Berry v. Moon
2011 Ark. App. 781
Ark. Ct. App.2011Background
- Neighbors Neal Moon and Anna Moon used a concrete driveway on Joe Berry and Beulah Berry's property to access the rear of the Moon property for years.
- Berry property was surveyed in 2008; afterward Berry fenced and denied Moon access to the driveway.
- Moon filed a declaratory-judgment petition in 2008 seeking a prescriptive easement over Berry's land; Berry answered with a counterclaim for trespass.
- Witnesses testified that access depended on the driveway; some believed there was an express easement, others noted no formal evidence.
- The circuit court granted an easement by prescription for access to the Moon rear, but did not resolve the trespass counterclaim; on appeal, the court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moon proved a prescriptive easement by prescription | Moon contends use was adverse and under claim of right for the statutory period. | Berry asserts use was permissive and did not place owner on notice of an adverse claim. | Prescriptive easement not proven; use deemed permissive. |
| Whether an easement by implication or by necessity exists | Moon argues implied or necessary easement existed from unity of title and use. | Berry contends there was no permanent, obvious, or necessary easement. | Neither easement by implication nor by necessity proven. |
| Whether the counterclaim for trespass should be addressed separately | Counterclaim tied to easement sought; its disposition depends on easement ruling. | Trespass claim independent of easement issues; should be adjudicated on its own merits. | Remand to resolve the counterclaim consistently with reversal of easement ruling. |
Key Cases Cited
- Slaton v. Slaton, 983 S.W.2d 951 (Ark. 1999) (equity review de novo; clearly erroneous standard)
- Manitowoc Remfg., Inc. v. Vocque, 819 S.W.2d 275 (Ark. 1991) (easement by implication requirements)
- Hanna v. Robinson, 167 S.W.3d 166 (Ark. App. 2004) (necessity and unity of title considerations for easement by implication)
- Hedger Bros. Cement & Materials, Inc. v. Stump, 10 S.W.3d 926 (Ark. App. 2000) (necessity requires more than mere convenience)
- R & T Properties, LLC v. Reyna, 61 S.W.3d 229 (Ark. App. 2001) (necessity element strictness and use context)
- Manitowoc Remfg., Inc. v. Vocque, 819 S.W.2d 275 (Ark. 1991) (permanent and obvious servitude requirements for implied easement)