International Paper Co. v. Warnix, 237 Ark. 938

Jim Johnson, Associate Justice. This suit arises from a boundary line dispute. A similar controversy between appellee and appellant’s predecessor in title was involved in a prior suit, Brown Paper Mill Co., v. Warnix, 222 Ark. 417, 259 S. W. 2d 495. In that suit Brown Paper Mill Company sought to enjoin appellee Warnix from cutting timber on land claimed by Brown Company and to recover damages for timber already cut. At that trial appellee presented the testimony of the county surveyor relative to his survey of the boundary line.

Brown Company disputed the accuracy of the county surveyor’s measurements, but offered “no persuasive substitute” in that Brown Company employed two surveyors who disagreed with each other and with the county surveyor. This court ruled, ‘ ‘ To accept any of the three suggested lines is to reject the other two. After studying the record we are not convinced that any one of the three is demonstrably more reliable than the other two.

In these circumstances the chancellor rightly held that the plaintiff had not met its burden of proof. ’ ’ In the case at bar appellant, International Paper Company, successor to Brown Paper Mill Company, Inc., filed a complaint on August 13,1962, in Grant Chancery Court to enjoin appellee W. P. Warnix from cutting or removing any timber ‘ ‘ east of a marked and visible line established and maintained by plaintiff . .. between

Section 33 and 32,” praying that plaintiff’s title be quieted and confirmed against defendant (appellee) and that the boundary line between the lands be established as marked by plaintiff. A temporary injunction was then issued. Appellee filed a general denial and thereafter an amended answer and cross-complaint in which he denied that he claimed any land east of the original line, and further denied that he had any notice or warning of the repainting of any lines contrary to that which he had blazed out, and cross-complained for damages in the sum of $500.00.

At trial of the cause on July 5, 1963, the chancellor found that the parties stipulated that the issue is the true location of the line, and found that the preponderance of the evidence proves that the true line is the one claimed by appellee, that the temporary injunction should be dissolved and appellee on his cross-complaint should be awarded $100.00 as damages. Prom this decree appellant has appealed, urging three points for reversal.

Appellant’s first point is, “The location of the line between appellant’s and appellee’s land is res ad judicata having been adjudged to be located as contended here by appellant. The trial court erred in refusing to recognize the line as determined in Brown Paper Mill Co. Inc. v. Warnix, supra.” Both parties seem to be under the misapprehension that this court adopted a line in the Brown case.

On the contrary—this court specifically refused to select a line and stated that, “After studying the record we are not convinced that any one of the three [lilies] is demonstrably more reliable than the other two.” This court simply upheld the ruling that Brown Company had not met its burden of proof. Appellant’s second point urged for reversal is that the clear preponderance of the evidence shows that the parties have accepted the line contended for by appellant.

Three of appellant’s employees testified to marking a line with aluminum paint in 1958, following old red markings two-thirds of the way, which they understood and believed to be the true boundary line, and that they did so with appellee’s knowledge, consent and acquiescence.

These three witnesses are apparently well qualified as foresters.; however none of them claimed to be surveyors or to have worked with a surveyor in locating this line; none of them testified to starting from a recognized corner, but testified that they had measured a certain number of feet from an existing fence which was some distance from the

section corner. Appellee, on the other hand, denied that he had consented or acquiesced in that line and testified that the old red markings were those of a timber estimator who had cruised the timber and that the boundary line was in a different location, well-blazed by earlier surveys. Appellee and several of appellee’s witnesses testified to being present and working in a survey xcarty some years earlier and testified to where they understood the true line to be, describing the particular surveyor’s individual blaze as well as the

section corner blaze with which this line corresponded. Reviewing the record on trial de novo, considering the disputed testimony on this point as well as the uncontradicted testimony of appellee relative to his damages (appellant’s third point), we cannot say that the chancellor’s findings are against the preponderance of the evidence and must therefore affirm the trial court. Harris, C. J., and George Rose Smith and Prank Holt, JJ., dissent.