Flake v. Thompson, Inc.

• Decision Date: 21 December 1970
• Docket Number: No. 5--5441,5--5441
• Citation: 249 Ark. 713,460 S.W.2d 789
• Parties: Leon FLAKE, et al., Appellants, v. THOMPSON, INC., Appellee.
• Court: Arkansas Supreme Court

Page 789

460 S.W.2d 789

249 Ark. 713

Leon FLAKE, et al., Appellants, v. THOMPSON, INC., Appellee.

No. 5--5441.

Supreme Court of Arkansas.

Dec. 21, 1970.

Byron R. Bogard, no. Little Rock, and Bruce T. Bullion, Little Rock, for appellants.

Wayne W. Owen and Joseph C. Kemp, Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants seek reversal of a decree by which the chancery court held that appellants had no right in a purported public easement in the City of Little Rock because:

1. It was not effective because it was never accepted by city ordinance.

2. It was not used continuously by the public for a period of time sufficient to establish an easement by prescription.

3. It was abandoned by city ordinance adopted September 1, 1969.

4. It did not convey or establish any right in the owners of property adjacent thereto on the north side thereof, and any use thereof by the owners of this property was by permission of appellees and their predecessors in title.

The decree was rendered in cases which were consolidated for trial since they involved the same purported easement.

The original action was brought in June 1968 by appellants Leon Flake, Dickson Flake and their respective wives as owners of a lot which abutted, in part, upon the purported easement. In this action they sought removal of barriers placed by Thompson, Inc. along the southern boundary of appellants' property and the northern boundary of the purported easement, claiming the right of ingress and egress to and from their property thereby. Thompson denied the existence of the easement. After the filing of this suit, it was discovered that the actual owner of a part of the land included within the boundaries of the purported easement had not joined in the grant upon which appellants relied. Thereupon on April 22, 1969, the City of Little Rock filed a cause of action against appellee and Westgate Corporation, the grantor of the easement, Town and Country, Inc. (T&C), and Heights Development Co., the corporation holding title to that part of the easement area not owned by Westgate, to reform the instrument by adding Heights as a granting party. The city also prayed that appellee be required to remove the barriers. Westgate, T&C and Heights answered, admitting that Heights should be added as a grantor. Little Rock University intervened in the action, as the owner of property (Lot 4) lying north of the easement and at the extreme west end thereof, seeking to enforce the easement.

Individual citizens and residents also intervened. A tract (Lot 5) owned by the Church of the Seventh Day Adventist lay north of the easement and east of the Little Rock University property. If fronted on University Avenue. Appellants' lot was carved out of the southeast corner of the church lot. These intervenors also asked reformation of the easement and removal of the barriers (which also ran along the south line of the remaining portion of the church lot).

After all these suits and the pleadings therein had been filed, Thompson, Inc., the present owner of Lot 6, the property from which the easement had been conveyed, offered the city a new public easement over the identical course of the earlier purported easement except that the north boundary of the new easement was one foot south of the south line of the church lot and the Flake lot. This easement was accepted by the city by ordinance on September 2, 1969, which also declared its abandonment of the earlier purported easement. The city had dismissed its complaint on May 13, 1969. The Flakes and the church filed suit against the city asking that the ordinance of September 2, 1969, be declared unconstitutional, illegal and void, insofar as it attempted to vacate and abandon the earlier easement.

The three causes were consolidated pursuant to stipulation. The issues, evidence, decree and this opinion will be better understood by reference to the sketch appended to this opinion.

The court's decree found that it was the intention of Westgate, the city and Heights that the latter be joined in the conveyance of the easement and that it was the intention of Westgate, Heights and T&C, their owners, officers and directors, to establish a valid easement, but that this intention was thwarted by mutual mistake. The following facts are undisputed:

In 1962, Town and Country, Westgate Corporation and Heights Development Company were all owned by the same individuals, and had the same persons serving as their respective officers and directors. They were engaged in development of Lots 4 and 6. Title to Lot 4 was in T&C, which prepared to construct an apartment complex thereon. A building permit by the city was denied because there was no public easement for ingress or egress. The only means of reaching the lot from the city streets required passage southerly from 29th Street over a private easement granted by owners of property lying north of Lot 4. Westgate then executed a written instrument on July 2, 1962, granting a 30-foot easement leading across Lot 6 from the east line of Lot 4 to University Avenue. This instrument was filed for record on August 15, 1962. The granting clause read:

THAT WESTGATE CORPORATION, for and in consideration of the benefits accruing to the public, and to guarantee access by public roadway to Lot 4, Riggs Addition to the City of Little Rock, does hereby grant a public street easement to the City of Little Rock so long as such easement is used for the purposes of a public street, over the strip of land in Little Rock, Pulaski County, Arkansas, as set out on the attached plat and described as follows, * * *

At that time Heights, not Westgate, was the owner of that part of Lot 6 which constituted the leg of the easement which connected directly with University Avenue. This leg was 30 feet wide and 130 feet long. The city, however, without investigating the title of the grantors issued its building permit to T&C, upon the recording of the easement. The apartment complex was completed. The purpose of the easement was to satisfy the requirements of the Little Rock ordinances that a building permit be issued only for lots abutting upon a public street. Subsequently, the capital stock of T&C was transferred to Little Rock University. There was still no public easement for ingress and egress to and from these apartments, prior to the grant of the new easement by Thompson, unless it was by the disputed easement.

Heights and Westgate conveyed Lot 6, upon which the Town and Country Shopping Center had been developed, to Thompson by warranty deed on April 14, 1966. Shortly thereafter these two corporations were dissolved, and they appeared by their former directors, as trustees.

The ordinance of the city abandoning the prior easement and accepting the new easement from Thompson contains the following language:

An ordinance vacating and abandoning a certain roadway situated in Lot 6, Riggs Addition to the City of Little Rock; accepting dedication of a substituted easement; and for other purposes.

WHEREAS, the Board of Directors of the City of Little Rock, Arkansas, has determined that the public street easement described in Section 1 hereof, dedicated to the City by the Westgate Corporation has never been used or devoted nor is it necessary for public street or roadway purposes and desires to vacate and abandon all its right, title and interest together with that of the public generally in and to said easement pursuant to the power granted cities of the first class by Arkansas Stat. 19--2304; and,

WHEREAS, the City is desirous of accepting a dedication from Thompson, Inc. for a public street easement of a strip of land in Lot 6, Riggs Addition to the City of Little Rock, Arkansas.

NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK.

SECTION 1. City of Little Rock hereby vacates and abandons all its right, title and interest together with that of the public generally in and to the following described property dedicated to the City of Little Rock, Arkansas, as a public street easement by Westgate Corporation, to-wit:

SECTION 2. City of Little Rock, Arkansas hereby accepts from Thompson, Inc. the dedication of a roadway easement in Lot 6 Riggs Addition to the City of Little Rock, Arkansas, more particularly described as follows: * * *

We find the chancery court's decree erroneous, principally because the chancellor applied an incorrect test in holding that the easement never became effective. This matter was treated extensively in Brewer v. Pine Bluff, 80 Ark. 489, 97 S.W. 1034. Although the irrevocable dedication of the way in question there arose through the sale of lots with reference to a plat recorded by the vendor, we cannot perceive any significant difference between this implied dedication and an express dedication by recorded grant, insofar as the issues here are concerned. (See City of Stuttgart v. John, 85 Ark. 520, 109 S.W. 541.) The rules of law governing acceptance applied in Brewer have equal application here. The language of that opinion is so appropriate to the issues here that we quote from it at some length. We said:

This dedication was also, in a certain sense, accepted by the general public which, with the exception of a few years when it was fenced, entered upon and used this strip as a public way, so far as its nature permitted. Owners of adjoining land formed their fences to the line of this street, and some of them planted shade trees thereon. When the owner of land lays it out into lots and streets, and records a plat thereof, it is not necessary, in order to show an acceptance by the public to prove a continuous use for a time sufficient to constitute a way by prescription, and although the nature of this street, cut in two by a lake or drain almost impassable to any except persons afoot, prevented it from being extensively used, yet, we think the use was sufficient, continued as it was for ten or fifteen years, to constitute an acceptance of...