Barton v. Brockinton
2017 Ark. App. 369
| Ark. Ct. App. | 2017Background
- Adjacent landowners (the Bryants and the Brockintons) disputed the north–south range line separating their properties in Faulkner County; Bryants sued alleging trespass, fence destruction, and storage buildings on their land.
- Three surveyors testified: James Ross and Scott Foster for the Bryants, and Tim Tyler for the Brockintons; Ross/Foster located a range line west of a PK nail in the road, Tyler located a line about 27 feet east anchored at the PK nail.
- No party introduced certified original GLO field notes or a certified county-surveyor record reestablishing the original federal range line; each surveyor relied on prior surveys, monuments, and their own retracement techniques.
- The circuit court credited Tyler’s survey as the closest approximation to the original range line and entered judgment for the Brockintons; Bryants appealed arguing error in accepting the Tyler line, failure to draw adverse inference for missing witnesses, and exclusion of a diary.
- The Court of Appeals reviewed factual findings for clear error (preponderance standard) and deferred to the trial court’s credibility determinations among competing expert surveys.
Issues
| Issue | Plaintiff's Argument (Bryants) | Defendant's Argument (Brockintons) | Held |
|---|---|---|---|
| Proper boundary line location | Ross/Foster’s retracement of the original range line (not the PK nail) is correct; Tyler’s start point (PK nail) is incorrect | Trial court could permissibly accept Tyler’s survey; credibility determination is for factfinder | Affirmed: court not clearly wrong to accept Tyler survey over Ross/Foster given competing expert testimony and deference to factfinder |
| Whether adverse inference required for not calling Tyler’s predecessors | Testimony of Tyler’s father and Earnhart would show PK nail was historically used; absence warrants adverse inference | Choice of witnesses and calling decisions are for parties; no automatic adverse inference on appeal | Denied: appellate court will not reweigh or draw adverse inference; no reversible error |
| Exclusion of a deceased relative’s diary | Diary would show notice of Bryants’ claim and boundary dispute | Diary was irrelevant once court determined Brockintons owned property under accepted survey | No need to decide because boundary ruling renders the diary issue moot; no reversal |
| Standard of review for competing surveys | N/A (argument focused on facts and correctness) | N/A | Court applies clear-error review to factual boundary determinations; where two permissible views exist, appellate court will not substitute its judgment |
Key Cases Cited
- Mason v. Peck, 239 Ark. 208 (burden of proof and clear-error standard in boundary cases)
- Missouri Pacific R.R. Co. v. Sale, 197 Ark. 1111 (new surveys cannot affect valid private rights under old surveys)
- Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141 (deference to factfinder where two permissible views of evidence exist)
- Anderson v. Bessemer City, 470 U.S. 564 (appellate standard: factfinder credibility choices not overturned if permissible)