Pop-A-Duck, Inc. v. Gardner
| Decision Date | 23 February 2022 |
| Docket Number | CV-19-969 |
| Citation | 642 S.W.3d 220,2022 Ark. App. 88 |
| Parties | POP-A-DUCK, INC.; Berry Abney; Buck Matthews; Larry Vassar; Billy Kyle; and Robert Hardin, Appellants v. John E. GARDNER ; Robbie Gardner; Manning Family, LLC; Cecil Gardner Family, LLC; Terrell Wayne Evans; and WE Farms, LLC, Appellees |
| Court | Arkansas Court of Appeals |
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., North Little Rock by: Sam Hilburn and Tess E. Stewart, for separate appellants Pop-A-Duck, Inc., Berry Abney, Buck Matthews, Larry Vassar, and Billy Kyle.
Dover Dixon Horne PLLC, Little Rock, by: Monte Estes, for separate appellant Robert Hardin.
McMullan & Brown, Little Rock, by: Marian Major McMullan, for separate appellees John E. Gardner ; Robbie Gardner; Manning Family, LLC; and Cecil Gardner Family, LLC.
John R. Clayton & Associates, by: John R. Clayton, for separate appellees Terrel Wayne Evans and WE Farms, LLC.
This appeal arises from an order denying a request for a declaration that a prescriptive and public easement be established across farmland owned by appellees, John E. Gardner; Robbie Gardner; Manning Family, LLC; and Cecil Gardner Family, LLC (collectively the "Gardners"), to an access point on the Cache River in Jackson County, Arkansas, near Tupelo. Appellants are Pop-A-Duck, Inc., and its individual shareholders, Berry Abney, Buck Matthews, Larry Vassar, Billy Kyle (collectively "PAD"), and the intervenor, Robert Hardin ("Hardin"). Appellees Terrell Wayne Evans and his company, WE Farms, LLC (collectively "Evans"), own property adjoining the Gardners’ 220-acre parcel and were in the process of purchasing the property when suit was filed, thereby stopping the sale.
Following a two-day bench trial, the circuit court entered a final order denying and dismissing the appellants’ complaints. Appellants filed a timely Joint Notice of Appeal on October 3, 2019. We affirm.
The Gardners inherited farm property in Jackson County consisting of approximately 220 acres (the "Property") through which the Cache River flows. PAD's property consists of approximately 80 acres of timberland through which the Cache River (the "River") also flows. This case involves access to a boat landing on the west side of the River that, in order to access, one must cross the Property in an easterly direction over a private farm road (the "Road") to reach the desired river-access point (the "Landing"). Other boat landings are available along the River, albeit miles apart; therefore, the only river access PAD has to the preferred Landing in question is through the Property. Appellants contend that PAD and its shareholders, as well as the general public, have continuously used the Road to bring their boats to the River from Jackson County Road 23 and have parked their vehicles and boat trailers on the landing area while they boated the River for hunting and fishing.
In 2018, the Gardners entered into a contract to sell the Property to Evans, and Evans expressed his intent to install a gate on the Property that would block access to the Road and the Landing. This dispute arose when the appellants learned of Evans's intent to block further use of the Road. On March 1, 2018, PAD sought a declaration of an easement by necessity, a prescriptive easement, and a public easement to the Road and the Landing as well as an injunction to prohibit interference with access via the Road and the Landing. In response, the Gardners filed a counterclaim asserting claims for interference with contract and business expectancy, abuse of process, and slander of title as well as a declaratory judgment declaring that the Road and Landing are private property for the exclusive benefit of the landowners.
Subsequently, Evans erected a gate across the Road, thereby restricting access to the Landing. On September 4, 2018, PAD filed a motion for a temporary restraining order ("TRO") requesting that the circuit court enter an order preventing the appellants from blocking access or otherwise interfering with use and enjoyment of the Road or the Landing. The circuit court entered an order granting the TRO on September 7, 2018. Subsequently, an agreed preliminary injunction was entered that clarified PAD's and others’ access rights to the Road and Landing pending trial.
Robert Hardin filed a motion to intervene alleging a right to enforce easements across the Property based on claims of easement by necessity, easement by prescription, and public easement. On February 11, 2019, the circuit court granted intervention to Hardin. Hardin filed his complaint on February 25, 2019, incorporating PAD's allegations set forth in its amended complaint and further asserting that the general public has been using the Road and the Landing to access the River in excess of sixty-five years; therefore he was entitled to a public easement. Hardin further alleged that he himself, PAD, and "others" had maintained and paid for the maintenance of the Road and the parking area beside the Landing for more than sixteen years with no objection from the Gardners.
A bench trial was held on July 22 and 23, 2019.1 At trial, each of the appellants testified to their historical use of the Road and the Landing. Additionally, nine nonparty witnesses were called by the appellants who also testified to their use of the Road and the Landing over varying lengths of years—without express permission—and further provided testimony to having seen other members of the public using the Road and the Landing, primarily during duck-hunting season. Appellants Hardin, Abney, and Kyle testified they had provided maintenance on the Road and had paid for maintenance to be performed, which all parties agree is necessary during duck season due to vehicles using the Road in wet conditions, thereby resulting in damage to the Property. In response, appellee John E. Gardner ("Mr. Gardner") testified that while he knew that the Tupelo community and others from surrounding areas used the Road to access the River for duck hunting and fishing, use of his property was permissive. Appellees also put forth testimony from adjoining landowners who testified that they understood their use of the Road was permissive, one in particular referring to it as a "gentlemen's easement" from Mr. Gardner.
The circuit court issued its findings in an order dated September 5, 2019. The circuit court also conducted an on-site inspection of the Property prior to trial, which included traveling down the Road at issue and observing the Landing. In conclusion, the court found that the evidence submitted was insufficient to establish a prescriptive or public easement to the Road and the Landing and dismissed appellants’ complaints. Specifically, the court discredited some of the appellants’ witnesses and held that the appellants did not prove overt activity that would make it clear to the Gardners an adverse claim was being exerted. Furthermore, as a result of its on-site inspection and the testimony produced, the circuit court found that the Road is a "field road going to a spot on the river to launch a boat and nothing more"; therefore, it was not a road commonly used by the public. Appellants timely filed a joint notice of appeal on October 3, 2019.
There are four points on appeal: (1) whether the circuit court applied an erroneous legal standard in finding that appellants failed to establish a prescriptive easement; (2) whether the circuit court erred in finding that appellants did not establish a prescriptive easement; (3) whether the circuit court abused its discretion in finding that Abney and Kyle were "less than credible" witnesses; and (4) whether the circuit court erred by denying appellants’ request to establish a public easement.
Appellate courts review appeals from bench trials, including declaratory judgments, under the clearly erroneous standard. Poff v. Peedin , 2010 Ark. 136, at 6, 366 S.W.3d 347, 350. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. MacKool v. State , 2012 Ark. 287, 423 S.W.3d 28.
This court gives great deference to a circuit court's findings of fact; mindful that the circuit court is in the best position to hear testimony and determine the credibility of the witnesses. Save Energy Reap Taxes v. Shaw , 374 Ark. 428, 435, 288 S.W.3d 601, 604 (2008). It is this court's duty to reverse if its own review of the record is in marked disagreement with the circuit court's findings. Dopp v. Sugarloaf Mining Co. , 288 Ark. 18, 702 S.W.2d 393 (1986) ).
For their first point on appeal, appellants argue that the circuit court applied the incorrect legal standard in its order by applying a higher standard of proof to include a showing of "hostility of conduct" in its use of the Property, which they allege is required only when the land is "undeveloped." Specifically, the appellants contend the circuit court failed to make a distinction respecting the type of land at issue, and because the Property is "developed and cultivated farmland," they were not required to rebut the presumption of permissive use with a showing of hostility of conduct. In response, the Gardners argue that the appellants failed to preserve this issue on appeal, but nonetheless, the circuit court applied the correct legal standard.
In Anita G, LLC v. Centennial Bank , this court reiterated that if land is "unenclosed and undeveloped," there exists a presumption of permissive use that can be rebutted if the user shows "hostility of conduct in the usage of the land." 2019 Ark. App. 217, at 11–12, 575 S.W.3d 561, 569....
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