Charles Randall Williams and his wife, Debra Williams v. Charles Bales and his wife, Helen Bales

ARKANSAS COURT OF APPEALSDIVISION IV

JUDGE JOHN F. STROUD, JR.

NOT DESIGNATED FOR PUBLICATION

CA00-349

November 15, 2000

CHARLES RANDALL WILLIAMS AN APPEAL FROM UNION

and his wife, DEBRA WILLIAMS COUNTY CHANCERY COURT,

APPELLANTS SECOND DIVISION

NO. E-98-904-2

V.

HONORABLE EDWARD P. JONES

CHARLES BALES and his wife, CHANCERY JUDGE

HELEN BALES

APPELLEES AFFIRMED

This appeal is from an order of the Union County Chancery Court, which held that appellants failed to establish their right to certain lands by adverse possession or by deed. We agree that appellants failed to establish any right to the land in question and affirm.

Appellants, Debra and Charles Randall Williams, purchased land located in Norphlet, Union County, by two separate conveyances from Mrs. Beatrice Murphy in 1980 and 1981. Appellees, Charles and Helen Bales, acquired their land from Mrs. Murphy in 1988. A road running between the two tracts now owned by the parties in this action was established over 100 years ago, and both parties used it for access to their respective tracts. The road was primarily located on the property that was deeded to appellees. There is no dispute over the use of this road.

In addition to the roadway, appellants claim they have an easement to use another portion of the property owned by appellees. In 1988, appellants learned that Mrs. Murphy was going to sell land contiguous to their land to appellees and asked her if she would give appellants an easement. She agreed, and appellants had an attorney prepare an easement deed. On May 3, 1988, appellants obtained from Mrs. Murphy a twenty-foot-wide easement that encompassed the existing roadway and a tract running eastwardly along the southern border of their own tract, which is the area in question. This easement deed was recorded on May 6, 1988. However, on May 4, 1988, Mrs. Murphy had given appellees a deed for a tract of land that encompassed the road and the area in dispute but did not mention appellants' easement. It was recorded on May 5, 1988. At trial, Mrs. Murphy denied executing the easement, but her signature on the instrument was proved by the testimony of her niece and that of a hand-writing expert.

In 1998, appellants asked appellees to allow them to dig a ditch along the side of the road on appellees' property to prevent water runoff from coming onto appellants' porch. Appellees refused, and appellants filed a complaint asking that the court decree the right of way to be valid and superior to the appellees' claims or to find that appellants had acquired the property in dispute through adverse possession. Appellees argued that appellants do not have a valid claim and alternatively that appellees have adversely possessed whatever rights appellants might have had in the property outside the existing roadway. The trial court found that because appellees' deed was recorded prior to the written easement and because appellants' use was confined to the existing roadway, appellees did not receive actual or constructive notice of appellants' claim to any easement other than the roadway.

The only issue for review is whether the trial court erred in finding that the appellees did not have actual notice of appellants' claimed easement. We review chancery cases de novo on the record and the findings will not be reversed unless clearly erroneous. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000).

In Arkansas, every deed or instrument of writing affecting title to real property, which is required by law to be acknowledged or proved and recorded, shall be constructive notice to all persons from the time the instrument is filed for record; and no deed or writing for the conveyance of any real estate shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof, unless the writing is filed for record in the office of the clerk in the county where the real estate is situated. Ark. Code Ann. § 14-15-404 (Repl. 1998).

In the instant case, appellants obtained a written easement on May 3, 1988; however, this easement was not recorded until May 6, 1988, one day after appellees' deed was recorded. Nevertheless, appellants claim that even though their deed was recorded later, appellees had actual notice of the easement because appellants were using the south strip all along. The issue of whether appellees had actual notice is a fact question, and the chancery court will not be reversed unless clearly erroneous. In order for use to constitute notice, it has to be apparent as well as necessary and continuous, or the marks of the servitude must be open and visible; if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence except in so far as he may be charged with constructive notice under the recording laws. See City of El Dorado v. McHenry, 239 Ark. 232, 388 S.W.2d 554 (1965).

The only evidence appellants introduced of their use of the easement, other than the existing road, was testimony that they stored metal scraps on appellees' property lying within the twenty-foot easement. Appellant Charles Williams testified that in 1988 appellees asked him to remove those scraps and that he removed some of them, but left others. Appellee Charles Bales said that since 1988 he twice saw Charles Williams cut the grass around the area where the scraps were.

Appellants rely on Campbell v. Southwestern Telegraph & Telephone Co., 108 Ark. 569, 158 S.W. 1085 (1913), and claim it is almost identical to their situation. In Campbell, a railroad company purchased from an individual owner in 1885 a fifty-foot-wide right of way in order to build a railroad and roadbed, but this deed was not recorded until after the appellant had purchased her land in 1900. The railroad was built and was occupied by the company before 1900. Residents cultivated the lands up to the roadbed without objection from the railroad. In 1903 a telephone company obtained a right of way from the railroad and constructed telephone lines parallel to the railroad. The appellant sued the telephone company to recover damages for poles that were placed on her property. The trial court found that the railroad had been constructed and that the company's occupancy of the roadbed was sufficient to put all persons on inquiry as to the extent of the railroad company's rights. There were only three poles placed on the appellant's property, and the court ordered that those poles be removed within sixty days. The other seven poles that the appellant claimed were on her land were actually in the roadbed and therefore did not have to be removed. The appellate court affirmed the trial court's finding that the occupancy of the railroad and roadbed in this case was sufficient to put the appellant on notice.

The case at bar is distinguishable from Campbell because, here, appellants' use of the property in question was limited to the existing roadway. Appellant Charles Williams said that after he acquired the easement his use of the roadway had not changed much, and that by mere observation of the easement one would not have any notice of it. Furthermore, appellants acquiesced and moved some of the metal items stored on appellees' property when requested to do so by the appellees. Appellant Charles Williams also admitted that he asked appellees' permission to dig a ditch on land he considered part of the easement. Based on our review of the record, we cannot find that the decision of the chancellor was clearly erroneous in finding that appellees did not have actual or constructive notice that appellants claimed a right to use property outside of the existing roadway.

Affirmed.

Jennings and Bird, JJ., agree.