Bingham v. C & L Electric Cooperative
2015 Ark. App. 237
Ark. Ct. App.2015Background
- Bingham owned a 32-acre parcel long held by his family and leased to tenants; C & L Electric’s distribution line crossed the front of the property for over 30 years.
- C & L employees routinely trimmed and “topped” trees near the line every ~5–10 years; in October 2011 C & L cut down a large oak, a persimmon, and several smaller trees, leaving stumps and debris.
- Bingham sued for trespass, conversion, and conspiracy, claiming sentimental and property value loss from the tree removals.
- C & L moved for summary judgment, asserting it had a prescriptive easement (10 feet each side of the line) permitting removal and that Bingham was time-barred; it supported the motion with an affidavit from its right-of-way supervisor, safety specs, photos, and depositions.
- Bingham produced no counter‑affidavits or evidence of permission, limitation on use, or monetary damage at the summary‑judgment hearing.
- The circuit court granted summary judgment: it found an easement by prescription, the tree removals were within the right‑of‑way and necessary for safety, and Bingham failed to prove damages. Majority affirmed on appeal; one concurring judge emphasized Bingham’s failure to prove damages as independent grounds; one dissent argued factual issues (permissive vs adverse use) remained for a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether C & L acquired a prescriptive easement across Bingham’s property | Bingham: C & L’s long use was permissive; cutting trees was a drastic act that did not retroactively make prior access adverse | C & L: Long, open, visible use of poles/lines and recurring maintenance without objection made the use adverse for statutory period | Court: C & L proved prescriptive easement; use was open, obvious, and adverse for >7 years; summary judgment affirmed |
| Whether the use was permissive or adverse | Bingham: Access was allowed (implicit permission) for trimming; no evidence owner was put on notice of adverse claim | C & L: Evidence showed repeated, visible maintenance over decades that landowner and predecessors knew or should have known | Court: Owner acquiesced by silence/passive assent; permissive use did not appear from the record — use was adverse |
| Whether Bingham proved compensable damages from tree removal | Bingham: Claimed sentimental value and loss of enjoyment/value but provided no valuation evidence | C & L: Noted plaintiff produced no evidence of monetary or property-value loss | Concurring judge: Alternative independent basis — Bingham failed to present evidence of damages; summary judgment proper |
| Whether summary judgment was appropriate | Bingham: Denied; factual question exists (adverse vs permissive) that should be decided by a jury | C & L: No genuine issue of material fact; moving evidence left no material factual dispute | Court: Viewed evidence in light most favorable to Bingham and found no genuine issue; affirmed summary judgment (dissent would have left issue for jury) |
Key Cases Cited
- Fullenwider v. Kitchens, 223 Ark. 442 (discusses when permissive use ripens into prescriptive right after owner’s knowledge or constructive notice)
- Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Associates, 346 Ark. 354 (prescriptive easement requires adverse use under claim of right for statutory period)
- Sebastian Lake Devs., Inc. v. United Telephone Co., 240 Ark. 76 (visible lines/poles and repeated entry to service support a finding of adverse use and prescriptive easement)
- Dixie Furniture Co. v. Ark. Power & Light Co., 19 Ark. App. 160 (affirmed prescriptive easement where transmission structures had been visible and known to owners and predecessors)
- Gallas v. Alexander, 371 Ark. 106 (summary-judgment standard; moving party must establish prima facie entitlement and opposing party must meet proof with proof)