concurring. I would affirm the decree, because I do not feel that appellant has met its burden on appeal.
In cases where location of a boundary line, with overtones of adverse possession, is involved, we have held that the question is determined upon a preponderance of the evidence and that we must affirm a chancellor’s decree unless his holding is clearly against the preponderance of the evidence. Kieffer v. Williams, 240 Ark. 514, 400 S. W. 2d 485. This is simply an application of the long-standing rule that this court will not, on appellate trial de novo, reverse a chancery court decree making findings of disputed questions of fact on conflicting evidence unless they are clearly against the preponderance of the evidence. Hunter v. Dixon, 241 Ark. 725, 410 S. W. 2d 389. It is incumbent upon an appellant to establish that such findings are erroneous. City of Little Rock v. Sunray DX Oil Company, 244 Ark. 528, 425 S. W. 2d 722.
In cases where testimony concerning descriptions, lines, boundaries, corners, location of buildings, physical evidence of points, areas, focal points, etc. is indefinite, we defer largely to the chancellor’s conclusions regarding matters ambiguous in print. Hopkins v. Williams, 215 Ark. 151, 219 S. W. 2d 620. When we cannot be assured that all pertinent evidence considered by the chancellor is before us, in boundary cases, we must affirm his decree. Johnson v. Smith, 215 Ark. 247, 219 S. W. 2d 926.
I am simply unable to say, upon the abstracts of the record before us, that the chancellor’s holding is erroneous or clearly against the preponderance of the evidence. I am compelled to defer to the chancellor’s conclusion under the circumstances. I cannot follow the critical testimony on the points involved, partly because I have no assurance that all pertinent evidence before the chancellor is available to us. In order to follow the testimony with any degree of understanding it would be necessary that each of us have available an abstract or reproduction of many of the exhibits to which the witnesses, the attorneys and the chancellor referred. This is the reason that our Rule 9 (d) requires an abstract of the record of such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to this court. See Rule 9, Supreme Court Rules, 3 A, Ark. Stat. Ann. (Supp. 1969). Compliance with that rule specifically requires:
Whenever a map, plat, photograph, or other exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.
It was not shown that it was impracticable to reproduce the exhibits in this case, and the requirement was not waived by this court. It seems that reproduction of at least one important exhibit, a plat referred to in oral argument, would have presented no difficulty.
We have affirmed decrees previously upon the basis of my concurrence. In Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260, we said:
In reply to the appellee’s criticism of the abstract the appellant insists that it is unnecessary to abstract the testimony in a chancery case, for the reason that this court tries the case de novo. The appellant is mistaken in her understanding of our practice'. The case is tried de novo, it is true, but the trial is upon the evidence as abstracted by the parties and not upon the original record. We have repeatedly required compliance with Rule 9 in equity cases. Davis v. Spann, 92 Ark. 213, 122 S. W. 495; Norden v. DeVore, 207 Ark. 1105, 184 S. W. 2d 585; Reep v. Reep, 219 Ark. 270, 241 S. W. 2d 262.
It is with extreme reluctance that this court considers affirmance of a decree pursuant to Rule 9 (e). It is, and will be increasingly, appropriate that we so act more frequently in view of the case load of this court. My brother Jones has done an excellent and thoroughly painstaking job of analysis of the testimony of the witnesses. I submit that it could not have been done without his reviewing the full transcript of the testimony. I doubt that any other member of the court has the understanding of this testimony to be gleaned from such a tedious and time-consuming perusal. I am aided to some extent by the product of his labors, but I am still unable to exercise any independent judgment as to where the preponderance of the evidence lies on the sharply disputed fact questions involved. I can only concur in the affirmance of the decree.