealed from is final, in that it mandates a new survey notcompleted at the time. Indeed, at oral argument of this case, Wingmead's counsel responded to a question on this issue by promptly citing and discussing the following two cases. In Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), the supreme court dismissed the appeal for lack of finality where the trial court quieted title to disputed property in the appellee, and the precise boundary lines were to be resolved by a future survey. In Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997), this court affirmed as modified the trial court's finding that a meandering fence was a boundary line by acquiescence as reflected by a specific survey, where the decree itself did not contain the actual description of the boundary line. Wingmead argued that the facts of its case are more analogous to Jennings v. Burford than to Petrus v. Nature Conservancy, and contended that this court should address the merits of its appeal and, if necessitated by our decision, grant leave to the trial court to amend the decree by adding a specific legal description of the boundary as we did in Jennings v. Burford. Lee's counsel also asserted in oral argument that the decree is final and that we should address this appeal on the merits.

We cannot agree that this case is analogous to Jennings v. Burford, supra. In that instance, the trial court ruled that both the fence line and a specific survey of it would delineate the boundary between the parties' properties. Id. We concluded that this was a final order and that the omission of the legal description established by the survey could be corrected by amending the decree. However, in the case before us, as in Petrus, a future survey is contemplated. Moreover, Wingmead contended in oral argument that survey of the area of the intermittent fence would be difficult if not impossible to perform, and that it would not be bound by this survey.

In Petrus, supra, the supreme court stated:

330 Ark. at 725, 957 S.W.2d at 689. This court is bound to follow supreme court precedent, and it is clear that the decree in this case has not decided the rights of the parties or ended the litigation, and does not describe the boundary line between these disputing landowners either solely within the decree or by reference to an existing, completed survey. Accordingly, pursuant to both Petrus v. Nature Conservancy, and Jennings v. Burford, supra, the decree lacks finality, and we must dismiss this appeal.

Appeal dismissed without prejudice.

Hart and Crabtree, JJ., agree.