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

• Citation: 2022 Ark.App. 314
• Decision Date: 07 September 2022
• Docket Number: CV-21-303
• 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: Court of Appeals of Arkansas

2022 Ark.App. 314

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

September 7, 2022

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 01DCV-18-31] HONORABLE DAVID G. HENRY, JUDGE

Hyden Miron & Foster, PLLC, by: Lyle D. Foster, Guy W. Murphy Jr., 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, 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.

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 Thomas entities alleged that the Turner tenants had continuously and openly repaired and maintained the levees since at least 1962, and the maintenance work was completed on the entire levee. The Thomas entities also claimed that they had established a boundary by acquiescence as the southern base of the levee on the southern end of the Thomas entities' property because they had been solely responsible for maintaining and repairing the levee, for mowing the levee, and keeping the pathway on the levee usable for over fifty years.

After a bench trial, the circuit court filed a letter opinion on March 19, 2020, and filed an order on December 2, 2020, incorporating the letter-opinion findings into the order. The circuit court found that Pin Oak had established a prescriptive easement for ingress and egress across the real property owned by the Thomas entities in order to access its property; the use of the easement would be consistent with prior use; and the easement was appurtenant. The circuit court stated in its letter opinion that its decision on this issue was based on the fact that it found testimony of several longtime Pin Oak members concerning the long-time use of the levee and trail to the Hot Springs Club property on the issue of the prescriptive easement to be credible, while finding the testimony of Tate and Les Pfaffenberger, subtenants, to be inconsistent.

The circuit court further found that the Thomas entities established ownership of the levee system located along the previously surveyed northern boundary of Pin Oak's property, and to the extent any of the levee fell within the previously surveyed boundaries of Pin Oak's section 14 or 15 property, the Thomas entities had established ownership of the levee by adverse possession. The circuit court found that evidence at trial indicated Godfrey Thomas had built the levee system as early as the 1940s, and he and his successors had treated the levee system as their own since that time. All other claims of the parties were dismissed with prejudice. The Thomas entities and Turner tenants filed their notice of appeal on December 11, 2020, and Pin Oak filed its notice of cross-appeal on December 18, 2020.

I. Standard of Review

Matters sounding in equity are reviewed by this court de novo on the record with respect to questions of both law and fact, but a circuit court's findings of fact will not be reversed unless they are clearly erroneous. Strange v. Mary K. Reed Tr., 2014 Ark.App. 333. A circuit court's finding of fact is clearly erroneous when, despite supporting evidence in the record, the appellate court, viewing all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing a circuit court's findings of fact, the appellate courts give due deference to the circuit court's superior position to determine witness credibility and the weight to be accorded each witness's testimony. Id.

II. Direct Appeal

The Thomas entities and Thomas tenants first argue that the circuit court erred when it found that Pin Oak established a prescriptive easement. In Clark by and Through Clark v. Eubanks, 2019 Ark.App. 49, at 3-4, 570 S.W.3d 506, 508-09 (citations omitted), this court explained the elements required for a prescriptive easement:

A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period. The statutory period of seven years for adverse possession applies to prescriptive easements.

Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim of right are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Some circumstance or act in addition to, or in connection with, the use that indicates the use was not merely permissive is required to establish a right by prescription. The plaintiff bears the burden of showing by a preponderance of the evidence that there had been adverse, not permissive, use of the land in question.

Like adverse possession, "prescriptive easements . . . are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons." Pop-A-Duck, Inc. v. Gardner, 2022 Ark.App. 88, at 9, 642 S.W.3d 220, 227 (quoting Carson v Cnty. of Drew, 354 Ark. 621, 625, 128 S.W.3d 423, 426 (2003)). Whether use is adverse or permissive is a factual question. Anita G., LLC v. Centennial Bank, 2019 Ark.App. 217, 575 S.W.3d 561. There is a presumption of permissive use if land is unenclosed and undeveloped; however, this presumption can be rebutted if the user shows hostility of conduct in the usage of the land. Id. In ...