Goodwin v. Lofton, CA
| Decision Date | 04 January 1984 |
| Docket Number | No. CA,CA |
| Citation | 10 Ark.App. 205,662 S.W.2d 215 |
| Parties | Walter N. GOODWIN, Jr. and Betty Goodwin, Appellants, v. Carolyn LOFTON, Appellee. 83-70. |
| Court | Arkansas Court of Appeals |
Worth Camp, Jr., El Dorado, for appellants.
Guthrie, Burbank & Dodson by Don B. Dodson, El Dorado, for appellee.
This is an appeal from a decree holding that a deed of easement granted to the predecessor in title of appellee, Carolyn Lofton, by the predecessors in title of appellants, Walter N. Goodwin and Betty Goodwin, remains in full force and effect and constitutes the valid right-of-way across lands of appellants. Appellee owns a 70.75 tract of land lying immediately west of a 48.25 acre tract owned by appellants. The easement was granted in 1966 and described a permanent and perpetual easement and right-of-way not to exceed 25 feet in width across the property of appellants to provide access from state Highway 7 to the lands of appellee. Subsequent to the granting of the easement, appellee's husband commenced preparations for the construction of a road utilizing the easement as granted, but the husband became ill and died in 1972. Thereafter, appellee admittedly did nothing to utilize the easement until she made a decision in 1981 to move her residence to the 70.75 acre tract.
For reversal, appellants contend that the court erred by failing to find that the easement instrument was an indenture contract and invalid for failure of consideration; that the court's finding that there was no expressed or implied intention to abandon the easement granted is not supported by a preponderance of the evidence; and that the court erred by failing to find that appellee is estopped or prevented by laches from enforcing the easement. We find no error in the trial court and we must affirm.
An indenture is defined as a deed to which two or more parties enter into reciprocal and corresponding obligations toward each other. See Black's Law Dictionary 693 (5th ed. 1979). Failure of consideration may result not only from complete default but also from a protracted delay in performance. In chancery, the amount of delay that will be condoned varies with the equities of the case. Henslee v. Boyd, 235 Ark. 369, 360 S.W.2d 505 (1962). However, a present grant, absent fraud, mistake or undue influence, which is delivered, accepted and recorded is valid without consideration. See Cannon v. Owens, 224 Ark. 614, 275 S.W.2d 445 (1955); Parkey v. Baker, 254 Ark. 283, 492 S.W.2d 891 (1973); Millwee v. Wilburn, 6 Ark.App. 280, 640 S.W.2d 813 (1982). Further, it is to be noted that a deed is to be construed most strongly against the grantor. Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957).
The pertinent portion of the deed of grant provides as follows:
As a further consideration for this grant, GRANTORS reserve the right to themselves, their heirs and assigns, to the use of any road to be constructed hereunder by GRANTEES for any needed use by GRANTORS.
Appellant contends that a failure of consideration occurred because the grantees in the deed of easement were obligated to construct a road within a reasonable time. However, there is no evidence to support a finding that this was an indenture, because there is no reciprocal or corresponding obligation. In fact, there is no affirmative duty on the part of appellee to do anything; the easement deed merely gave the grantors the right to use any road constructed by the grantees.
The rule is recognized in Arkansas that an easement may be lost by abandonment. Drainage District No. 16 v. Holly and Roach, 213 Ark. 889, 214 S.W.2d 224 (1948). Whether an abandonment exists in any given case depends on the particular circumstance of the case. While non-use does not alone constitute an abandonment, it is some evidence of it, and when, in addition to such non-use, facts are proved and circumstances and testimony evincing that intention are offered, then the abandonment is established. In Drainage District No. 16, supra, the evidence showing abandonment of right-of-way of an old levee included: (a) The 1915 right-of-way was for a levee only, and in 1938 the district acquired by grant a right-of-way for a new levee, which was erected on the new...
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