Ark. Cnty. Bank v. Pin Oak Hunting Club, Inc.

• Decision Date: 07 September 2022
• Docket Number: CV-21-303
• Citation: 2022 Ark. App. 314,651 S.W.3d 168
• Parties: ARKANSAS COUNTY BANK, DeWitt, as Trustee Under the Last Will and Testament of Godfrey Thomas; Arkansas County Bank, DeWitt, as Trustee of the Godfrey Thomas Testamentary Trust; Godfrey Thomas Foundation, Inc.; Tate Pfaffenberger; Les Pfaffenberger; Turner Farms IV; Turner Farms Parternship ; and Roger Turner, Appellants/Cross-Appellees v. PIN OAK HUNTING CLUB, INC., Appellee/Cross-Appellant
• Court: Arkansas Court of Appeals

2022 Ark. App. 314
651 S.W.3d 168

ARKANSAS COUNTY BANK, DeWitt, as Trustee Under the Last Will and Testament of Godfrey Thomas; Arkansas County Bank, DeWitt, as Trustee of the Godfrey Thomas Testamentary Trust; Godfrey Thomas Foundation, Inc.; Tate Pfaffenberger; Les Pfaffenberger; Turner Farms IV; Turner Farms Parternship ; and Roger Turner, Appellants/Cross-Appellees
v.
PIN OAK HUNTING CLUB, INC., Appellee/Cross-Appellant

No. CV-21-303

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 7, 2022
Rehearing Denied October 19, 2022

Hyden, Miron & Foster, PLLC, by: Lyle D. Foster, Guy W. Murphy Jr., Little Rock, and Sam Patterson; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants/cross-appellees.

Ark Ag Law, PLLC, by: J. Grant Ballard, Little Rock, for appellee./cross-appellant.

STEPHANIE POTTER BARRETT, Judge

This case concerns the ownership of real property in Arkansas County on which a levee is situated and whether appellee, Pin Oak Hunting Club, Inc. (Pin Oak), is entitled to a prescriptive easement across property owned by Thomas entities appellants and leased by Turner tenant appellants to access a portion of property owned by Pin Oak. Appellants Arkansas County Bank, DeWitt, as Trustee under the Last Will and Testament of Godfrey Thomas and as Trustee of the Godfrey Thomas Testamentary Trust; Godfrey Thomas Foundation, Inc. (collectively "Thomas entities"); Tate Pfaffenberger; Les Pfaffenberger; Turner Farms IV; Turner Farms Partnership; and Roger Turner (collectively "Turner tenants"), appeal from the Arkansas County Circuit Court's finding that Pin Oak established a prescriptive easement; alternatively, they argue that if an easement has been established, it should be an easement in gross, not appurtenant, and specific limitations consistent with prior use should have been imposed. On cross-appeal, Pin Oak argues that the circuit court erred in finding that the Thomas entities adversely possessed property owned by Pin Oak and in denying Pin Oak an easement by necessity over the Thomas entities’ property. We reverse on direct appeal and affirm on cross-appeal.

Pin Oak owns real property located in sections 14 and 15, township five south, range four west, in the southern district of Arkansas County, Arkansas. The Thomas entities own real property lying north and east of, but adjacent to, the Pin Oak property. The Turner tenants lease the Thomas entities’ property at issue in this appeal. A levee runs roughly along the southern border of the Thomas entities’ property and the northern border of Pin Oak's property. The controversy began in late 2016, when the Pfaffenberger brothers, who subleased a portion of the Thomas entities’ property from Roger Turner, a tenant of the Thomas entities, blocked the road and levee Pin Oak used to access the Hot Springs Club property, which it purchased in 1989, with earthen berms across the roadway and levee road, and, according to Pin Oak, continued to interfere with its right to use and access its property by blocking access to the levee and road that had been used by Pin Oak for many years. A survey commissioned by Pin Oak and the Thomas entities revealed that a portion of the levee was situated on Pin Oak property.

651 S.W.3d 172

Pin Oak filed suit against the Thomas entities and the Turner tenants, requesting a declaratory judgment that it was the legal owner of the levee and established roadway; alleging the boundary had been established by acquiescence as the center of the levee; and it had established an easement by prescription to travel over the levee and on a trail leading to the Hot Springs Club property, or alternatively, it was entitled to an easement by necessity to travel over the levee system and the trail to the Hot Springs Club property. The Thomas entities and the Turner tenants filed a counterclaim alleging that the levees were built wholly on the Thomas entities’ property approximately fifty feet from the property boundary line and seeking to quiet title in the Thomas entities; they asserted that the levees had been maintained since the 1960s by the Turner tenants; that permission to use the levee for access to Pin Oak property had been requested and denied multiple times; and that while a survey suggested a portion of the southern levee crossed the boundary onto Pin Oak property, the accuracy of the survey was disputed by both parties. Alternatively, the Thomas entities and the Turner tenants claimed that they had been in actual possession of the levees and the real property they were built on since at least 1962; and that the possession was open, continuous, exclusive, and with the intent to hold the real property adversely against anyone who may claim to be the owner. The...