*1 242 Stores, v. supra. Inc. Baysinger, in Wal-Mart
described Morse, Forestv. Green cited City was also v. Erickson Griffin American Greetings v. Smith (1994); S.W.2d 154 Ark. 873 316 EOC, Ark. 724 291 Arkansas v. East Central Proctor Corp.,supra; Co., Machine Products Screw v. Southern 163 (1987); Bryant Foods, v. Inc. and Riceland Ark. 707 288 Labor, 832 S.W.2d Directorof Fair School the Public Employee believe that do not We Both doctrine. modified the employment-at-will Act has Hearing Inc., Centro, Morse, supra, Leggett Forest supra, Green City of enacted; cases both of these the statute was decided after were the term at will when is terminable that a contract indicated indefinite, orleft of either the discretion party, is left to employment either or terminable by party. that, admits that even though appellee we hold
Accordingly, term, at will it was terminable a definite contract was for appellant’s reason, were notice and hearing provided either party notice that he was admitted given In his complaint, appellant given. with a hearing. and was for his termination provided of the reason no error in the summary judgment find entry We appellee.
Affirmed. JJ., agree. Neal,
Stroud MOSES, et ux. v. Ella DAUTARTAS Dayton CA 95-366 of Arkansas
Court of Appeals En Banc delivered May Opinion *2 McCraw, Dan for appellants. Hickam,
D. Scott
for appellee.
Mauzy Pittman,
Judge.
Dayton
appellants,
JOHN
Moses,
from a
Betty
court order
that the
appeal
chancery
holding
Dautartas,
Ella
of land to which
proved
affirm.
hold
title. We
appellants
legal
in the
to this
own adjoining
appeal
parties
filed a
Lake Park
Garland County. Appellee
Subdivision
Quinn’s
in May
claiming ownership by
complaint
land on the western
to a narrow
edge
appellants’ prop-
strip
that she had utilized and maintained
asserted
erty. Appellee
of a concrete
for over seven
and that
drainage system
portion
No
had
had been located
area since 1985.
constructed
until
it
one resided on
appellants bought
appellants’ property
was filed after
and built a house. This action
appellants
June
fence in the
built a
that,
It
in order to establish title
is well setded
*3
she had
had the burden of
that
possession, appellee
proving
been in
for more than seven
property continuously
visible, notorious, distinct, exclu
and that her
was
hostile,
sive,
and with intent to hold
the true owner. The
against
and dominion
as to the extent of
may
proof required
to the location and character of the land. It is
vary according
sufficient
the
are of such a nature
that
acts
ordinarily
ownership
and
not exer
as one would exercise over her own
would
property
another,
cise over that of
and that the acts amount to such domin
ion over the land as to which it is
Whether
reasonably adapted.
is adverse to the true owner is a
of fact. See
question
Hubbard,
43,
Walker v.
31 Ark.
Appellee, purchased property son, Dautartas, in she and her Ray began living property stated that the her son 1976. She she and during following years, utilized and maintained the area lumber and disputed by stacking there, area, roof and the by mowing raking by burning there, leaves and a tree 1982. by uprooting Appellee that her use of the could be seen the road and also stated area from addition, there were no to the use. In that objections appellee of the concrete for the construction bills in 1985 dated in the her curves around partly which system, later was that an underground area. She testified pipe disputed Dautartas in the drainage system. Ray area improve installed it raked in the area and also used he leaves that cut testified grass He that firewood and stated area for shingles. as a storage four sixteen feet long. was feet high approximately woodpile testified who surveyed Wade Spainhour, of the drainage timber system that he saw part landscape east of the area He stated that appellee’s property there was cover but that ivy with normal ground wooded ground area, in that “different.” area looking resulting disputed he and wife Moses testified that his bought Appellant Dayton house there. He stated built a their May house, that a the construction appellee complained during also stated had intruded on her He construction worker property. use of the he did not see maintenance or cans, trash from such as Moses testified that aside appellee. concrete, tire, half-buried and a only broken glass, dumped he saw in a tree had been and a the area was uprooted pile thing of dirt. He stated that when offered buy portion area, to sell Moses testified he refused it. Betty Appellant no the area. that she saw of maintenance in sign Stevens, owned whose Moses’ grandmother prop- James he to her death in testified that many years gave erty prior *4 a four months. He stated overview” “cursory every did not else that he see stacks of wood and or anything unusual in the disputed chancellor,
The who viewed stated in a the property, pursuant survey by presented Spainhour structure her the concrete inspection on and had done so encroached appellants’ property her excess of seven chancellor stated years. appellee son their encumbrances were and immediately “presumed proper took action when those encroachments were by [appel- challenged trial, the After in detail at discussing testimony presented lants].” chancellor concluded that the “that for over seven evidence showed clear, was utilized with dispute by [appellee] distinct and intention that disputed belonged unequivocal and, Moreover, her. use of this land to no one challenged 246
further, and concrete struc- the existence of underground pipe ture is not disputed.” concede that met her burden in
On
appellee
appeal, appellants
“the two or three
feet of
showing
possession
square
that are
over the
concrete
her
drainage system
obviously
however, that
failed to show
line.” Appellants argue,
appellee
pos-
of the land she claimed. The
who
session to the full extent
title,
her
color of
that she
makes
claim without
responds
sufficient evidence of her
and of her
possession
intent to hold
the true owner.
adversely against
for a
to estab
necessary
quantum proof
trespasser
lish tide to land
where the
greater
by
possession
trespasser
has no color of title. DeClerk v.
268 Ark.
S.W.2d
596
Johnson,
tide,
When one is
without color of
(Ark.
1980).
claiming
App.
here,
as
does
she must show
or actual
appellee
pedal
possession
the extent of the
claimed boundaries for
seven
required
years.
Id.
Appellants appear
arguing
appellee
required
a structure or
area. We do not
place
improvement
The difference between
without
with and
agree.
claiming adversely
Clark,
color of title was
discussed Clark
App.
as follows:
(1982),
One who enters
under color of title and
adversely
actually
of the tract is deemed to have constructive
possesses any part
of the entire area described in the document
possession
Hillis,
color of title. St. Louis Union Trust Co. v.
constituting
207 Ark.
In of the total circumstances of this we find that the light chancellor’s are not a of the findings clearly against preponderance that appellee’s in the letter opinion noted The chancellor evidence. and stated: testimony corroborated appellee’s son that he worked he testified Specifically, leaves, wood and hauling cutting raking cutting grass, the land. He on for roofing storing also shingles well as the and wood as of lumber that the testified pile on behind the in broad were daylight placed his and no one ever challenged the now disputed property, The land for those use of the purposes. or his mother’s stated, visible, at least he for it was was highly woodpile four feet feet high. sixteen long that there was also discussed Stevens’ testimony chancellor on his no visible encroachment grandmother’s property. sign credible, as the chancellor described the testimony Although he was unable to the existence of deny stated: “[H]owever, as well as the These concrete structure drainage pipe. old and were actual encroachments were over seven readily of the visible Court’s property.” upon inspection view, this must be and remanded In the dissent’s case reversed letter to cure a between the chancellor’s inconsistency perceived and the final find this view to be flawed in We judgment. opinion First, several the chancellor’s findings respects. did not constitute a judgment. decisions, court not of a do opinions, findings a form the
constitute or decree. bases They judgment merely which the decree is or judgment subsequently upon unless a rendered are not conclusive incorporated or be a entered thereon. more They judgment judgment nature verdict a of a no more jury judgment than such verdict. 465, 469-70,
Thomasv. McElroy, Mason, (1967) See also Mason v. (citations omitted). final A determination of the rights parties’ Second,
was not made until the the issue of entry judgment. the final between chancellor’sletter and inconsistency judg ment nor was neither raised or motion below raised by by objection error, it on Even if the trial court were in cannot parties appeal. be case be because to do that the should reversed seriously argued doctrine, so error” would “plain require application *6 Servs., Pac. Inc. in Arkansas. Housing we do not have Security which Friddle, 375 Ark. 866 S.W.2d Lynch Blagg, State, Pharov. 32 (1993); and of the claimed The exact boundaries description and this in Mr. survey, description are Spainhour’s her son testified into the final Appellee judgment. incorporated chancellor viewed the this area. The that their activities covered witnesses, and the court’s area and assessed credibility the extent of the actual finding appellee proved claimed boundaries is not clearly against preponderance evidence.
Affirmed. Mayfield Rogers, JJ., agree. C.J., Jennings, Neal, concur in dissent JJ., part, part. Griffen Griffen, Wendell L. Judge, concurring part, dissenting chancellor in I with the decision to affirm the agree part. actual and continuous case to the extent that of the concrete for the area north proved However, I write to view that the structure. explain my the chancellor so decree must be reversed in and remanded to part true extent of the that it can be reformed to reflect the appellee’s actual (“pedal”) possession. at
The decree was drafted counsel for the direction of the chancellor in an letter dated 1994. That August stated, in pertinent part: case, issue in this after one has examined primary is whether or not there was sufficient adverse meet or maintenance on the property of adverse requirements possession concerning STRUCTURE. NORTH OF THE VISIBLE CONCRETE DRAINAGE indi- of the Plaintiff and her son testimony [appellee] cates that their encumbrances they presumed proper took action when encroachments were immediately these and Plaintiff’s defendants Plaintiff challenged by [appellants]. existed for son testified that the concrete drain had over other encroachments seven and that the leading had Mrs. Dautartas and road existed well over seven years. her son testified to the facts: following purchased 1976; she mowed and raked and built with her son’s which encroached help disputed prop- wood or to store she utilized the area to stack erty; construction materials.
Plaintiff is area of which she has only claiming maintained ACTUAL POSSESSION. This AREA IS THE AREA THE FROM CONSTRUCTED DRAINAGE STRUCTURE NORTH TO Atkinson’s Road.
Mr. Hickam is appellee/plaintiff] requested [counsel court, with prepare precedent entry by complete the PROPER LEGAL DESCRIPTION OF PLAINTIFF’S ACQUIRED PROPERTY AND INCLUDING THE FINDINGS CONSISTENT WITH added.) (Emphasis THIS LETTER DECISION.
It is in actions for adverse beyond question where one enters with neither color of title nor enclosure she is unaided constructive and her claim is limited to that by possession, area over which she maintains actual Clark v. pedal possession. Clark, claimed (1982). Appellee tide, no tide color of and conceded the tide. by appellant’s legal Thus, she was a who claimed title adverse trespasser by possession. Both the evidence at trial and the chancellor’s letter limited the area of to land north of the concrete appellee’spedal possession structure. There was no evidence of drainage south pedal possession The chancellor did not find that there was evidence point. Therefore, south of that pedal possession the decree improvement. erroneous because the legal description includes land south of appellant acquired by the concrete structure. Reversal and remand is if necessary the decree is to be consistent with the trial and if the result is proof, to be consistent with established notions of justice regarding extent that a can tide trespasser acquire possession.
I am authorized to state that Neal in Judge joins opinion.