Strange v. Mary K. Reed Trust
| Decision Date | 28 May 2014 |
| Docket Number | No. CV-14-69,CV-14-69 |
| Citation | 2014 Ark. App. 333 |
| Parties | JAMES STRANGE and KAREN STRANGE APPELLANTS v. MARY K. REED TRUST APPELLEE |
| Court | Arkansas Court of Appeals |
AFFIRMED
This lawsuit concerns a prescriptive easement granted in favor of the Mary K. Reed Trust over real property owned by James Strange and Karen Strange in Van Buren County. The Reed family had been using a roadway across the Stranges' property to access their own forty-acre tract since at least 1970. After several years of continued disputes between the parties regarding this use, the Trust filed a complaint against the Stranges on July 6, 2009, in an attempt to establish a prescriptive easement. The Stranges bring this appeal from the Van Buren County Circuit Court's order finding that the Trust had established an easement by prescription across their property. We find no clear error, and we affirm the circuit court's order.
The disputed roadway is located on the Stranges' property, which the Stranges acquired in June 1999 from Mr. Strange's father, who had owned the property since at least the 1970s. The Reed family had owned property adjoining the Stranges' land since 1970, andMary Reed conveyed it to the Mary K. Reed Trust on June 16, 2000. The disputed roadway, which is the approximate width of a two-axle vehicle, connects the Trust's property with County Road 231, or Angus Road, and is the only means of vehicular access to the property. The parties agree that the Reeds have used the roadway to access their property for years, long before either the Stranges or the Trust acquired title from their predecessors. A gate was installed blocking the roadway in the 1970s, but both the Stranges and the Reeds had a key, and the Reeds' use appears to have been permissive at least for some time after the gate was installed. The parties dispute when the use became adverse but agree that, after Mr. Strange acquired the property from his father in 1999, he made it clear to the Reeds that he did not want them using the roadway over his property and that he considered their use adverse.
On July 6, 2009, the Trust filed a complaint against the Stranges seeking to establish an easement by prescription in the roadway. After a hearing, the circuit court entered an order on December 16, 2011, finding that the Trust had established an easement by prescription. We dismissed an appeal from that order, holding that the order was not final because it did not contain a legal description of the easement. Strange v. Mary K. Reed Trust, 2012 Ark. App. 592. The circuit court entered a final order on October 28, 2013, again finding the existence of a prescriptive easement across the Stranges' property, which was more particularly described in an exhibit attached to the order. Specifically, the court found that the roadway was the only means of access to the Trust's property and that the Reeds and their invitees had used and maintained it on a regular basis to access the property since at least 1965. The court also found that the use became adverse either in 1999 or 2000 after the Stranges acquired the property.The court determined that the Trust beneficiaries continued to use the roadway and this use "remained adverse for a period of greater than seven years." The Stranges filed this appeal.
We review matters that sound in equity de novo on the record with respect to questions of both law and fact, but we will not reverse a trial court's fact findings unless they are clearly erroneous. Baker v. Bolin, 2012 Ark. App. 141, at 1. A finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Ward v. Adams, 66 Ark. App. 208, 210, 989 S.W.2d 550, 551 (1999). In reviewing a trial court's findings of fact, the appellate courts give due deference to the trial court's superior position to determine witness credibility and the weight to be accorded their testimony. Steele v. Blankenship, 2010 Ark. App. 86, at 10, 277 S.W.3d 293, 298.
On appeal, the Stranges contend that the circuit court's decision is clearly erroneous because the Trust failed to show that its claim of right was adverse for seven consecutive, continuous years. The Stranges argue that the court found that the adverse use began in 1999 or 2000 and that they interrupted the Reeds' use in 2005 and 2006 by placing hay bales, rocks, and logs in the road, therefore preventing seven continuous years of adverse use by the Reeds. They also point to Mr. Strange's testimony that the Reeds did not use the road from 2004 through 2008 and to the Reeds' testimony that they used the road primarily during hunting season.
We turn to the governing law. A person not in fee possession of land may obtain aprescriptive easement by operation of law in a manner similar to adverse possession:
Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
Baker v. Bolin, 2012 Ark. App. 141, at 2 (quoting Fullenwider v. Kitchens, 223 Ark. 442, 446, 266 S.W.2d 281, 283 (1954)). The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Id.
Several members of the Reed family testified regarding their use. John Hughes Reed, Mary Reed's son, testified that he was sixty-eight years old at the time of the hearing and that he had been familiar with and used the property since 1970. He testified that his father...
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