Kelley v. Westover, CA
| Citation | 56 Ark.App. 56,938 S.W.2d 235 |
| Decision Date | 19 February 1997 |
| Docket Number | No. CA,CA |
| Parties | Eugene T. KELLEY and Joye R. Kelley, Appellants, v. William F. WESTOVER, Patricia M. Westover, and William E. Westover, Appellees. 96-412. |
| Court | Court of Appeals of Arkansas |
Glenn E. Kelley, Little Rock, for Appellants.
Stephen Lee Wood, Rogers, for Appellees.
This is a prescriptive easement case in which appellants, Eugene and Joye Kelley, claim a prescriptive right of passage over property belonging to appellees, William F. Westover, William E. Westover, and Patricia M. Westover. The chancellor determined that appellants had sporadically crossed appellees' property for more than twenty years, but that their use of the property was not continuous and uninterrupted, and therefore had not established a prescriptive easement. We agree and affirm.
In 1951, appellee William F. Westover purchased twenty acres of unimproved property in Benton County. He subsequently executed a warranty deed that conveyed the twenty-acre tract to his son and daughter-in-law, appellees William E. and Patricia M. Westover, but he retained a life estate in the property. In 1971, appellants, Eugene and Joye Kelley, purchased property adjacent to the twenty-acre tract. Approximately three years later, appellants built a house on their property. Mr. Kelley testified that eighty to ninety percent of the time, his family used their own driveway to get to and from Walnut Valley Road. Occasionally, however, they used a portion of Mr. Westover's property as an alternate access to and from another road, Cloverdale Road, particularly in times of bad weather because their driveway is very steep. This use continued for an approximate twenty-year period.
During this twenty-year period, appellees used various methods to keep appellants from crossing the property. For example, they asked appellants by telephone and in person to stay off the property; they ran barbed wire across the road; they replaced barbed wires cut by appellants; they removed a gate installed by appellants and replaced the fence wire; they piled brush logs, and other debris across the road; they posted no trespassing signs; they called the sheriff's office; and they felled trees across the road. The following colloquy between Mr. Kelley and appellees' counsel is demonstrative:
Q. [Appellees' counsel]: When do you believe the Westovers had knowledge that you were crossing their property to Cloverdale Road?
A. [Eugene Kelley]: From the very beginning because they kept putting debris in and putting up the wire and we kept taking it down. When I took the wire down, I didn't go back, unless--if I took it down and like I was in my car, you know, I might put it back up again, but, generally, like I said, I had a front end loader. When I thought he was doing it just to close off the road, then I just drove through it. I would go down there with my front end loader and just drive right through it because most of the times when he did that, he also put brush on it and I just took care of it all at one time.
. . . . .
Q. So, I understand from your testimony that since, from the very beginning, when you purchased your property, Mr. Westover, or people acting for him, someone consistently had been trying to thwart your attempts to use that pathway down Cloverdale Road?
A. Yeah.
In 1995, appellants filed a complaint in chancery court asking that appellees be "enjoined from interfering with [appellants'] use of the roadway [appellants] have prescriptively used more than twenty years...." The chancellor found in favor of appellees, and this appeal followed.
Appellants raise four points of appeal: (1) that the chancellor erred in finding the appellants' use of the property was too sporadic to meet the requirement of continuous and uninterrupted use; (2) that the chancellor erred in finding the location of the claimed easement was not clearly...
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...limiting access to the property.” Use was interrupted by large earthen berm blocking road for three days.); Kelley v. Westover, 56 Ark.App. 56, 60, 938 S.W.2d 235, 236-37 (1997) (“[A]ny unambiguous act of the owner of the land which evinces his intention to exclude others from the uninterru......
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