Craighead Elec. Co-Op. v. Craighead County

• Decision Date: 20 February 2003
• Docket Number: No. 02-812.,02-812.
• Citation: 98 S.W.3d 414
• Parties: CRAIGHEAD ELECTRIC COOPERATIVE CORPORATION v. CRAIGHEAD COUNTY, Arkansas.
• Court: Arkansas Supreme Court

98 S.W.3d 414

CRAIGHEAD ELECTRIC COOPERATIVE CORPORATION v. CRAIGHEAD COUNTY, Arkansas.

No. 02-812.

Supreme Court of Arkansas.

February 20, 2003.

COPYRIGHT MATERIAL OMITTED

Lyons, Emerson & Cone. P.L.C., by: Jim Lyons, Jonesboro, for appellant.

Duncan & Rainwater, P.A., by: Michael Rainwater, Little Rock, for appellee.

JIM HANNAH, Justice.

Craighead Electric Cooperative Corporation ("the Cooperative") appeals summary judgment entered against it by the Craighead County Circuit Court. The Co-operative asserts that material questions of fact precluded entry of summary judgment. We agree.

The Cooperative sued Craighead County ("the County") alleging that in widening roads, the County encroached upon easements and rights-of-way owned or possessed by the Cooperative, causing the Cooperative damages in costs in moving power lines and poles and in taking of the easements or rights-of-way. The County brought a motion for summary judgment asserting that only the County had a right-of-way in the land used to widen the roads because the County had sixty foot rights-of-way since entry of a County Court order in 1907. The trial court found that the 1907 Order of the Craighead County Court conveyed to the County a sixty foot right-of-way in the four roads at issue in this case.

Because we hold that the 1907 Order does not purport to convey a property interest to the County, we need not address the issue of whether the 1907 Order could convey a property interest to the County, or whether the Cooperative would have standing to challenge any taking by the 1907 Order. We consequently hold that the issue of whether the Cooperative holds easements or rights-of-way that were encroached upon by the County has not been addressed by the trial court. Thus, a question of material fact remains undetermined by the trial court. Therefore, the summary judgment of the Craighead County Circuit Court must be reversed.

Facts

The Cooperative sued the County alleging that the County had encroached on easements and rights of way owned or possessed by the Cooperative. More specifically, the Cooperative alleged that the County enlarged roadways without notice and in some instances with notice, moving road ditches and soil so as to leave Cooperative power poles unsupported, leaning, and otherwise in unsafe conditions that required the Cooperative to move poles and power lines at its own expense. The Cooperative sued for $100,171.20 in compensation for property taken and for costs of moving lines and poles caused by the widening of four specific roadways. The Cooperative further sought declaratory judgment that compensation would be required for future takings by the County and for costs and fees.

The County moved for summary judgment under Ark. R. Civ. P. 56, alleging that the Cooperative had no property rights in the affected easements, nor any equitable right to compensation. The County also argued that the Cooperative decided to move the poles on its own, and that there was no taking.

The trial court granted summary judgment, finding that a 1907 Craighead County Court order conveyed a sixty foot easement to the County on all the affected roads; therefore, the Cooperative held no interest in the land on which the poles stood. The trial court further found that pursuant to the common-law rule, the Cooperative had to bear its own costs of relocation. The trial court additionally found that if there was an issue of an unconstitutional taking under the 1907 order, the Cooperative lacked standing to raise it; instead the affected landowners had to raise the issue. The Cooperative appeals the summary judgment.

Standard of Review

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, supra.

Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Cole, supra; Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Cole, supra; George, supra.

Easements and Rights-of-Way

We note first that the parties use the terms right-of-way and easement interchangeably. A right-of-way is an easement and "right-of-way" is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 825, 580 S.W.2d 935 (1979). Also, as the County asserts in citing Arkansas State Highway Commission v. Cordes Motors, Inc., 315 Ark. 285, 867 S.W.2d 178 (1993), a right-of-way or easement in a road may be acquired by prescription. The Cooperative asserts that it holds a right-of-way in the land used by the County to widen the subject roads. The County argues that by way of the 1907 Order, it has a right-of-way in the land used to widen the roads.

The parties agree that the landowners adjoining the roads hold the fee in the land, and that any right to use the land consumed in widening the roads comes by way of an easement or right-of-way. A right-of-way or easement is entitled to all the constitutional protections afforded other property rights. Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 385, 445 S.W.2d 505 (1969).

We will first dispense with the argument that the 1907 Order conveyed a right-of-way to the County. The August 17, 1907, Order of the Craighead County Court states:

On this day it is ordered by the Court that all Public Roads established in Craighead County, where the order establishing same fails to state the width, shall be construed to read sixty feet. The trial court found that this order was effective to confer on the County a right-of-way of sixty feet in the roads in question. By its terms the 1907 Order does not attempt to confer an interest in property. The 1907 Order attempts to modify county court orders establishing roads that are silent regarding the width of the road to be established. It goes no further. Therefore, no property right was conveyed by the 1907 Order alone.

The County alleges that even without the 1907 Order, the Cooperative failed to prove below that it held an interest in the land where its poles and power lines were located, that it has no franchise or deed proving ownership, that it has agreements showing entry on to the land was permissive, that it could acquire no easement against the County by adverse possession, and that the common-law rule is utilities pay their own costs of relocation.

The trial court's order on summary judgment does state that to prevail in the event the 1907 Order was ineffective, the Cooperative had to show that it held an easement by prescription, that the County encroached on that easement, and that the Cooperative suffered damages. However, the trial court found the 1907 Order to be effective and consequently made no determination of what other rights might exist in the easement, whether those rights are held by the County or by the Cooperative. It is also true that the trial court additionally found that applying the common-law rule that utilities pay their own relocation costs meant the Cooperative was responsible for the costs of relocation. The Cooperative challenges this finding, and we agree that application of the common-law rule in Arkansas is limited and not applicable in this case.

Whether the County, the Cooperative, or both possess a right-of-way in the land adjoining the roadway has not been determined below. We note that if the County had a prescriptive right-of-way in the roads as they existed before widening, that right-of-way does not vest in the County the right at a later date to widen or enlarge the prescriptive right except by just compensation to or the permission of the adjoining easement owner or landowner. Davis, supra.

The trial court must determine what rights, if any, both the County and the Cooperative may possess in the land used to widen the subject roads. The Cooperative alleged by way of the Affidavit of Cooperative manager Wayne Honeycutt that the Cooperative has never sought permission to enter the land where its poles and lines are located, and that the Cooperative maintained the poles and lines, and cut tree limbs, trees, and brush in the area where the poles are located. According to Mr. Honeycutt, the use of the land has always been under a claim of right. There is a material question of fact regarding whether the Cooperative has a prescriptive right in the land used to widen the subject roads. Likewise, the County alleges a similar right in the same land.

The evidence shows that the poles and power lines were placed along the subject roads at the latest between 1947 and 1951. There is no evidence that the Cooperative obtained and recorded written easements or that it obtained permission. Some records were provided showing power customers in the last few years have agreed to grant and convey an easement, but no easements were recorded based...