dissenting. I respectfully dissent because I believe that my learned colleagues have failed to apprehend that the appellants are correct when they argue that the proper resolution of this case lies within the plain wording of Arkansas Code Annotated section 14-18-101 (Repl. 1998). The July 2001 survey, which was duly certified and filed for record, divided Tract 5 before the restrictive covenants were amended to prohibit it. The trial court — and the majority — are simply wrong when they conclude that the deed that conveyed the new parcel encompassing Tract 5 and half of Tract 4, without reference to the July 2001 survey, had any effect on the new subdivision. It has been the law in Arkansas for more than sixty years that returning platted land to acreage requires the action of the County Court in which the land lies. Ark. Code Ann. § 14-18-110 (Repl. 1998).
The majority’s reliance on Arkansas Code Annotated section 14-18-102 (Repl. 1998) as support for the proposition that the deed between MMI and the appellants is curious, at best. It could perhaps support the proposition that the deed, which does not reference the July 2001 survey, was deficient. It is quite a leap — or lapse — in logic to conclude that a faulty property description in a deed could annul the actions of the Baxter County Planning Board and relieve the County Court of its responsibilities under section 14-18-110.
The majority also errs when it cites City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993), as authority for the proposition that the appellants were somehow required to make a “sale” with reference to the 2001 plat in order to divide Tract 5. I would think that the name of the appellant, “City of Sherwood” is the first clue that this venerable authority was inapposite for a case involving property that lay outside the incorporated territory of a city or town. See Ark. Code Ann. § 14-18-110. Even if Cook involved the same statutory scheme as the case at bar, it involves an entirely different situation. As our supreme court notes, the disputed property in Cook “has never been described or platted in the Bills of Assurances and plats for the Trammel Addition. Furthermore, the six acres has been described by metes and bounds in every instrument of conveyance introduced at the trial.” 315 Ark. at 117, 865 S.W.2d at 294. The key point here is that the appellees in Cook never made the plat or filed it for record; whereas, the appellants in the instant case clearly did. Moreover, and more importantly, Cook does not authorize the majority to insert into the statutory scheme, codified as Arkansas Code Annotated section 14-18-101 and following, a requirement that a party make a sale with reference to a plat in order to make subdivision of his property effective. I decline to follow the majority in its unauthorized and ill-advised invasion of the province of the legislature.
Therefore, I respectfully dissent.