William Henry Norwood and Georgia Ann Williams v. Convie Dewey Bailey, II and Peggy McKee Bailey

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION IV

WILLIAM HENRY NORWOOD and GEORGIA ANN WILLIAMS

APPELLANTS

V.

CONVIE DEWEY BAILEY, II and PEGGY McKEE BAILEY

APPELLEES

CA00-556

February 7, 2001

APPEAL FROM THE FAULKNER COUNTY CHANCERY COURT

E99-68

HON. DAVID L. REYNOLDS

CHANCERY JUDGE

AFFIRMED

This is an appeal from an order of the chancery court granting appellees a prescriptive easement to a lane that runs across appellants' property. The chancellor found that appellees proved that the lane had been used to provide a means of ingress and egress to their property for a period of at least twenty years and that such use of the lane by appellees and their predecessors had been open and adverse to the rights of appellants and their predecessors. We agree and affirm.

In 1991, appellants, William Norwood and Georgia Williams, purchased a peninsula of property on Lake Conway consisting of 2½ acres and began living on the property shortly thereafter. In 1997, appellees, Convie and Peggy Bailey, purchased 3/10 of an acre located to the southeast of appellants' property. When appellees purchased the property, they knew that the property contained no right of access. Appellees accessed their property by driving up the county road that ended at appellants' property and then driving across a lane on the eastern edge of appellants' property.

Approximately a year and a half after purchasing the property, C.D. Bailey had a conversation with Mr. Norwood about the possibility of obtaining an easement to the lane. Mr. Norwood did not know he owned the lane until Mr. Bailey told him. The appellants at some point placed a chain across the lane, along with a no trespassing sign. The appellees filed suit on January 19, 1999, to obtain an easement across the appellants' property. They alleged that the lane had been used to provide a means of ingress and egress to their property for a period of at least twenty years and that such use had been open and adverse to the rights of the appellants. The trial court issued a mandatory injunction ordering appellants to remove the obstruction and to make no further attempts to obstruct appellees' access until a hearing on the matter.

A trial was held on May 20, 1999. C.D. Bailey testified that he knew he did not have an easement when he purchased the property, but he thought that he would be entitled to one because his property was landlocked. He stated that any other access from the county road would require him to cut through timber with a bulldozer and logging crew. He testified that when he viewed the property with a realtor, the lane appeared to have one years' worth of growth. Mr. Bailey expressed concern to the realtor about the access problem, but the realtor told him that one could not be landlocked in Arkansas. The realtor contacted the previous owner, Calvin Cotton, who stated that he used the lane to the property for twenty years.

Mr. Bailey testified that the lane did not have vehicle tracks when he visited the property in the spring of 1997, but that there were small ruts where vehicles had stopped during the rainy season. It did not appear as though the lane had been mowed or cut with machinery for approximately one year. He testified that there was no tall standing grass in the lane and that there were no saplings. His vehicle, a Jimmy, could drive straight over anything in the lane.

Mr. Bailey had a survey conducted prior to closing that revealed the lane was on Mr. Norwood's property. The surveyor of the property told Mr. Bailey that he would probably have a prescriptive easement because a landowner cannot be landlocked. Mr. Bailey testified that he didnot contact Mr. Norwood prior to closing about obtaining an easement, nor did he contact an attorney. Instead, he relied on the surveyor and the real estate agent.

Calvin Cotton, who previously owned appellees' land, testified that the lane was in existence prior to the time he purchased the property. He used the lane to access his property during the twenty years he owned it. He only lived on the property for approximately two weeks after he purchased the property in 1977 or 1978. He stated that there was never a time when he owned the property that he could not get his vehicle down the road. Mr. Cotton testified that no one ever restricted his access to the road.

Appellees also called Mr. Norwood to testify. Mr. Norwood testified that he did not know that he owned the lane until Mr. Bailey told him. On direct examination, Mr. Norwood stated that he did not see anyone drive down the lane during the nine years he had lived there. He testified that when he bought the property in 1991, there was not an identifiable lane. Mr. Norwood placed his fence where he assumed the property line to be according to his survey. He cleared out the area on the other side of his fence. He only remembered one vehicle using that area to access the land below him. Mr. Norwood testified that he wanted to use the land where the lane runs to claim some backyard and get his fence off the septic tank.

Appellants moved for a directed verdict, which the court denied. Georgia Williams testified in their defense. She stated that when she and Mr. Norwood purchased the property there was not anything resembling a road. She stated that the area was all grown up and that they cleared out the area to get a buffer against the woods and the snakes. When they discovered that they owned approximately twenty-one or twenty-two feet beyond their fence line, they had plans to remodel their house.

The trial court took the case under advisement and ultimately ruled that appellees wereentitled to a prescriptive easement in the property at issue, finding that the lane had been used to provide ingress and egress to their property for a period of at least twenty years and that the use has been open and adverse to the rights of appellants and their predecessors in interest. On appeal, appellants contend that the trial court erred in ruling that appellees are entitled to an easement by prescription across appellants' property.

Chancery cases are tried de novo on appeal. Kralicek v. Chaffey, 67 Ark. App. 273, 998 S.W.2d 765 (1999). However, we do not reverse a chancellor's findings of fact unless they are clearly erroneous. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. In reviewing a chancellor's finding of fact, we give due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

A party asserting an easement by prescription has the burden of proving by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period. Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000). The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Smith v. Loyd, 68 Ark. App. 127, 5 S.W.3d 74 (1999). In Gazaway, this court stated:

Where there is usage of a passageway over land, whether it be by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, thensuch usage ripens into an absolute right. Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Moreover, the length of time and circumstances under which the roadway was opened and used are sufficient to establish an adverse use. Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981).

Gazaway v. Pugh, 69 Ark. App. at 302, 12 S.W.3d at 666.

In the present case, the chancellor found that appellees proved that the lane had been used to provide a means of ingress and egress to their property for a period of at least twenty years and that such use of the lane by appellees and their predecessors had been open and adverse to the rights of appellants and their predecessors. In 1977, Calvin Cotton purchased the land that appellees now own. Mr Cotton testified that the lane was in existence prior to the time he purchased the property and that he used the lane to access his property until he sold it to appellees in 1997. At no time was Mr. Cotton's use of the lane ever restricted. Mr. Cotton testified that during the twenty years he owned the property there was never a time that saplings grew up in the middle of the lane preventing him from driving down the lane.

Marty Montgomery, the Faulkner County Deputy Sheriff, testified that he saw the lane nine years ago, but did not recall trees growing up in the lane. Carl Perron , a game and fish biologist who had been conducting routine checks of the shoreline of Lake Conway since 1970, testified that the lane was there every year and that the lane appeared to have been used in the 1970s, but that the landscape grew up in the 1980s. He recalled that saplings had turned into trees more than three to four feet tall and an inch or more in diameter during the 1980s to mid 1990s. Mr. Perron testified that he did not drive his vehicle down the lane when it was impassible and that the lane became opened up again in the mid to late 1990s. In addition, Jerry Earnhart, a professional land surveyor, testified that in 1993 he conducted a survey of the property now owned by appellees and recalled seeing the lane. From Mr. Earnhart's testimony, it is clear that the lane was also in existence whenhe surveyed the property again in 1997.

Contrary to the above testimony, Mr. Norwood and Ms. Williams both stated that there was not an identifiable lane when they purchased the property in 1991. Mr. Norwood only remembered one person drive down that area. The appellants' neighbor, Rick Readour, also testified that the area of the lane was so grown up in 1988 that you could not drive down in there. Mr. Readour stated that there was no lane when appellants purchased the property.

As we previously stated, we give due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony when reviewing a chancellor's finding of fact. Jennings v. Burford, supra. Although we might have decided the case differently if we were the finder of fact, we cannot say that the chancellor's findings were clearly erroneous. Therefore, we must affirm.

Affirmed.

Stroud, C.J., and Bird, J., agree.