Pop-A-Duck, Inc. v. Gardner
642 S.W.3d 220
Ark. Ct. App.2022Background
- The Gardners owned a 220-acre farm in Jackson County through which the Cache River runs; PAD (Pop‑A‑Duck, Inc. and individual shareholders) and intervenor Hardin sought access to a preferred boat landing on the river reached by a private farm road across the Gardners’ property.
- PAD and others had used the farm road and landing for hunting/fishing for decades; appellants claim continuous adverse use and occasional maintenance of the road.
- In 2018 the Gardners contracted to sell the property to Evans who planned to gate the road; PAD sued seeking easement by necessity, prescriptive easement, and a public easement; the easement‑by‑necessity claim was dismissed pretrial.
- A TRO and agreed preliminary injunction temporarily preserved access; the gate was erected and litigation continued.
- After a two‑day bench trial and an on‑site inspection, the circuit court found appellants failed to rebut the presumption of permissive use, discredited some witnesses, and denied prescriptive and public easements; appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Legal standard for prescriptive easement on farmland | Appellants: active/cultivated farmland is "developed," so no presumption of permissive use; only standard 7‑year adverse use required | Gardners: presumption of permissive use applies to unenclosed/unimproved land and the court applied correct law | Court: Affirmed the court applied correct standard—Fullenwider presumption applies and the lower court properly analyzed acts showing adversity |
| 2) Whether appellants proved a prescriptive easement | Appellants: decades of use, maintenance, and lack of express permission show adverse, overt use for statutory period | Gardners: use was permissive, maintenance was performed per owner’s rule and appellants paid/acknowledged owner’s control; testimony lacked specificity | Court: Affirmed—use and maintenance insufficiently overt/adverse to overcome presumption of permissive use; no clear error |
| 3) Credibility findings (Abney and Kyle) | Appellants: court erred in finding these witnesses less credible | Gardners: credibility determinations were within the fact‑finder’s province given inconsistencies and evasiveness | Court: Affirmed—trial court’s credibility rulings stand; no basis to overturn |
| 4) Public easement | Appellants: Gardners acquiesced to widespread public use so public prescriptive easement exists | Gardners: use was limited (mainly seasonal hunters/fishers), infrequent, and road often impassable; not public use | Court: Affirmed—use was not open/continuous/public for seven years; court’s on‑site inspection and factual findings support denial |
Key Cases Cited
- Fullenwider v. Kitchens, 223 Ark. 442 (1954) (presumption that passage over unenclosed/unimproved land is permissive and requires overt hostile acts to create adverse claim)
- Merritt Mercantile Co. v. Nelms, 168 Ark. 46 (1925) (discussing hostility of conduct in prescriptive claims)
- Anita G, LLC v. Centennial Bank, 575 S.W.3d 561 (Ark. App. 2019) (discusses presumption of permissive use for unenclosed/undeveloped land and need for overt adverse acts)
- Carson v. County of Drew, 128 S.W.3d 423 (Ark. 2003) (prescriptive easements are disfavored and require adverse use under claim of right for statutory period)
- Gazaway v. Pugh, 12 S.W.3d 662 (Ark. App. 2000) (example where public easement was found based on heavy, year‑round use distinguishing facts here)
- Clark ex rel. Clark v. Eubanks, 570 S.W.3d 506 (Ark. App. 2019) (time alone cannot convert permissive use into prescriptive right)