James Whorton and Lou Ann Whorton v. Leonard Needham and Janice Needham

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA00-773

MARCH 7, 2001

JAMES WHORTON and APPEAL FROM THE LOGAN

LOU ANN WHORTON COUNTY CHANCERY COURT

APPELLANTS NORTHERN DISTRICT [E-99-98]

v.

HONORABLE VAN B. TAYLOR LEONARD NEEDHAM and CIRCUIT JUDGE

JANICE NEEDHAM

APPELLEES

AFFIRMED

This is a prescriptive easement case in which appellants, James and Lou Ann Whorton, claim a prescriptive easement for a gas pipeline constructed from a gas company main that runs east and west through the property of appellees, Leonard and Janice Needham. Appellants acquired their lot, which is situated in Logan County, in 1995, and appellees have owned the lot north of appellants' lot since 1990. The gas line servicing appellants' property was allegedly constructed in a southerly direction from a residential gas meter situated above the ground on appellees' property, in a recorded gas company easement.

In their complaint filed June 16, 1999, the appellants alleged the following pertinent facts:

5. In or about 1966, Plaintiff [Appellant] James Whorton's father owned the lands now owned by Plaintiffs, and that said James Whorton's father entered upon the lands described as that of the Defendants [Appellees] openly, notoriously and adversely, and thereunder constructed a gas pipeline from the gas company main running east and west through the lands of the Defendants, said construction being in a southerly direction a distance of 1800 feet or so, to the home now occupied by the Plaintiffs.

6. That such pipeline was maintained by Plaintiff's predecessor and subsequently by the Plaintiffs continuously for a period exceeding thirty (30) years.

7. In or about April, 1999, the Plaintiffs were notified by the gas company operating the gas main pipeline that Plaintiff's line was leaking and needed repair, and until such repairs were made, the service line of the Plaintiffs would be disconnected. Thereupon, the service line was disconnected to allow Plaintiffs to make necessary repairs.

8. Plaintiffs prepared to enter upon the land of the Defendants with the intention of repairing the same, and were confronted by Defendant Leonard Needham, who demanded that Plaintiffs cease and vacate Defendant's lands.

Appellants asserted in their complaint that they were entitled to a temporary restraining order and a permanent injunction enjoining the appellees from interfering with the "peaceful use of their prescriptive easement across the lands of the [appellees] for the purpose of maintaining, repairing, and/or replacing the gas service line to [appellants'] home." They further sought a declaratory judgment that their actions and that of their predecessor amount to a prescriptive easement.

Appellees answered the complaint and affirmatively pled that they were bona fide purchasers without notice of any claim by appellees. In their counterclaim, appellees asserted that appellants had no written easement for the use of their property, that no prescriptive easement existed in favor of appellants, and that they were entitled to atemporary restraining order and permanent injunction prohibiting appellants from entering their lands.

Appellees next moved for summary judgment on the ground that no genuine issue of material fact exists in this case. In their brief in support of the motion, appellees stated that the appellants admitted that they had no written or recorded easement for the gas line and that the alleged gas line easement had not been mowed, marked, or maintained by the appellants or their predecessors in interest.

Attached to the brief was the affidavit of appellee Leonard Needham. Needham stated that he was aware of a gas meter located on the easement owned by Arkla, and that it was his belief that the gas meter was for the gas line that runs east to west across his property. Needham stated, however, that he had no knowledge of the alleged gas line that runs north to south between his property and appellants' property. He stated that the area of his property on which the appellants claim there is a gas line easement is covered by trees and has never been mowed or maintained by any party. Both appellees stated by affidavit that they were unaware of the existence of the gas line that runs to appellants' house until appellants notified them of such, immediately prior to the filing of this lawsuit. Needham also stated that appellant James Whorton told him "that the easement for the gas line to [Whorton's] property was the result of an oral agreement between both parties' predecessors in title."

These allegations were not denied by James Whorton in his affidavit attached to the appellants' response to the motion for summary judgment. In his affidavit, Whorton statedthat "at approximately the midpoint of the pipeline in its crossing of the [appellees'] land, [his] predecessor caused to be constructed a meter area above the ground surrounded by welded pipe to protect the same." He stated that a photograph attached as an exhibit to his affidavit showed "well worn tracks made by Arkla Gas Company employees for the purpose of reading the meter . . . ." Whorton also stated that upon inspection of the property, the appellees could easily find the gas meter area as well as the well-worn tracks from the meter reader, and that such an inspection should have given appellees notice of the prescriptive claim of the appellants.

In reply to appellants' response to the motion for summary judgment, appellees stated that the photograph attached as an exhibit to appellants' affidavit does not display the easement at issue which "runs north from the Arkla main south to the [appellants'] property," but instead reflects the Arkla easement that runs east to west on their property. Appellees stated that the pipeline was installed underground and that there was no outward indication of the alleged easement that would have put them on notice of appellants' claim of an unrecorded easement. The appellees further stated that the "well worn" tracks referred by Whorton in his affidavit, were located on the easement granted to Arkla Gas Company, and not the easement at issue in this case.

The chancellor determined that based upon the pleadings, motions, and affidavits filed by the parties, no genuine issue of material fact existed in this case. The chancellor granted appellees' summary judgment motion and quieted title to appellees' property in appellees. On appeal, appellants assert that the trial court erred in granting appellees' summaryjudgment when there existed a genuine question of fact as to their claim of prescriptive easement for the gas line.

In summary-judgment cases, the appellate court need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Norris v. State Farm Fire & Casualty Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Linn v. Nationsbank, 341 Ark. 57, 14 S.W.3d 500 (2000).

One asserting an easement by prescription must show 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). Prescription is the acquisition by an adverse user of title to a property right which is neither tangible nor visible, as distinguished from the acquisition of title to the land itself by adverse possession. Smith v. Loyd, 68 Ark. App. 127, 5 S.W.3d 74 (1999). 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. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). Whether an easement is apparent is a question of fact. Id.

In order to affect the purchaser of a servient estate, the easement, if unrecorded, must be one that is apparent as well as necessary and continuous or the marks of the servitude must be open and visible. Dixie Furniture Co. v. Ark. Power & Light Co., 19 Ark. App. 160, 718 S.W.2d 120 (1986). 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. Id. On the other hand, the proposition that a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question. French v. Richardson, 246 Ark. 497, 438 S.W.2d 714 (1969)(quoting Am. Jur., Easement, 156 (1957)).

In the present case, there was no actual notice to the appellees and there was no evidence that the appellees were charged with notice of the alleged gas line's existence. In Childress v. Richardson, 12 Ark. App. 62, 670 S.W.2d 475 (1984), this court found that an easement was not created where the appellants lacked notice of an underground, non-visible gas line. Like the gas line in Childress, the present gas line is underground and not apparent upon an ordinary inspection of the premises. The area surrounding the alleged gas line easement was never mowed or maintained by the appellants or their predecessors, and the easement itself was covered by many trees.

Moreover, when appellees presented evidence that the "well worn" tracks and the constructed meter area were associated with the gas company's recorded easement,appellants did not provide proof to rebut the same. Appellants also failed to rebut appellees' assertion that appellant James Whorton stated that the easement at issue was the result of an oral agreement between both parties' predecessors in title. We note that permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Johnson, supra. For use by permission to ever ripen into title, the claimant must put the owner on notice that the way is being used under a claim of right. Id. Appellants failed to meet proof with proof in this case. We thus affirm the grant of summary judgment.

Affirmed.

Stroud, C.J., and Jennings, J., agree.