Kelley v. Westover

Eugene T. KELLEY and Joye R. Kelley v.
William F. WESTOVER, Patricia M. Westover,
and William E. Westover

CA 96-412                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 19, 1997


1.   Easements -- prescriptive easements -- how created. -- A
     prescriptive easement may be created only by the adverse use
     of privilege with the knowledge of the person against whom the
     easement is claimed, or by use so open, notorious, and
     uninterrupted that knowledge will be presumed; the use must be
     exercised under a claim of right adverse to the owner and
     acquiesced in by him.

2.   Easements -- prescriptive easements -- concept of acquiescence
     discussed. -- The foundation of a right by prescription is
     acquiescence of the owner of the servient tenement in the acts
     relied on to establish the easement by prescription;
     acquiescence is here used in its ordinary sense, it does not
     mean license or permission in the active sense, but means
     passive assent or submission, quiescence, or consent by
     silence; any unambiguous act of the owner of the land which
     evinces his intention to exclude others from the uninterrupted
     use of the right claimed, breaks its continuity so as to
     prevent the acquisition of an easement therein by
     prescription.
3.   Easements -- appellees pursued series of overt acts to
     obstruct appellants' use of appellees' property --
     chancellor's determination that appellants' use of appellees'
     property was not sufficient to vest prescriptive easement not
     clearly erroneous. -- Where the appellees protested verbally
     and pursued a series of overt acts to obstruct the use of the
     alleged easement by appellants, the chancellor's determination
     that appellants' use of appellees' property had not been of
     such a continuous and uninterrupted nature as to vest in them
     a prescriptive easement, was not clearly erroneous; a
     chancellor's finding with respect to the existence of a
     prescriptive easement is a finding of fact and will not be
     reversed by the appellate court unless it is clearly
     erroneous.


     Appeal from Benton Chancery Court; John Lineberger,
Chancellor; affirmed.
     Gill Law Firm, by:  Glenn E. Kelley, for appellants.
     Stephen Lee Wood P.A., by:  Stephen Lee Wood, for appellees.

     John F. Stroud, Jr., Judge.
     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 appelleesþ 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. Westoverþs 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 sheriffþs office; and they felled trees across the
road.  The following colloquy between Mr. Kelley and appelleesþ
counsel is demonstrative:
          Q.  [Appelleesþ 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
     didnþt 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 þenjoined from interfering with [appellantsþ] use
of the roadway [appellants] have prescriptively used more than
twenty years....þ  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 appellantsþ 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 defined; (3) that
the chancellor erred in relying upon a particular case; and (4)
that the chancellor erred in not granting the appellantsþ prayer
for a prescriptive easement over the appelleesþ property.   The
first and last of these issues control this appeal and can best be
discussed together.
     A prescriptive easement may be created only by the adverse use
of privilege with the knowledge of the person against whom the
easement is claimed, or by use so open, notorious, and
uninterrupted that knowledge will be presumed, and the use must be
exercised under a claim of right adverse to the owner and
acquiesced in by him.  Childress v. Richardson, 12 Ark. App. 62,
670 S.W.2d 475 (1984).  The following explanation is helpful in
understanding the concept of acquiescence in establishing a
prescriptive easement:
          The foundation of a right by prescription is
     acquiescence of the owner of the servient tenement in the
     acts relied on to establish the easement by prescription. 
     Acquiescence is here used in its ordinary sense; it does
     not mean license or permission in the active sense, but
     means passive assent or submission, quiescence, or
     consent by silence.

                              . . .

          In some jurisdictions, mere verbal protests by the
     owner of land to its use by another are sufficient to
     disprove an acquiescence by him in such use.  In other
     jurisdictions, however, a mere verbal act on the premises
     over which an easement is claimed, resisting its exercise
     and denying its existence, does not disprove acquiescence
     by the owner unless it is accompanied by an overt act
     which in fact obstructs the use of the alleged easement. 
     Where this rule prevails, one isolated instance of an
     attempt to interrupt a use not resulting in actual
     interruption and not followed by an attempt to test the
     right to use does not, as a matter of law, necessarily
     disprove acquiescence.

25 Am. Jur. 2d, Easements and Licenses  72 & 73 (1996). 
Moreover, "any unambiguous act of the owner of the land which
evinces his intention to exclude others from the uninterrupted use
of the right claimed breaks its continuity so as to prevent the
acquisition of an easement therein by prescription."  Id. at  69.
     Here, the appellees did not sit idly by and allow appellants
to use the property.  They not only protested verbally, they also
pursued a series of overt acts to obstruct the use of the alleged
easement.  The chancellor determined that appellants' use of
appellees' property had not been of such a continuous and
uninterrupted nature as to vest in them a prescriptive easement. 
A chancellorþs finding with respect to the existence of a
prescriptive easement is a finding of fact and will not be reversed
by this court unless it is clearly erroneous.  Stahl v. Thompson,
6 Ark. App. 275, 641 S.W.2d 721 (1982).  We find no clear error
here.
     Concluding as we have that the chancellor did not err in
refusing to grant appellants a prescriptive easement over
appellees' property, we do not find appellants' second and third
points persuasive.
     Affirmed.
     Cooper and Meads, JJ., agree.