Acuna v. Watkins
423 S.W.3d 670
Ark. Ct. App.2012Background
- Scott County circuit court held Katie Drive is a public-access road with a prescriptive easement for the public and barred Acuna from placing fences or cattle guards across Katie Drive or at its intersection with Watkins' driveway; it allowed a fence on the east side and found the 'suitable fence' covenant vague and unenforceable.
- Acuna purchased his property in 2009 to run cattle and installed a cattle guard at the Katie Drive/Hwy 71 intersection; the city removed it at the city's direction as the road was treated as public.
- City officials, including Mayor Don Owens, testified Katie Drive is a public-access road maintained by the city, with trash trucks, mail delivery, and six households using it regularly; it is not a formally dedicated city street.
- Randall Watkins testified he bought in 2007; Katie Drive had a city street sign at entry and mail/trash service uses continued along the road; Laura Lane runs east of Katie Drive near his property.
- Scott County Title Company’s Donald Goodner identified 1973 and 1981 roadway easements and testified Katie Drive was not mentioned in appellees’ deed and appeared to be a city street; a 1978 deed contained a 'suitable fence' covenant, which he deemed vague and personal, not running with the land.
- Judge Forbes and James Cox’s deposition testimony supported the view that cattle and fences would be inappropriate for a public road; the trial court ultimately affirmed the prescriptive easement and the unenforceability of the fence covenant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a prescriptive public easement exist for Katie Drive? | Acuna contends use was permissive and not adverse enough to ripen. | Watkins/ appellees show open, ongoing public use for years with maintenance, signs, and city involvement. | Prescriptive easement to the public was not clearly erroneous; established. |
| Is the restrictive covenant to place a 'suitable fence' enforceable as running with the land? | Covenant runs with the land and requires a fence suitable to keep livestock out. | Covenant is vague, personal in nature, and not included in appellees’ deed; does not run with the land. | Covenant is unduly vague and does not run with the land; unenforceable. |
| Was the prohibition of cattle guards appropriate given the easement and public use? | Cattle guards, properly designed, should be allowed to enable full use of land. | Allowing cattle guards would conflict with public use and create hazards; easement fixed as public road. | No error in prohibiting cattle guards; consistent with public-easement maintenance and safety. |
Key Cases Cited
- Zunamon v. Jones, 271 Ark. 789 (Ark. 1981) (permits that permissive use can become adverse under certain conditions)
- Le Croy v. Sigman, 209 Ark. 469 (Ark. 1946) (adverse use ripening principles for presumed notice)
- Craig v. O’Bryan, 227 Ark. 681 (Ark. 1957) (maintains that continued public use of a road must show more than sporadic maintenance)
- Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271 (Ark. 1991) (easement by prescription requires adverse use, not merely permissive use)
- White v. McGowen, 364 Ark. 520 (Ark. 2006) (restrictive covenants are strictly construed against land-use limitations)
- Massee v. Schiller, 243 Ark. 572 (Ark. 1967) (reasonableness of cattle guards depends on facts and circumstances)
- Hatchett v. Currier, 249 Ark. 829 (Ark. 1971) (cattle guards may be required; burdens on use depend on context)
- Fort Smith Gas Company v. Gean, 186 Ark. 573 (Ark. 1932) (covenants for personal benefit may not run with land)