Whittenburg v. Moody
2015 Ark. App. 464
| Ark. Ct. App. | 2015Background
- John and Sandra Moody own 15 acres; William Whittenburg owns two contiguous 330 x 330 ft tracts (total five acres) immediately east of the Moodys.
- A 2004 survey by licensed surveyor David Hamilton placed the true boundary east of an old, derelict north–south fence; the old fence lay 34–57 ft west of the surveyed line.
- The Moodys recorded the 2004 survey and placed corner markers; the Webbs (Whittenburg’s immediate predecessors) acknowledged the 2004 line and did not claim land to the old fence.
- Whittenburg purchased at foreclosure in 2008 and thereafter cleared and maintained land up to the old fence and alleged use of a septic tank on the disputed strip. The Moodys sued for ejectment in 2010.
- At bench trial the court adopted the 2004 survey as the boundary, ordered ejectment of Whittenburg from the disputed area, and Whittenburg appealed raising laches, monuments/fence construction, adverse possession, excluded witness/testimony, admissibility of the survey, and judicial-bias claims.
Issues
| Issue | Plaintiff's Argument (Moodys) | Defendant's Argument (Whittenburg) | Held |
|---|---|---|---|
| Laches/acquiescence | Moodys argued they did not acquiesce to the old fence and sued promptly after Whittenburg’s post-2008 activity. | Whittenburg argued Moodys unreasonably delayed since 1979 and thus are barred by laches; also claimed acquiescence to fence line. | Trial court: no laches—Moodys did not accept fence as boundary; suit timely after Whittenburg’s encroachment. Affirmed. |
| Monuments/"fence" in deed (rule of construction) | Moodys relied on 2004 survey and monuments showing true boundary. | Whittenburg relied on deed calls stating west boundary follows "a fence," asserting the old fence controls. | Court: survey and monuments showed no reliable fence at the deed line; the old derelict fence was not the monument intended. Boundary per 2004 survey affirmed. |
| Adverse possession/tacking | Moodys: no evidence of adverse possession by Whittenburg or predecessors. | Whittenburg claimed tacking to predecessors’ use and continuous possession to fence. | Court: predecessors (Webbs) accepted 2004 line and did not occupy to fence; Whittenburg’s own use <7 years. Adverse-possession denied. |
| Evidentiary/preservation (excluded witness, survey admissibility, judicial-bias) | Moodys: record preserves admission of survey and no objection to judge; exclusion/procedural issues were waived. | Whittenburg claimed exclusion of Mrs. Johnson, survey inadmissible, and judicial bias. | Court: failure to proffer witness testimony or timely object forfeited review; survey admitted without objection; bias not preserved—issues not preserved on appeal. |
Key Cases Cited
- Dierks Lumber & Coal Co. v. Tedford, 201 Ark. 789, 146 S.W.2d 918 (1941) (rule that monuments and definite boundaries control vague quantity calls in deeds)
- Abernathy v. Weldon, Williams & Lick, Inc., 54 Ark. App. 108, 923 S.W.2d 893 (1996) (failure to proffer excluded testimony precludes appellate challenge)
- Travis Lumber Co. v. Deichman, 2009 Ark. 299, 310 S.W.3d 239 (2009) (points not properly objected to at first opportunity are not preserved for appeal)