*1 “swap” “conveyance” as a between a and brother inescapable. possibilities sister is When two are these only possible one line remained. The fence elminated, possession and Mefford was to which both took so Smith conclusively the two tracts that between presentation correctly chancellor foreclosed the any testimony subject. further on that
I would reverse remand with directions to grant sought by appellants. relief court joins I am Harris, authorized to state that C. J., this dissent.
J. N. MASSEE C. v. Bruno Jenness Massee wife, SCHILLER, Bruno D. also known Schiller B. E. Schiller, Berta wife, Schiller 5-4337 420 S. 2d 839 W.
Opinion delivered November 27, 1967 *2 appellants. John B. Hainen, for appellees. & Shaw Shaw, J. Mr. and Justice. Schiller own Mrs. Fred Jones, most of the Northeast Quarter of the Quarter Southeast Township Range of Section 36 in 4 South of 32 West County, in Polk and Mr. and Arkansas, Mrs. Massee own forty-acre immediately tract south of the Schiller appeal tract. This is the second court from de- County Chancery involving crees the Polk Court parties concerning twenty same the south feet of the Schiller tract.
In the
first
Massee v. Schiller,
cree that case bar, restate the case at we and decree in issues pertinent as follows: facts years ago roadway Many had been in use over length twenty entire Schiller of the south feet of tract and fences had been each side of- erected roadway forming lane lane. The east feet long had been fallen into disuse and had abandoned roadway, west but Massee continued to use the ingress egress feet for from a house on his own tract land. out east 822 feet Schiller cleaned of the old lane and erected a on the new fence south enclosing portion old side, thus *3 pasture. within lane his cow The west 498 feet roadway by been still in had not was use Massee and brought disturbed when Mr. and Massee Schiller, Mrs. against quiet suit title themselves Schillers twenty the entire south feet of the Schiller tract. The chancellor found from the evidence in including testimony appointed sur- of a court veyor, that the Schillers owned land no “South of survey old established and line as fence found be the forty- Court to division line between these two acre tracts.” forty-acre Title to the south tract was quieted and confirmed in Mr. and Mrs. Massee decree, chancellor’s insofar as it relates to Schiller -the present litigation, tract and to the is as follows: (B. Schiller) “Bruno E. Schiller, E. and wife, Schiller, are the Berta owners of the Northeast (NE% SE%) Quarter of the Southeast Quarter Township Range Section 36 in 4 South West County, in Polk tract Arkansas, title quieted against of land in the defendants as plaintiffs, N. wife, J. Massee and Massee, Jenness C. subject to a across side South forty-acre g,s the West 498 said tract, feet (Emphasis ours) same is now located.” (Massee decree was affirmed this court, v. Schil- supra) portion ler, and it is the italicized of that decree gives present litigation. rise to the
Following onr of affirmance, mandate re- Schiller moved old on each fences side of the easement over twenty the west 498 40-acre feet of the feet of his south tract along property and erected a new fence his line placed south guards of the easement and cattle in his each at end of the easement. brought present trespass Massee action for al- leging upon that Schiller has encroached the Massee by building land a new fence some 10 to feet south survey along the old fence line south of old roadway, by removing along the old fence the north side of thereby enclosing the easement, the easement into pasture; permitting roam cattle to over the easement by placing guards thus said easement, interfering with Massee’s free use the easment. hearing
After all the evidence, the chancellor en- tered a decree as follows:
“IT THEREFORE, IS BY THE CON- COURT, AND DE- SIDERED, ORDERED, ADJUDGED CREED that wife, defendants Bruno Schiller and *4 Berta Schiller, should have use of their land full subject prescriptive plain- to easement of the ingress egress. tiffs for and Old fences are not to plaintiffs’s expense, be restored. Plantiffs are, at guards to build and maintain cattle at the West end of the 498 foot lane and at East end of said lane. can Plaintiffs to use the said lane. continue given right Plaintiffs are maintain the lane to deposit by gravel by grad- from time time and ing. granted Plaintiffs are maintain a walk-way guards. and rail across the two hand parties litigation, plaintiff de- and this “Both enjoined restrained and both, fendant each are, and specified rights interfering from herein party. the other plaintiff sought by parties
“All other relief specificly denied. defendant, paid in this cause are to to date “Court costs which each plaintiffs by one-half defendants, ’’ may issue. execution Upon appeal Mr. and Mrs. decree, from this upon points rely following for reversal: Massee following in “1. The Court Prior Su- erred preme Opinion judicata on the was res Court which permitting further encroachment law the facts, appel- expense enlargement rights at lants. permitting in in a reduction
“2. The Court erred appellants rights prescriptive to use es- unimpeded by and cattle tablished lane cattle, guards. permitting in the erection
“3. The Court erred contrary established law new fence case.” disposing points difficulty one and
We no in find survey maps appellants. intro- relied on three surveyor testimony duced as exhibits 8 and 9 to at the Woods’ true trial the former show the forty-acre to be line between the two some ten tracts line on the south to twelve feet south fence of the old being lane, side of the old the deviation old survey appellee trial, line and not the line. In the second testified that he built his fence one foot inside Schiller survey line as marked out the court and staked appointed surveyor. conclude that the did We original not violate the affirmed decree, as *5 erecting their fence foot within bound- court, in one survey plats ary line as indicated on introduced ex- as original of this and 8 and 9 trial we hibits in holding. conclude the chancellor err in did not so
577 gives point The second relied-on us the most diffi precise culty. question appeal The this whether is along must re-eréct a north side keep originally the easement where in order to it stood pasture easement, out of the their in their and cattle may along they or whether maintain their fence their property taking south of line thus easement, important pasture. into cow easement part their The most question appellees may of this is whether maintain guards prevent at each end the easement pas straying cattle from from the confines of ture and from their own land. chancellor held that may agree. he done, we placed agri-
As new are or fence, lands under into production, cultural thickly more communities become acquisition roadway settled, easements prescription guard less_frequent. becomes The cattle extensively known well device used as a substitute gate comparatively since the recent exit of the horse buggy days, consequently, point most of cases in gates concern guards, and bars than cattle rather or stock problem
but involved is not new to reported courts. The cases are little value in deter- mining precise question before because us, however, supporting decisions are as varied facts them.
We are not unmindful line of decisions from general proposition seeming other states to follow the prescriptive that the easement is measured gained by pre its use and where a has been scription, during erected bars have been no requisite term, can none afterwards be erected. Melton v. v. 2d Donnell, 19, 114 49; Tenn. W. Shivers S. Eq.
Shivers,
32 N.
578;
J.
Switzer v.
Armantrout,
App.
Murphy,
Ind.
19 N.
858;
E. 2d
Bolton v.
Campbell,
591, 127
335;
Utah
P.
Bishielbs v.
We think rule stated Restate- Property-Servitudes, ment the Law, § 481, as fol- *6 lows: subject possessor easement to an of land
“The against privileged, the by prescription is created of the make uses to such easement, owner of the incompatible with the are not servient tenement as by authorized the use easement.” of the restatement In the comment this section under find follows: we privileges
“Subject the ease- owner of of the possessor retains a servient tenement the of ment, possession. privileges go In so the usual easement far as his with the owner the relations possessor tene- of the servient are concerned, privileged his land which uses ment is to make all by authorized the ease- do not interfere with the use ment.
[*] # # diffi becomes more As extent owner to relations between the discover, cult possessor tenement be servient it of the principle subject governing increasingly to come that'neither use unreasonably interfere with shall * # * by An interference the land the other. by by one with the the other which reasonable use may an unreasonable in become in one situation -possessor Thus, other. as the land servient may proper developed highly it more becomes require to an easement to submit to owner im would have been inconveniences which it proper required submit before the him have development. as to additional The determination an interference what unreasonable constitutes part possessor servient tenement with the the owner of ease use of land depends primarily upon a consideration of ment adyantage use and him of his relative desired ’’ disadvantage to the owner the easement. The extent and limitations of an easement created conveyance conveyance usally are fixed prescriptive easement, set ont its is in so it terms, *7 difficulty mnch as we arises here, the one have where rights measuring of the of the easement owner rights possessor of the servient and the of the estate, respective adjusting and rights. between conflicts their right Where has a land use owner subject prescriptive right it, travel of another to designated a well defined the land, route across some degree expected inconvenience is and tolerated overlapping rights, in the exercise of these con- and the flicts rights, that arise in are exercise such measured of interference of with reasonableness one depends the other. What is reasonable not reasonable or on the facts and is a each case circumstances of may matter on minds men which the reasonable differ. appellee
The chancellor held that had a erect his fence on line of the ease- south may guards and that ment, cattle each be installed at agree end holding of the easement and we with ap- the chancellor. chancellor that the further held pellant guards is to build and maintain cattle each at agree end of the and in this we do easement, not with the chancellor.
During running prescription in this case, guards no cattle were or constructed maintained across appellants the easement and none were needed required through for their use and benefit. It was appellees guards the acts of the that cattle became necessary appellees at all in this and if now desire appellants’ right-of-way pur- to use pose, they must do so in manner that will un- such not reasonably appellants’ appellees with use, interfere so provide unobstructed continued
must the means for appellees’ through passage appellants new for the appellees right-of-way If at easement. both ends appellants’ right-of-way fence, are to enclose guards must and maintain construct provided walk-way in the hand rails appellants chancellor’s and in such manner decree, uninterrupted may enjoy travel over unobstructed roadway along their easement. guards such, involving cattle find no We cases concerning bars have but similar situations Mississippi many In the been the courts times. before University Mississippi Miss. Gotten, v. case the court said: 522, 80 So. yet question to answer. Conced- another “There is *8 say ing erection we that the easement, can appre- gate across the maintenance of the unreasonably ciably limited, with, interfered enjoyment easement? phase
“Upon
are
of this case the authorities
harmony,
the facts of
not
but we believe
appears
each case
control. If it
should
unreasonably
gates
interfere
erection of
will not
opin-
enjoyment
it is our
with the
easement,
justified
is
ion
servient estate
that the owner of the
gates.
speaking, every
erecting
Generally
owner
right
perfect
provided,
them,
of lands has a
to fence
appreciably interfere
course,
to
so will
do
not
rights
with vested
others.”
E. 2d
In
224 N.
Chesson v.
C.
Jordon,
289,
S.
following language:
we
find the
are at variance as
“While the authorities
to
right
right-of-
of an owner of land burdened with a
way acquired by prescription
gates
erect
across
to
way,
weight
authority
is in accord with
holding
right
that such a
in the
exists
case of
agricultural
land.
In *9 main- gates had been and bars 367, 2d Powell, S. W. running through right-of-way the tained across the prescription claimed owner the servient prescription, in but right instead was sufferance case the court said: passway if governing even cases, our rules “Under concerning the ex- ignore the evidence should we appellants passway, gates across istence gates. In Bridwell maintain would be entitled to still page Ky. 166, at 227, 165, S. Beerman, v. W. it was said:
“ long passway by use over acquire ‘If one should a pass- neighbor, through this of a the fields way estate of the servient the owner unfenced, was gate gates right or across a erect have the to would way fencing in divid- his farm or aid him in ing up it into fields.’ property
“Appellant in fee as the owner of the in as this manner, entitled it in a lawful to use doing pasture this as But in his livestock. destroy he cannot the owner of the servient estate, rights unduly es- obstruct the dominant property. over the tate created the easement permit and unrestrict- must free owner servient passway by dominant ed the owner of use of right his so as to latter must use estate while the possible servient little burdensome estate.” early Glidewell, v.
In case of Hockersmith our own enjoin servient suit was instituted 153 S. W. right-of- maintaining across road from bar owner grant prescriptive way easement. The chancellor over injunction reversing the chancellor, and in this ed said: court [W]e
“. evidence shows . do not think that the . by ap- placing the road that the of the bar across keeping pellants, purpose off horses crop, material an of such a was obstruction of their enjoy- as to reasonable 'character interfere appellee.” ment of the easement except conclude was correct We that the chancellor requiring appellees, appellants, rather than in citing guards. to construct In and maintain the supra, pertaining and bars erected cases, imply rights-of-way, we do not any case, or of the servient estate owner gates or bars case, would to erect other have the *10 unreasonably anything or else that would interfere with enjoyment of useful the easement. Appellants’ in easement this case prescription by by was established and fixed court de- which been cree has this court. affirmed ease- ownership appellants’ ment of runs land and its use continues free of interference unreasonable ownership the servient until the owner the ease- merged ownership is ment with the es- the servient or until the owner. tate, abandoned its simply building guards We hold that end of at each easement in bar, the case at does unreasonably appellants’ not interfere with use under facts of this but easement the we hold duty maintaining building guards the cattle way provided with walk and hand as rails, in decree, upon appellees. falls cause is
This remanded the trial court for the entry aof decree not inconsistent with this decision. parties Each will bear their costs. own Affirmed modified. Fogleman J.,C. JJ.,
Harris, and Byrd, dissent. respect- dissenting. John A. Justice, I Fogleman, fully dissent. I cannot understand how trial either majority or court court arrives at result permits approves which action of erecting new the easement south appellants. agree appeal1 I that a review of the first understanding in this ease is essential to an issue of-the agree majority’s analy- involved here. doI not with the appellants sought, among sis of facts case. Then, things, a other decree:
1Reported Massee 2d Schiller, 237 Ark. 558. v. S. W.
584 appel- against claims Quieting all of title
1. their width of across the entire to a 20-foot lane lees Township 4 South, 36, Section the of SE¼ NE¼ Range West; 32 replace appellees fence in its for- Directing a 2. approxi- of mer side the location north the mately the lane, feet end 790 of east of place good was at as it in condition same time of removal; Restraining from farther relocation 3. any man- from in fences and interference of said including appellants’ lane, of ner nse moving permitting to come fences through the lane. into and Appellees prayed in that their title he answer their Township quieted 4 of Section SE¼ NE¼ subject Range roadway easement 32 to a North, South, appellants part that lane which in over favor of of along dividing the two forties extends line between approximately a In amend for distance 530 feet. of appellees prayed ed answer, that the court order boundary upon the true bound line fences be located subject only roadway ary easement, “which line, plaintiffs using, these admit but that are defendants this be across the south 20 feet should of Township west 498 feet Section 36 in SE¼, of the NE¼ * * Range 4 32 West South, party permitted The trial court ordered each survey a to make without interference of the other. At request surveyor appellants, county made survey, survey This Schiller. located a witnessed lane completely across the south road side the Schiller tract described as the 36 in Town Section NE¼ SE¼ ship Range varying 32 South, width from West, roadway was a to 24 feet. There fence north this appeared thereof. The fences one south to have way were tract, but extended all once point disrepair where east of the down and state some Massee tract from this lane entered the boundary line. For the west 495 to 498 feet east of the fence was the south west 498 feet, north pasture. road the south On side the Schiller partially way, north removed. The had been feet the true southwest corner *12 was 32 north of fence thus, fence was, the 36. south SE¼, Section The NE¼ approximately The 12 north of this true feet corner. angled slightly roadway and fences toward south the they proceeded but remained eastward north all roadway had into line. south fence fallen and true partial decay disuse east of the and turn-off the house, with an old but north connected Massee the fence crossing grown tract. had fence up the entire Trees 40-acre boundary old true between the south fence and the (1) the The trial that established line. court found bounadry tracts “the lime the two was between 40-acre (2) appellants’ line divides” them; which old fence strip twenty 822 claim to a feet in across the width east upon appellees’ laying wholly feet without land was appellants (3) merit of because had abandonment; prescriptive ap roadway purposes easement for across pellees’ place lands in the it on then located the was along the south side of the west feet of 498 NE%- SE14. (4) appellees claim tract; the 40-acre no owner had ship SÉy^ “south the old established SE*& fence survey and line court to be division found between line two 40-acre tracts.” This was these decree question this affirmed court. There be no that can south fence or was def line lane initely ap boundary determined to be line between pellants appellees and for the west feet each tract. appellees
After mandate of this was court filed, boundary cut down the trees took south fence, pasture along fence north this down roadway line put a new fence 10 or 12 feet some south of the old fence which line to be had been determined appealed In line. its now decree from, the disregarded previous court
trial decree its and the man requiring date of court not this removal along new at property least fence, line the old roadway. line south side of the I would reverse and remand with directions en- requiring appellees ter a any decree to remove all fences south of the old fence line south of the road- ’ way west feet of lands. I am authorized to state C. J., Harris* join
Byrd, J., in this dissent. dissenting. My Conley Justice, dissent is Byrd, upon premises permitting based that the court is acquired by appel- material alteration the easement guard gate that a lants; cattle but form of a another gap; roaming road, on a if not *13 type a obstruction, is a at least nuisance. Craig O’Bryan,
In 227 Ark. 301 687, v. S. W. 681, (1957), 2d 18 said: wo general
“As a rule, when of an the character ease- ment is once no material can be fixed, alteration physical made in which conditions are essential to proper enjoyment except by of the easement agreement.” logic permitting of not material alteration physical
in the essential easement is conditions to an appel- amply present in demonstrated Here case. acquired by prescription lants had an easement to the important a road use of within lane. The element is improvements existing property not the of either party, right but the extent of the to utilize the easement. knowledge property It is common that the access to ma- many terially instance, affects market value —for its people pay property will for at road, more end of a
587 improved public property along always road an is property more valuable than back off road. Conse- logically purchasing quently, it follows im- that proving rely property one should to be entitled rea- permanence Having sonable as it exists. access through pasture proposed drive a cow reach a materially many home site would affect the desires of people improvements. to make substantial Therefore, opinion, my today’s materially decision will reduce the property many market value of the citizens, our through years rely who quired have come on roads ac- prescription. agree majority guard
I with the that a “. .. cattle expensively a well known device used as a substitute gate Consequently, for majority opinion ...” runs many counter to the decisions of this court which hold acquiescence years for than more seven in the exi gate stence of a prescrip across a road established tion prescription amounts right. to abandonment of the See Nelms v. Steelhammer, 225 Ark. 283 2d S. W. (1955), Lusby Herndon, v. 509, 361 Ark. (1962). only S. 2d 21 W. Not is that effect majority opinion, precedent decision but support quotes position, its and relies on cases from jurisdictions specifically permit placing other which gates private ways. Reedy, In Brooks v. (1966), Ark. 271. 407 S. W. 2d 378 we held parties claiming by prescription the road lost or aban doned their thereto when Brooks enclosed his land placed gates period across the road for a in excess years, though open of seven even were left *14 during year, especially during certain seasons the of acquiescence winter months. If the in the existence of gap gate statutory period an unlocked wire for the years pre of seven amounts to of a abandonment scriptive apply how much easement, less this to does guard? appears the existence of a cattle It to me that property permissiveness owner asserts the of passage forcefully in one instance inas the other. opinion majority dangling
The leaves of the issue wheth guard er the maintenance of a an cattle ease years ment for seven result in abandonment of will an the easement, or whether one a uses road where who guard acquire cattle is can ever an maintained easement. I citizenry think the of this state would best be served by treating guard gate, recognized a cattle as a as is opinion, respective majority rights and the parties should be determined in with our accordance existing gaps. law on proof in The the record shows that Miss Sarah appellants, re- of sister and sister-in-law Crawford, property, roaming sides their that on the an road cattle road amounts obstruction of the to prior 1 of her. No. to While Initiated Measure to (the Law) argument might have so-called Stock not appears people tenable, been it that this state, by prohibiting roaming public roads, cattle on recognized have if cattle not an obstruction be, to use the roads, at least nuisance. As far as an in- private dividual’s use of a ing road is roam- concerned, certainly on the road home cows is as ob- his public roaming noxious and obstructive as on a road would be.
Finally, accept majority theory even if I should permitting the trial has court some discretion in guards private way, use aon I think the trial court abused its discretion this instance. conclusively record shows road that the 20 feet issue, along appellees’ wide, extends southern only distance of 498 feet. This total area amounts roadway, less than one-fourth an and when the acre, appellants granted grade which have been taken maintain, out of the area little involved, practical or no pasture benefit from the use area as a appellees except may
will result as it add existing fuel to the been between feud has these *15 parties. would
Therefore, I reverse and the ease remand with directions to take road out of their pasture. J., J., C. in dissent. join
Harris, Fogleman, CONTINENTAL GEOPHYSICAL CO. v.
Jeff ADAIR et
al
5-4319
Opinion 27, delivered November
[Rehearing January denied 1968.] & for appellant. Woods, Daily Evans, appellees. A.
Jeptha