Gerald Brumley and Ruth Brumley, his wife v. Entergy Services, Inc.

Arkansas Court of AppealsDIVISION I

Not Designated For Publication

Andree Layton Roaf, Judge

CA00-332

November 29, 2000

GERALD BRUMLEY and AN APPEAL FROM GARLAND

RUTH BRUMLEY, his wife COUNTY CIRCUIT COURT

APPELLANTS No. CIV-98-741-I

V.

HONORABLE JOHN HOMER WRIGHT,

ENTERGY SERVICES, INC. CIRCUIT JUDGE

APPELLEE

AFFIRMED

Gerald and Ruth Brumley appeal the summary judgment awarded by the Garland County Circuit Court to appellee Entergy Services, Inc. The trial court found that no genuine issue of material fact existed and that the statute of limitations prevented the Brumleys from challenging an easement claimed by Entergy over lands owned by them. The Brumleys argue on appeal that the judge erred by deciding a material question of fact and granting summary judgment. We disagree and affirm.

The Brumleys purchased a tract of rural and unenclosed real property located in Garland County on or about September 23, 1975. The property was traversed by an existing power line. Arkansas Power & Light (Entergy's predecessor) sent the Brumleys a letter dated June 17, 1976, which stated:

Presently the Arkansas Power & Light Co. is improving its service along North Moore Road from Hwy. 70 to the Sunshine Community. The area along North Moore Road is growing very rapidly and it is estimated that the existing circuit serving this area will be overlooked during the next summer peak.

We have an existing circuit extending across your Lot #19 of the Wagon Wheel Estates Subdivision. It is our proposal to remove this circuit from across your property and construct an improved circuit along the road adjacent to your Lot. This construction will make service available to your property and at the same time eliminate the possible interference by the existing circuit with any construction you might propose. The accompanying drawing is for your perusal. We are in hopes that this change meets with your approval.

The Brumleys never responded to this letter. During the latter part of 1976, Entergy relocated the power poles, guy wires, and overhead wires on the Brumleys' property from the interior of the lot to the roadside as provided in this letter.

On May 28, 1998, the Brumleys sent Entergy a letter demanding that it vacate the property within thirty days. When Entergy failed to vacate, the Brumleys filed suit to eject Entergy from their property and for damages for the trees that had been destroyed. In their complaint, the Brumleys alleged that Entergy damaged or destroyed trees and other foliage that they had intentionally left standing for landscaping purposes. Entergy admitted in its answer that it placed the poles and wires on the property without the Brumleys' consent or knowledge and without payment of compensation.

On September 16, 1999, the Brumleys filed for partial summary judgment, arguing that it was undisputed that they purchased the land, that the power lines were not on the land when they purchased it, and that Entergy placed certain encroachments on it without compensation to them and without obtaining any utility easement. Entergy filed for summary judgment on October 1, 1999, and included an affidavit from Otis Jeff Smith, an employee at the time the improvements were placed on the property. Smith stated that heprepared the project plat, he notified the Brumleys by sending them the 1976 letter, and that the improvements were made under his direction. He also stated that the land beneath the improvements was cleared in 1976, prior to the installation of the new poles and lines, and that it has been maintained ever since. Entergy argued that the items were on the property for a period in excess of the time required by Arkansas law to establish a prescriptive easement over the property. The Garland County Circuit Court agreed and granted Entergy's motion, finding that there were no genuine issues of material fact in dispute. The court also held that the 1976 letter gave the Brumleys notice of Entergy's intended actions, constituted a "claim of right," and that, by failing to respond, the Brumleys consented to the taking of the easement. The trial court held that the Brumleys should have initiated a claim within the statutory period of seven years and that they had not.

On appeal, the Brumleys argue that: (1) a permissive easement can never ripen into a prescriptive easement; (2) the trial court held against the preponderance of the evidence; (3) the trial court's ruling is contrary to Article 12, § 9 of the Arkansas Constitution; (4) the trial court improperly ruled on a fact question in considering summary judgment; and, (5) the trial court's ruling is arbitrary and capricious.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56. In summary judgment cases, this court need only decide if the granting of summary judgment was appropriate. Mashburn v. Meeker SharkeyFin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). It is the responsibility of the moving party to prove that no genuine issue as to a material fact exists. Id.

The trial court found that the 1976 letter sent by Entergy to the Brumleys was a claim of right and that the statute of limitations bars the Brumleys' claim. The Brumleys argue that the issue of whether the use was permissive or adverse is a question of fact that the judge should not have decided on summary judgment. However, we do not agree. Moreover, the supreme court has held that, on a summary judgment motion, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999).

It is undisputed that Entergy placed its power poles, guy wires, and overhead wires on the Brumleys' property sometime in 1976. The Brumleys do not dispute that they received the 1976 letter or that they failed to respond. The affidavit attached to Entergy's motion for summary judgment shows that the land was cleared in 1976 and has been maintained ever since. The Brumleys have offered no proof to rebut this evidence. On a summary judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000).

Entergy argued in its answer that it has a prescriptive easement to the land in question, and the trial court agreed. One asserting an easement by prescription must show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271,819 S.W.2d 275 (1991). Some circumstance or act in addition to or in connection with the use, that indicates that the use was not merely permissive, is required to establish a right by prescription; overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted; mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Id.

The Brumleys argue that the 1976 letter could easily be interpreted as Entergy requesting permission to occupy the land and, therefore, appellee's twenty-year presence on the land could not ripen into a prescriptive easement without something more to establish adversity. However, the letter clearly placed the Brumleys on notice that Entergy was going to take some action, and the facts show that it took that action over twenty years ago. The Brumleys assert in their complaint for ejectment that Entergy removed trees and brush that appellants wanted to leave as part of their landscaping. Entergy said it did this over twenty years ago for purposes of placing their improvements thereon. Entergy's actions in clearing the land and making the improvements thereon were open and adverse. These facts do not lend themselves to a permissive easement situation.

Entergy argued in its answer to the complaint for ejectment that it never sought, obtained, or required the Brumleys' consent or permission because, under Arkansas law, it was well within its rights as a public utility provider to place certain improvements on the Brumleys' property. Specifically, Entergy relies on Ark. Code Ann. § 18-15-503 for authority to support its actions. Paragraph (a)(1) of this section provides that corporations organized under the laws of this state for the purpose of generating, transmitting, andsupplying electricity for public use has the right to construct, operate, and maintain lines, and paragraph (b) provides that, if it is not secured by consent, contract, or agreement, it must proceed to procure condemnation of the property. Entergy also contends that the issues of consent and revocation are moot points because the statute of limitations has run and Entergy now has a prescriptive easement. The supreme court has considered the period for acquiring a prescriptive right-of-way as analogous to the statutory seven-year period for the acquiring of title by adverse possession and has held that both require seven years. Smith v. Loyd, 68 Ark. App. 127, 5 S.W.3d 74 (1999). In the case at bar, Entergy has been openly utilizing a portion of the Brumleys' land for over twenty years under a claim of right, and therefore, the statute of limitations bars any action in law or equity pursuant to Ark. Code Ann. § 18-61-101 (1987).

The Brumleys also argue that the trial court's ruling is contrary to Art. 12, § 9, of the Arkansas Constitution; however, that section applies to eminent domain cases and is not applicable in the instant case, where Entergy did not use the eminent domain procedures.

The Brumleys' final argument is that the ruling of the trial court was arbitrary and capricious; however, as stated earlier, that is not the appropriate standard of review for summary judgments. See Mashburn v. Meeker Sharkey Fin. Group, Inc., supra.

Affirmed.

Jennings and Crabtree, JJ., agree.