Domicile Hunting Club, Inc. v. Charles Clowney et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION II

DOMICILE HUNTING CLUB, INC.

APPELLANT

V.

CHARLES CLOWNEY, et al.

APPELLEE

CA 99-149

SEPTEMBER 6, 2000

APPEAL FROM THE ARKANSAS

COUNTY CHANCERY COURT,

SOUTHERN DISTRICT

[NO. E-94-124]

HONORABLE F. RUSSELL ROGERS,

CHANCERY JUDGE

REVERSED

Appellees Charles Clowney, et al., brought an action against appellant Domicile Hunting Club, Inc., in Arkansas County Chancery Court, claiming entitlement to a prescriptive easement over appellant's property. After a trial on the matter, the chancery court granted an easement that "runs roughly in a north/south direction slightly west of [appellant's] east property line." From that decision, comes this appeal.

Domicile Hunting Club raises two points in support of its contention that the chancery court erred in granting the prescriptive easement. First, it argues that the appellees failed to prove that their use of the road was adverse and not permissive. Next, it argues that the appellees failed to sufficiently identify the location of the asserted easement.

The standards we apply when reviewing a chancery case are well established. Although tried de novo on review, we do not reverse unless we determine that the chancery

court's findings are clearly erroneous. Adkinson v. Kilgore, 62 Ark. App. 249, 970 S.W.2d 327 (1998). In reviewing a chancery court's findings of fact, we give due deference to the chancellor's superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Id. A chancery court's finding of fact is clearly erroneous when, although there is evidence to support the court's decision, after looking at all the evidence we are left with a definite and firm conviction that a mistake has been committed. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998). In the case at bar we hold that the chancery court's decision to grant the easement was clearly erroneous and, therefore, we reverse.

The evidence adduced at trial revealed that the appellant's property consists of a forty-acre square tract of land that borders appellees' property on appellant's northern and western boundaries. The appellees' property forms an L-shape around appellant's property. The appellant's property consists of unenclosed woodlands that are used almost exclusively for hunting. The only structure on appellant's property is a cabin located near the southeast corner. The easement asserted by the appellees, and granted by the chancery court, runs from the southern border of appellant's property, between the cabin and the eastern border of the property, to the parties' boundary line located on appellant's northern border. The appellees claimed that there is a road at that location that has been used for more than ten years for ingress and egress to their property for hunting purposes.

Tom Hearndon, president of the Domicile Hunting Club since 1988, testified first at the trial. He stated that he has owned an interest in appellant's property since 1961. Mr. Hearndon testified that he has never been aware of any road or trail crossing the property toward the appellees' tract. He further stated that he has never given anyone permission to use any road or trail. According to Mr. Hearndon, he has never seen anyone crossing appellant's property in the last twenty-five years. He acknowledged that, about a year after the lawsuit was brought by the appellees in 1994, the appellees bulldozed a portion of appellant's property in the area where the easement was claimed. However, he asserted that before then there were no signs of a road and that, "No one ever requested permission to use the road because there is no road."

Dr. John Pike testified that he has hunted on the appellees' property for about fifty years. He stated that, when he was a child, he traveled a road over the appellant's property that is in the same area as the claimed easement, although he was not certain it was in the exact same location. Dr. Pike never performed any maintenance on the road and never saw any of the appellees' hunting club members doing any maintenance. He testified that a ditch was dug on the western boundary of appellant's property, which provided an alternate access to appellees' hunting grounds, but only by boat.

Charles Clowney testified that he has been a member of appellees' hunting club since 1961. He drew a map that purported to represent the course of the road that has been used to traverse appellant's property to appellees' hunting grounds. He stated that he has used the road on a regular basis for the last ten years. Mr. Clowney acknowledged that the road is "grown up in weeds" each summer, but indicated that the road is visible and has been commonly traveled with three-wheelers, four-wheelers, and occasionally pickup trucks. Hefurther stated that, in 1991 or 1992, the appellees drove a tractor down the road in order to plant food plots, with no objection from the resident of the cabin. Mr. Clowney maintained that there is no other way to get to the forty acres directly north of appellant's property other than by boat, and that this is not always possible because the water is sometimes too shallow.

David Robustelli testified that he has hunted the appellees' property since 1978. He stated that he made use of the road in question to hunt deer and make food plots from then until 1994. He acknowledged that he had never seen any maintenance or improvements to the road, but stated that the road does not require maintenance.

O.J. Johnston testified on behalf of the appellant. He stated that he has been a member of the Domicile Hunting Club and has hunted there since 1947. Despite hunting the eastern edge of the property regularly over the past ten years, he has never seen any trucks, ruts, or other signs of usage of any road. Nor has he seen any people using a road.

Roy Melton, secretary-treasurer of Domicile Hunting Club, has been a member for thirty years. He testified that, "The last ten to twenty years I am not aware of there ever being a trail or road or passageway that was used by anyone other than club members on the Domicile property."

The appellant's first argument on appeal is that the chancery court erred in granting the easement because the evidence showed that any use of the road was permissive and not adverse. 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 seven years. See Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). Since the useof the alleged road was not shown to be adverse, the appellant submits that the chancellor's order must be reversed. We agree.

The testimony of witnesses for both parties showed that the land in question is unenclosed and unimproved timberland, and the law is clear that use of a roadway over unenclosed and unimproved land is deemed to be permissive and not adverse. See Burdess v. A.P. & L. Co., 268 Ark. 901, 597 S.W.2d 828 (Ark. App. 1980). In the instant case, the president of Domicile Hunting Club testified that he never gave permission for anyone to cross the appellant's property, but this did not prove adverse use of the roadway because he also testified that there was no road and he never saw anyone crossing. The appellees' witnesses testified that, from time to time, they saw people on appellant's property while they were crossing the road. However, there was no evidence of any hostility until shortly before the lawsuit was filed, when the appellant allegedly placed a cable across the road. Because the road was through unenclosed and undeveloped woodlands, any use of it must be deemed permissive.

We are cognizant of the fact that permissive use of a roadway can convert into adverse use, but for this to occur there must be some overt activity on the part of the user to make it clear to the owner of the property that an adverse use and claim of right is being exerted. See Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968); Johnson v. Jones, supra. However, in the instant case, there were no overt activities that would have put the appellant on notice of a claim of right to use the roadway. As in Burdess v. A.P. & L. Co., supra, the trail was unimproved, had not been maintained, and was used only sporadically. Because there were no overt activities that caused appellees' use of the road to convert from permissive to adverse, no easement was ever created.

The appellant next argues that the chancery court clearly erred in granting the easement because the appellees did not sufficiently identify its location. However, based on our disposition of the first issue, we need not address this argument.

Reversed.

Koonce and Stroud, JJ., agree.