Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust
386 S.W.3d 704
Ark. Ct. App.2011Background
- Adjacent Lake Hamilton properties with a 254-foot boundary; Jenkins bought in Oct 2008 and Fogerty parties in Mar 2009.
- In July 2009, appellees planted a tree and built birdhouses on the disputed portion; after complaints, they removed them.
- Following a dispute, appellees erected a fence two feet off the ground, about nine feet high, allegedly blocking view and lowering value.
- Appellants sued April 15, 2010 for negligence, nuisance, trespass, and bill-of-assurance violation; appellees counterclaimed to quiet title to up to the fence and sought acquiescence boundary or damages.
- Trial court granted partial dismissal at close of appellants’ case (nuisance and bill-of-assurance), denied dismissal of trespass, and later quieted title per a Spainhour survey; boundary by acquiescence dismissed; decree referenced the Spainhour survey.
- On appeal, majority reversed dismissal of nuisance claim and remanded; affirmed other claims and cross-appeal rulings (no attorney’s fees awarded due to Rule 54 issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fence constitutes a nuisance | Jenkins asserts nuisance from the fence obstructing view and is unattractive and hazardous. | Fogerty argues fence has a protective, beneficial purpose and is not a nuisance under DeMers. | Nuisance claim reversible error; remanded for further proceedings. |
| Whether boundary determined by Spainhour survey was proper | Spainhour survey should not control; Blees’ method more accurate. | Spainhour survey credibility and experience justify weight. | Boundary location affirmed based on Spainhour survey. |
| Whether the bill of assurance claim was properly dismissed | Claim not fully developed; should proceed. | Issue inadequately developed; dismissal appropriate. | Claim not preserved/fully developed; affirmed dismissal. |
| Whether the decree properly described the boundary | Descriptive accuracy or attachment of the survey was required. | Descriptions by plats and metes-and-bounds are sufficient; attachment not required. | Decree sufficiently definite; affirmed. |
Key Cases Cited
- DeMers v. Graupner, 186 Ark. 214 (Ark. 1932) (spite fence doctrine and motive focus in nuisance inquiries)
- Petrus v. Nature Conservancy, 330 Ark. 722 (Ark. 1997) (finality and specificity of boundary-decree descriptions)
- Robertson v. Lees, 189 S.W.3d 463 (Ark. App. 2004) (standard of review for boundary fact-findings; deference to trial court)
- Rymor Builders, Inc. v. Tanglewood Plumbing Co., 265 S.W.3d 151 (Ark. App. 2007) (two competing surveys; appellate review limited for clear error)
- Jones v. Abraham, 15 S.W.3d 310 (Ark. 2000) (attorney’s fees discretion and Rule 54(e)(1) timing)
- McDonald v. Roberts, 9 S.W.2d 80 (Ark. 1928) (description sufficiency for boundary purposes)
- River Valley Land, Inc. v. Hudson, 347 S.W.3d 40 (Ark. App. 2009) (metes-and-bounds subdivision descriptions)