Diener v. Ratterree

Erich DIENER and ERPE, Inc. v. John RATTERREE

CA 96-476                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                 Opinion delivered May 28, 1997


1.   Easements -- implied easement defined. -- Where, during unity of
     title, a landowner imposes an apparently permanent and obvious
     servitude on part of his property in favor of another part,
     and where, at the time of a later severance of ownership, the
     servitude is in use and is reasonably necessary for the
     enjoyment of that part of the property favored by the
     servitude, then the servitude survives the severance and
     becomes an easement by implication. 

2.   Easements -- implied easement -- requirements for establishing. --  For
     an implied easement to be established, it must appear not only
     that the easement was obvious and apparently permanent but
     also that it is reasonably necessary for the enjoyment of the
     property, the term þnecesssaryþ meaning that there could be no
     other reasonable mode of enjoying the dominant tenement
     without the easement; an easement by implication does not
     arise merely because its use is convenient to the beneficial
     enjoyment of the dominant portion of the property.

3.   Easements -- whether easement is apparent and necessary is question of
     fact. -- Whether an easement is apparent and necessary is
     ordinarily a question of fact.

4.   Appeal & error -- review of chancery cases. -- Although the appellate
     court reviews chancery cases de novo, it does not reverse the
     chancellorþs findings unless they are clearly against the
     preponderance of the evidence, or clearly erroneous.

5.   Easements -- apparentness of use defined. -- Apparentness of use does
     not necessarily mean actual visibility but instead
     susceptibility of ascertainment on reasonable inspection by
     persons ordinarily conversant with the subject; each case must
     necessarily depend upon its particular facts.  

6.   Easements -- chancellor's finding that "apparent and obvious" test was
     satisfied was not clearly erroneous. -- Where the chancellor found
     that the septic system was reasonably necessary to appelleeþs
     use of the property and that the þtest of apparent and
     obviousþ had been satisfied, the appellate court held that
     those findings were not clearly erroneous; the court could not
     say that the chancellorþs finding that appellant possessed
     sufficient information to make apparent the existence and
     location of lateral leach lines extending from the adjoining
     propertyþs septic system was clearly erroneous.

7.   Notice -- general rule. -- The general rule is, that whatever puts
     a party upon inquiry amounts in judgment of law to notice,
     provided the inquiry becomes a duty as in the case of vendor
     and purchaser, and would lead to the knowledge of the
     requisite fact, by the exercise of ordinary diligence and
     understanding; or, more briefly, where a man has sufficient
     information to lead him to a fact, he shall be deemed
     cognizant of it.

8.   Easements -- trial court's finding that septic system was reasonably
     necessary was not clearly erroneous. -- The appellate court could not
     say that the trial courtþs finding that the septic system was
     reasonably necessary to appelleeþs use of his property was
     clearly erroneous; it is the necessity at the time of the
     conveyance that governs; where the commercial building, with
     its restrooms and septic system, was in existence at the time
     of the conveyance in 1983, and where there were no sewer lines
     in the area, a septic system was reasonably necessary to the
     property ownerþs use of the property.


     Appeal from Crawford Chancery Court; Harry A. Foltz,
Chancellor; affirmed.
     Michael E. Stubblefield, P.A., for appellant.
     Andrew A. Flake and Rex W. Chronister, P.A., for appellee. 

     John F. Stroud, Jr., Judge.
     This case involves a dispute between adjacent landowners
concerning a septic system.  The appellants are Erich Diener and
ERPE, Inc., Dienerþs wholly owned corporation.  The appellee is
John Ratterree.  The properties purchased by these parties were
originally owned by one person, Bobby Taylor.  When Taylor owned
all of the property, he constructed a commercial building with
restrooms served by an underground septic system.  The commercial
building was located on the portion of the property subsequently
purchased by appellee.  The lateral leach lines extending from the
septic system ran under a portion of the property that was
subsequently purchased by appellants.
     Appellants purchased their parcel in 1982.  The warranty deed
to appellant Diener stated that the conveyance was subject to
existing easements, but appellant was not told about the location
of the leach lines nor did he inquire.  Appellee purchased his
adjoining property approximately one year later, in 1983.  Problems
did not arise until 1993, when appellee opened a catfish restaurant
in the commercial building on his property.  Appellants maintained
that the increased usage of the public restrooms on appelleeþs
property caused sewage to rise to the surface of appellantsþ
property from the leach lines running underneath, and appellant
Diener severed the lateral lines located on his property.  The
parties eventually filed actions against each other, and those
actions were consolidated for trial.  Following a hearing, the
trial court found that a permanent servitude had been created on
appellantsþ property during Taylorþs prior ownership when there was
unity of title.  The court awarded appellee $1,000 in damages,
representing the cost of repairing the lateral lines that were
severed four times by appellant.  The court also permanently
enjoined appellants from interfering with those lines.  The court
denied appelleeþs request for damages based on trespass.  This
appeal followed.  We affirm.
     Appellants argue in the first point of appeal that the þtrial
court erred in finding that the existence of a septic system during
unity of title created a permanent servitude on the appellantsþ
property in favor of the appellee, and in awarding damages to the
appellee.þ  We find no error.
     Under this point, appellants use the terms þprescriptive
easementþ and þimplied easementþ as if they were interchangeable. 
They are not.  Here, we are dealing with a type of þimplied
easement.þ  Our supreme court has defined an þimplied easementþ as
follows:
     Where, during unity of title, a landowner imposes an
     apparently permanent and obvious servitude on part of his
     property in favor of another part, and where at the time
     of a later severance of ownership the servitude is in use
     and is reasonably necessary for the enjoyment of that
     part of the property favored by the servitude, then the
     servitude survives the severance and becomes an easement
     by implication.  In order for such an easement to be
     established it must appear not only that the easement was
     obvious and apparently permanent but also that it is
     reasonably necessary for the enjoyment of the property,
     the term þnecesssaryþ meaning that there could be no
     other reasonable mode of enjoying the dominant tenement
     without the easement.  An easement by implication does
     not arise merely because its use is convenient to the
     beneficial enjoyment of the dominant portion of the
     property.

Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987) (emphasis
added).
     In making their argument under this first point, appellants
argue that the use of the claimed þprescriptive easementþ was not
apparent and that it was not necessary.  Whether an easement is
apparent and necessary is ordinarily a question of fact.  Greasy
Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63
(1954).  While we review chancery cases de novo, we do not reverse
the chancellorþs findings unless they are clearly against the
preponderance of the evidence, or clearly erroneous.  Ark. R. Civ.
P. 52(a); Carver v. Jones, 28 Ark. App. 288, 773 S.W.2d 842 (1989).
     Apparentness of use does not necessarily þmean actual
visibility, but rather susceptibility of ascertainment on
reasonable inspection by persons ordinarily conversant with the
subject.þ  25 Am. Jur. 2d Easements & Licenses  30 (1966).  Each
case must necessarily depend upon its particular facts.  Here, the
chancellor found that the septic system was reasonably necessary to
appelleeþs use of the property and that the þtest of apparent and
obviousþ had been satisfied.  Those findings are not clearly
erroneous.  Appellant Diener had owned land adjacent to the
property in question, and he knew that the property had to be
served by septic systems because there were no sewer lines in the
area.  
          We announced the rule in this language in Waller v.
     Dansby, 145 Ark. 306, 224 S.W. 615:  "The general rule
     is, that whatever puts a party upon inquiry amounts in
     judgment of law to notice, provided the inquiry becomes
     a duty as in the case of vendor and purchaser, and would
     lead to the knowledge of the requisite fact, by the
     exercise of ordinary diligence and understanding.  Or, as
     the rule has been expressed more briefly, where a man has
     sufficient information to lead him to a fact, he shall be
     deemed cognizant of it."

Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952).  We cannot
say that the chancellorþs finding that appellant Diener possessed
sufficient information to make apparent the existence and location
of lateral leach lines extending from the adjoining propertyþs
septic system was clearly erroneous.
     Neither can we say that the trial courtþs finding that the
septic system is reasonably necessary to appelleeþs use of his
property was clearly erroneous.  It is the necessity at the time of
the conveyance that governs.  Greasy Slough, 224 Ark. at 338.  The
commercial building, with its restrooms and septic system, was in
existence at the time of the conveyance in 1983.  Because there are
no sewer lines in the area, a septic system is reasonably necessary
to the property ownerþs use of the property.
     In the second point of appeal, appellants argue that the
þtrial court erred in finding that the appellantsþ imputed
awareness of the need for septic systems in the general area met
the legal requirement that a prescriptive easement be apparent and
obvious.þ  This argument was addressed under Point I and needs no
further discussion.
     Affirmed. 
     Rogers and Meads, JJ., agree.
     Robbins, C.J., Crabtree, J., and Hays, S.J., dissent.


               Terry Crabtree, Judge, dissenting.
     While I agree with the majority opinion that an þimplied
easementþ was created when there was unity of ownership of the two
parcels in question, I cannot agree with the majority that the
easement was þapparent and necessaryþ at the time the appellant
purchased his property.  
     Before the parties acquired their respective properties, all
of the property was owned by Bobby Taylor.  Taylor constructed a
building with a septic system on part of the property and used it
for a real estate office that was open to the public.  In 1976,
Taylor sold the portion of the land with the building and septic
tank to Jolly Baugh.  Taylor owned the adjoining property on three
sides, and Highway 71 was on the fourth side.  The property was
used as a restaurant for approximately three years and then was
sold to another party.  Baugh regained the property through a
foreclosure action and conveyed the property to the appellee, John
Ratterree, by warranty deed dated July 13, 1983.
     The appellee ran a satellite business at the location until
1987 when the business was closed.  In December 1993, the appellee
opened a restaurant on the premises.  The appellee did not modify
or change the original septic system.
     The appellant purchased the property that adjoins the
appelleeþs property on August 25, 1982.  The warranty deed to the
appellant was þSubject to, existing right of ways, easements,
restrictions and previous reservations, if any.þ  After purchasing
the property, a wet spot developed and the appellant discovered
that the lateral lines from the septic tank on the appelleeþs
property ran onto his property.  The appellant testified at trial
that he had inspected the property before buying it and was not
aware of the lateral lines buried on his property.  
     After trial, the court ruled in favor of the appellee and
stated in its order, in part:
     The Court finds that the test of apparent and obvious
     which is required by law has been met where the
     Defendant, as in this case, is knowledgeable with the
     fact that property within that area with indoor plumbing
     was required to be on a septic or similar system.

Knowledge of other property in the area does not rise to the level
of apparent and obvious sufficient to put the appellant on notice
that his neighbor had septic system lateral lines running beneath
his property.  The lines were buried several feet beneath the
surface of the land and, at the time the appellant purchased his
property, the restaurant was not in operation.  The appellant
testified that after the restaurant started in business, sewage
would bubble to the surface of his property.  While credibility of
the witnesses is reserved for the trial court and I would normally
defer to the superior position of the trial court, the trial court
found in this instance that the test of apparent and obvious was
met because other property in the area with indoor plumbing had to
be on a septic or similar system.  This is not the visible use
contemplated in Greasy Slough Outing Club, Inc. v. Amick, 224 Ark.
330, 274 S.W.2d 63 (1954), in which the Arkansas Supreme Court
quoted John Hancock Mutual Life Ins. Co. v. Patterson, 103 Ind.
582, 2 N.E. 188 (1885), stating:
     In such case, the law implies that with the grant of the
     one an easement is also granted or reserved, as the case
     may be, in the other, subjecting it to the burden of all
     such visible uses and incidents as are reasonably
     necessary to the enjoyment of the dominant heritage, in
     substantially the same condition in which it appeared and
     was used when the grant was made.

Id. at 338, 274 S.W.2d  at 67 (emphasis added).  
     In the case of Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548
(1952), relied on by the majority opinion for the proposition that
þ...where a man has sufficient information to lead him to a fact,
he shall be deemed cognizant of it,þ the supreme court reversed the
trial court and stated:
     ...[W]e think the preponderance of the evidence is
     against appelleesþ contention that the physical condition
     of lot 12 at the time of appellantsþ purchase was such,
     by reasonable inspection, to make it apparent of the
     existence of a servitude that would charge them with
     notice of an easement. 

Id. at 109-10, 252 S.W.2d  at 551 (emphasis added).  
     The Hannah case was cited in Childress v. Richardson, 12 Ark.
App. 62, 670 S.W.2d 475 (1984), for the rule that: þA purchaser of
real estate is charged with notice of an unrecorded easement when
the existence of the servitude is apparent upon an ordinary
inspection of the premises.þ  Id. at 64, 670 S.W.2d  at 476.  In the
Childress case, this court reversed the trial courtþs finding that
a subsequent purchaser of real property was bound by an unrecorded
prescriptive easement for a private gas line that went across the
appellantþs property.  There were three meters for various gas
lines and the appellant testified that he thought that two of the
meters serviced an adjoining property owner but not the appellee. 
The court stated:
          In the present case, there was no actual notice to
     appellants and there was no evidence of the gas line
     sufficient to put appellants on notice of its presence. 
     The line was entirely underground, and there was nothing
     to put appellants on notice that one of the three meters
     east of appellantsþ property serviced appelleesþ
     residence.  Appellant James Childress testified that he
     was aware of the three meters, but had thought that one
     of the meters was his and that the other two serviced the
     two houses on the Flack property.  Under the
     circumstances of this case his belief was a reasonable
     one.

Id. at 65, 670 S.W.2d  at 476.
     This case is similar to the Childress case, and, rather than
overrule a long line of cases that require some use, preferably
visible, that would put a prospective purchaser on notice, I would
reverse.  I dissent.
     Robbins, C.J., and Hays, S.J., join.