Bishop v. City of Fayetteville
| Decision Date | 12 February 2003 |
| Docket Number | No. CA 02-399.,CA 02-399. |
| Citation | 97 S.W.3d 913 |
| Parties | Bill BISHOP and Shelli Bishop v. CITY OF FAYETTEVILLE, et al. |
| Court | Arkansas Court of Appeals |
Kinkaid, Home & Daniels, by: David B. Home, Fayetteville, for appellants.
Kit Williams, Fayetteville City Att'y, for appellee City of Fayetteville, Arkansas.
Friday, Eldredge & Clark, LLP, by: Clifford W. Plunkett, Fayetteville, for appellee Alltel Mobile Communications of Arkansas, Inc.
Bassett Law Firm, by: Tod C. Bassett, Fayetteville, for appellee Southwest PCS, LP.
This appeal involves the construction of an easement deed. Appellants' predecessors in title granted an easement to the city. The easement was specifically designated as being for two purposes: laying utilities on the easement and providing access to adjoining land that the city owned. Subsequently, the city allowed the construction of wireless communication equipment on the part of the city's land that was accessed by the easement. The appellants sued for trespass and nuisance, arguing that the use made of the easement by defendants exceeded the rights granted to them by appellants' predecessors in title. The trial court disagreed with this construction of the easement deed and granted summary judgment to appellees. This appeal followed.
For reversal, appellants contend that the trial judge erred in entering summary judgment for appellees; in denying appellants' motion for summary judgment; and in failing to construe the easement as excluding the construction, maintaining, and servicing of cellular communications facilities. We affirm.
The record reflects that appellee City of Fayetteville built a water tower on its property adjacent to land owned by Dr. Carl Covey and his wife. In March 1987, the Coveys granted the City a "right-of-way grant" over their property. The deed granted to the City and its assigns "the right of way and easement to construct, lay, remove, relay, enlarge, and operate a water and/or sewer pipeline or lines, manholes, driveway and appurtenances thereto" across the Coveys' property. The deed described the easement as "[a] permanent easement of 25 feet in width for the purpose of laying a water line and an access driveway, more particularly described as follows, to wit: a 25 foot ingress and egress access and utility easement" and set forth a metes-and-bounds description of its location. The deed also provided:
TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such pipe line or lines, manholes, driveway and/or appurtenances, thereto shall be maintained, with ingress to and egress from the real estate first hereinabove described for the purpose of constructing, inspecting, maintaining and repairing said lines, manholes, driveway and appurtenances of Grantee above described, and the removal, renewal and enlargement of such at will, in whole or in part.
In October 1994, the City entered into an agreement with appellee Fayetteville MSA Limited Partnership, through its general partner, Alltel Mobile Communications of Arkansas, Inc., permitting the attachment of wireless communications equipment to the City's water tower. The City also leased to Alltel the ingress and egress easement over the Coveys' land. In 1998, appellants purchased the Coveys' property, after Alltel had operated the wireless equipment and used the access easement for over three years. In October 1998, the City of Fayetteville entered into an agreement with appellee Telecorp Realty, LLC, that permitted Telecorp to construct a wireless tower adjacent to the water tower on the City's property and to use the ingress and egress easement. The City and Telecorp assigned to appellee Southwest PCS, LP, the rights to locate cellular equipment on this tower and to use the easement.
Appellants sued appellees in May 2000 for trespass, nuisance, and inverse condemnation, alleging that appellees had exceeded the scope and intent of the easement. All parties moved for summary judgment, arguing that the right-of-way grant was unambiguous.
Alltel filed the affidavits of Dr. Covey and Burt Rakes, the City's land agent who had negotiated with the Coveys for the right-of-way grant in 1987. Dr. Covey stated that it was his and his wife's intent to give the City "the right to utilize the easement as a utility easement and as a driveway/access easement so that the City could have unlimited ingress and egress to its property for all lawful purposes." He added that he had not intended to restrict the City's access to its property "for any particular purpose." In his affidavit, Mr. Rakes said that, by the right-of-way grant, the City had intended to obtain a utility easement and an access/driveway easement, for all lawful purposes, to its property and that the Coveys had understood this. He also stated that "[t]he use of the access easement was not limited to the operation of a water utility system or any other specific purpose."
On October 3, 2001, the trial judge entered partial summary judgment for appellees on the trespass and nuisance issues. She found that the easement "clearly and unambiguously grant[ed] the City an easement for an ingress and egress right-of-way and as a utility easement." She also found that the use of the easement by the City and its assigns for access to the City's property was within the scope of the grant. She reserved a decision on the inverse condemnation issue.
Appellants again moved for summary judgment and requested clarification of the judge's previous order. Appellants argued that, even if the judge had determined that the City's easement was a right of way for utility purposes, the use of the right of way was limited to utility purposes, and cellular telecommunications businesses are not public utilities pursuant to Ark.Code Ann. § 23-1-101 (Repl.2002). In support, they filed the affidavit of Sam Bratton, counsel to the Arkansas Public Service Commission, wherein he stated that the Commission does not regulate cellular communications businesses. In response, the City argued that the judge's order made it clear that the grant conveyed an ingress and egress right of way and a utility easement and, therefore, Mr. Bratton's affidavit was irrelevant. They also asserted that the grant of the ingress and egress easement was not limited in purpose.
Upon the motion of appellants, the judge entered an order on January 2, 2002, dismissing their claim for inverse condemnation with prejudice. On January 22, 2002, the judge denied appellants' second motion for summary judgment, finding that the easement clearly and unambiguously granted the City an ingress and egress right of way to its property and a utility easement:
The Court finds that the ingress and egress right of way given to the City is not limited to the operation of a utility .... Even if this Court were to find that the easement is ambiguous, which it does not, the uncontradicted affidavits of Dr. Covey and the representative of the City that negotiated with Dr. Covey for the easement, Burt Rakes, state that the intention of the parties to the easement was to provide the City with a utility easement and an easement for ingress and egress for all lawful purposes.
Appellants bring this appeal from the October 3, 2001, January 2, 2002, and January 22, 2002, orders.
Appellants argue that the judge erred (1) in entering summary judgment for appellees; (2) in denying appellants' motion for summary judgment; and (3) in failing to construe the easement as excluding the construction, maintaining, and servicing of cellular communications facilities. The first and second points will be considered together.
In summary-judgment cases, this court need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark.App. 114, 15 S.W.3d 348 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. On a summaryjudgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000). Whe...
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