*1 Carson, CARSON, Carson v. COUNTY Denise and Scott Francis Eubanks, DREW, David T. D. Hickam Eddie Billy Hyatt, 02-853 Court of Arkansas
Supreme delivered November Opinion *3 P.L.C., R. Gordon, VIrden, Victor and Caruth & Harper; by: Denniston, L. for appellants. Jeannie P.L.C., Hashem, III, &
Gibson C.G. Gibson by: for appellee. Arnold, W.H. “Dub” Francis Chiefjustice. Appellants, Carson, and Denise a decree entered the Drew appeal by Circuit Court that a County public prescriptive turnaround, exists area, in a and roadway, also landing, known as land Gee’s on owned the Carsons and Landing, by enjoin- the landowners from ing with the blocking interfering public’s of the easement. On the Carsons that the trial court appeal, argue erred it when decreed that the has public of unre- acquired stricted use of their This case certified was to us from the property. hence, Arkansas Court our to Ark. Appeals; jurisdiction pursuant Ct. We l-2(d). R. affirm. Sup. turnaround, ato landing, case involves access roadway,
This in Drew the Saline River area on and around County, and parking title Denise Carson’s father received from Arkansas. The Carsons however, been a 1999; the had part land question land, the use of to the since-1901. Prior Carson’s Carson family with the along used the road in members of the question, public areas, turnaround many and adjacent landing The decades, road was landowners. unhindered predecessor a brief of time of Drew maintained County The road is visible on road the State Highway Department. maps. erected obtained the after Carsons they property,
Shortly a road on their public across property prevent gate and other unwanted activities. County littering, trespassing, an the Carsons to of Drew injunction open sought requiring 22, 2000, held March and the A on remove gate. hearing order, trial issued requiring judge temporary restraining Carsons to road to public. open restrict left the road but The Carsons open attempted access to the remainder their by erecting the Saline River. The fences in the area borders County court, from the trial Drew another order requiring sought A was held remove the Carsons to fencing. hearing May an from which issued order directing judge their to remove fences. 30, 2001, *4 15 and were held on August
Hearings August of the The trial issued and a final issues. findings judge disposition entered, decree the trial wherein enjoined judge permanently the around, with use of the turn- interfering roadway, area.' On the Carsons argue landing, appeal, it decreed that had that the trial court erred when of use of their a unrestricted acquired right property. record, de novo on the
We review cases chancery of fact court and we will not reverse finding by chancery McWhorter, unless erroneous. McWhorterv. 351 Ark. it is clearly 1, 622, v. Ark. 2 408 339 S.W.3d (2003); 97 S.W.3d Myrick Myrick, we due In court’s findings, 60 (1999). chancery give reviewing to determine deference to court’s position superior be to their accorded witnesses weight credibility of cred- Id. facts and determinations witness testimony. Disputed
625
Id. A
is
are within the
of
fact-finder.
ibility
province
when,
it,
erroneous,
there is evidence to
although
clearly
support
on the entire evidence is left with a definite
court
reviewing
and firm conviction that a mistake has been committed. Owners
354,
v.
346 Ark.
A be not one may gained in fee of the land law in manner similar possession by operation Woods, to adverse OwnersAssoc. See possession. supra; Of Foxcroft 714, 1499, 443, Paul Arkansas Titlesto Real Jr., at Property§§ Jones Hunter, (1935 323, 906-09 & v. 1959); 282 Ark. 668 Supp. Neyland 530 S.W.2d is the (1984) of title to a (“Prescription acquisition which is neither nor visible property right tangible (incorporeal hereditament) an adverse user as from the distinguished acqui sition title to the land itself adverse hereditament) (corporeal Like adverse . . possession.”). possession, easements. “prescriptive law, are not favored in the since work they necessarily correspond forfeitures of other 25 inglosses persons.” Am.Jur. Burnette, 2d Easementsand Licenses 45 Potts v. (1996); 301 N.C. § 663, Arkansas, 273 S.E.2d In (1981). 285 it is generally required that one an easement show a asserting by prescription by prepon derance of the evidence one’s has been adverse to true owner and under a claim of Manito statutory period. 271, woc Inc. v. 819 Ark. S.W.2d 275 Remanufacturing, Vocque, Hunter, Raines, 412, v. (1991); v. Neyland supra; Teague This court has said that the (1980). statutory of seven for adverse period possession applies Vinson, Hunter, easements. v. Neyland Duty supra; O’Neal, S.W.2d 318 (1958); Brundidge S.W.2d That (1948). for adverse statutory possession set out in Ark. Code Ann. also 18-61-101 See Ark. Code § Ann. 18-11-106 as Act 776 of (Supp. 1999) (enacted 1995). §
626 the user is necessary of on
Overt activity part use and that an adverse of the to the owner make it clear Woods, Stone Assoc. supra; exerted. Owners claim are being of Foxcroft 392, Mere Halliburton, (1968). 425 S.W.2d 244 Ark. v. claim into an adverse cannot use of an easement ripen permissive action, notice. Manitowoc the owner on which clear places without Kitchens, 223 Fullenwider v. v. Inc. Vocque, supra; Remanufacturing, circumstance or act 442, Some (1954). 266 S.W.2d with, which indicates that to, the use in connection addition a to establish right by use was not merely permissive required 681, 227 Ark. 301 S.W.2d v. O’Bryan, Craig prescription. use is adverse or whether a permis The determination (1957). are controlling and former decisions rarely a fact sive is question, Louis Vinson, St. Southwestern Ry. issue. v. supra; this factual Duty 278, v. Wallace, (1950); 229 S.W.2d Brundidge Co. v. the burden of showing by bears O’Neal, plaintiff supra. adverse, not has been that there of the evidence preponderance Assoc. Owners use of the land question. permissive, Of Foxcroft O’Neal, v. Vinson, v. Stone Woods; v. Brundidge supra; supra; Duty Halliburton, supra. Kitchens, court stated: this
In Fullenwider
of this court
many
regarding
A
opinions
consideration
clear, in
lands makes it
our
over
acquisition
right-of-way
are in harmony
exists.All our opinions
that no real conflict
opinion,
land,
of a
over
passageway
viz.:Where there is usage
on one point,
otherwise, it that
continues
usage
whether it began
permission
has actual knowledge
after the landowner
years
for seven
openly
continues for
interest or where the usage
is adverse to his
usage
are
usage
and circumstances of
prior
seven
after the facts
to know the
usage
would be presumed
such that the landowner
adverse,
into an absolute right.
then such usage ripens
The use
Kitchens,
Turning Fulbright, the for Drew with Arkansas Maintenance County Superintendent testified that the road was the state Highway Department, time, 1984. 1977 until that the highway system During maintained Saline to the River. Highway Department roadway Rawls, Marion a Drew Road County employee Department and off maintained that from 1956 led through roadway to the bank of the Saline River and had used the turnaround area for road Eddie Eubanks testified that he had used the area graders. to D. Hickam testi- fifty-five sixty years, uninterrupted. Billy fied that he used since he was a had child and seen roadway other using people roadway. father, no
Leo
Denise Caron’s
made
effort to
McCarty,
close the road
to
accessbefore he sold
deny public
to his
The
have
1999.
not rebutted the
daughter
simply
road,
turnaround,
and
proof
public’s
ramp,
area was
to establish
adverse
parking
sufficiently
prescriptive rights.
In order for
owner to
his
to revoke the use
preserve
limitations,
he must maintain his control
beyond
over the
some overt act
the use
as
continued
way by
showing
Inc.,
one. Manitowoc
permissive
deter
Remanufacturing,
supra.
mination of whether the use of a
adverse
permissive
fact,
is a
and a
trial court’s
to the
question
finding
respect
existence of a
easement will not be reversed
this
court unless it is
erroneous.
clearly
Gazaway Pugh,
App.
297,
The trial certain court from a March incorporated findings 24, 2000, 11, 2003, into its March hearing findings, namely: 22,2000,
6. Evidenceat the March showsthat individual hearing and the have Plaintiffs had access the Saline River, use of the road in and utilized boat question, ramp and and the landing and turnaround areafor more than- sixty(60)years. road, turn- and the
10. The boat landing ramp, area of the convenientaccess only around area are the individualPlaintiffsand generalpublic. SalineRiver 11, 2003, in the March that the The trial court further found consist- have known that the Carsons knew or should upper landing, the end and turnaround area connected to of a boat *7 ing ramp, parking road, used The trial court also of the was being adversely. county and and turnaround and found that the use of the boat ramp, landing has been continuous for a area the general public into adverse to more than seven and has years long ago ripened and is adverse to the owners of the currently the property previous defendants. decide if the the we must now
From foregoing, appellees and evidence to show that the sufficient public openly presented for seven used the years continuously roadway question more, and if the facts and circumstances surrounding usage have it was such that the knew or should known were the evidence before the trial court adverse. We conclude its decision that the road became sufficient public support easement by prescription.
The trial court’s that an easement by prescrip road, turnaround, of the existed as to the tion favor public area, is more than landing amply supported to the trial court evidence. Certainly, testimony presented had used Gee’s demonstrated that members of community fact, area in excess of the seven In Landing required. evidence demonstrates that the members of the had used public for around Because there was an sixty years. acquiescence property use, it on sufficient notice to longtime operated put appellants Woods, Assoc. “of a claim of Owners right.” supra; of Foxcroft Therefore, Zunamon, community’s Gazaway, supra; supra. easement. met actions property required did The Carsons next that even if the argue easement, meet the for a requirements can such. The Arkansas dealt not Court Appeals acquire with a similar issue in App. Gazaway Pugh, case, In that from the trial S.W.3d 662 (2000). Gazaway appealed that a court’s order finding “public prescriptive existfed] road and turn-around area on land owned in a by Gazaway gravel and others and the landowners or inter- enjoining blocking with the use of the easement.” fering public’s Gazaway, at at S.W.3d 663. At issue was the “access to a boat App and an area known as ‘Schaeffer’s on the ramp Little Black Eddy’ River near Pocahontas.” Id. The court of found: appeals
We find this to be a close case because almost all of very witnesses were appellees’ with the personally acquainted Gazaway and their family, about their use of the testimony was not in any way inconsistent with the that the scope permission Gazaway at least family extended to them. We implicitly also find no signifi cance in the road; fact that the county graded graveled there is no that the dispute county this regularly provided service for However, private landowners. Cole’s Gary testimony decisivelytips the balance in favor of the His account of the appellees. sheer number of hunters and fishermen at the present eddy-suggests Nelson, not all of the use was In by family friends. Kimmerv. S.W.2d (1951), court held supreme that the original restriction in the nature of a permissive passagewayacross *8 the land of another be deemed to have may been abandoned if such use is not to objected by landowner after a of time. long passage Kitchens, Fullenwiderv. Similarly, court supra, supreme applied announced in principle Kimmer to a lower court’s uphold finding that use of a road wild and through land for unimproved over thirty years overcame the that use of the presumption land was case, In the permissive. instant we find similar to acquiescence use, and longtime therefore we hold that the that the presumption permissive had been overcome. 302-03, 69 Ark. At 12
Gazaway, S.W.3d at 666. The court App. also found that evidence appeals the trial court’s of a supported grant from the thirty-foot road to the passageway Arkansas River. In the hand, case at turnaround, there was use of the long-time roadway, therefore, and the area landing, public; a over the area public acquired right-of-way through prescriptive easement.
The Carsons also the trial court’s that appeal the trial court’s of a is an imposition easement uncon stitutional However, without taking the trial court compensation. did not rule on this issue therefore this issue is not It is preserved. well settled that to for preserve even constitu- arguments appeal, ones, Baum, a below. Doe v. must obtain ruling
tional the appellant 476 (2002). 348 Ark. S.W.3d Affirmed. dissent. JJ., Imber,
Glaze
Arkansas law has been
dissenting.
long
Justice,
Tom Glaze,
land,
of a
over
settled that where there is usage
passageway
otherwise, if that
continues
it
usage
whether
began by permission
has actual
after the landowner
knowledge
for seven years
openly
to his interest or where the
continues for
is adverse
usage
usage
are such
after the facts and circumstances of
usage
seven
prior
was
would be
to know
usage
landowner
presumed
adverse, then such
into an absolute right.
usage ripens
(Emphasis
Kitchens,
442,
Fullenwider v.
266 S.W.2d
added.) See
789,
the rule that easement are limited to rights public thoroughfares and there was no used travel authority extending purposes, to a area used members of sporadically public. with the the Zunamon court ruled the Consistent Clarke holding, used evidence showed that an additional thirty-foot also, to the river. access See Gazaway gain Pugh, hunters and fisher- (2000) (where App. men sued landowner both seeking public prescriptive and an on the landowner injunction interfering plain- tiffs’ use of road). *9 decision, Arkansas law
Until today’s regarding pre- public has been in cases where rights only thoroughfares, scriptive applied or easements for travel were issue. None of roadways, purposes the cases cited involves of an majority opinion taking owner’s but a for anything thoroughfare property for failure to cite travel reason authority extending purposes. to such as lots and turn- rights things public prescriptive relied in the arounds is best rule explained are not favored in easements majority opinion “prescriptive losses or law, work necessarily corresponding since they 2d 25 Am. other See forfeitures persons.” Jur. Licenses 45 Easements and § to allow a decision I concur with majority While river, to the I disagree for ingress egress its an easement its decision beyond extending part The law definition of a thoroughfare. traditional have unnecessarily easement has been expanded, taking as a of this court’s been burdened result acquiescence what has become essentially Drew their County campground. this dissent. Imber, J., joins S. Linda His William CURRY and Curry,
Howard W. Wife His and Delores K. Thornsberry, THORNSBERRY Wife 03-285 of Arkansas Court
Supreme delivered November Opinion