Thomas G. Inman and Lucinda A. Inman, husband and wife, and David B. Inman v. Connis Meskimen, Jeffery Eisenach, and Barry D. Baskin d/b/a Merganser Gadwell Farm Partnership

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

THOMAS G. INMAN and LUCINDA A. INMAN, Husband and Wife, and DAVID B. INMAN

APPELLANTS

V.

CONNIE MESKIMEN, JEFFERY EISENACH, and BARRY D. BASKIN d.b.a. MERGANSER GADWELL FARM PARTNERSHIP

APPELLEES

CA00-00924

JUNE 20, 2001

APPEAL FROM THE LONOKE COUNTY CHANCERY COURT

[NO. E1998-152]

HONORABLE PHILLIP T. WHITEAKER, CHANCERY JUDGE

DIRECT APPEAL MOOT; REVERSED and REMANDED ON CROSS-APPEAL

This appeal is from an order issued by the Lonoke County Chancery Court finding that equitable estoppel bars appellants from preventing appellees and their successors from traversing appellants' property. Additionally, appellees cross-appeal the chancellor's finding that they failed to prove entitlement to a prescriptive easement. We hold that the chancellor erred in failing to find that appellees were entitled to a prescriptive easement and reverse and remand on the cross-appeal. Because we hold that appellees are entitled to a prescriptive easement, appellants' appeal is rendered moot.

In 1996, appellants Thomas Inman, Lucinda Inman, and David Inman, purchased property in Lonoke County that almost completely surrounds appellees' property. Appellees Connie Meskimen, Jeffery Eisenach, and Barry D. Baskin formed the Merganser Gadwell

Farm Partnership and on March 10, 1991, purchased property in Lonoke County. The subject of this dispute is a dirt passageway that runs through the middle of appellants' property. This passageway is referred to throughout the record as both a turn-row and a road. For purposes of this opinion, we will refer to it as "the road."

Appellees never lived in the house on their property but instead used it for storage and for hunting purposes, and they accessed their property by using the road. In 1997, appellants leased their property to Don Kitler and he plowed the road and placed irrigation lines in the field to farm the property as a whole rather than two halves. On March 18, 1998, appellees filed a petition for a declaratory judgment, asking the court to grant them a prescriptive easement. The trial court found that appellees failed to establish a prescriptive easement but that the doctrine of equitable estoppel prevented appellants from blocking appellees from traversing appellants' property. The court ordered appellants to remedy the situation by either restoring the traditional road at appellants' expense, or by allowing appellees access to their property by means of another existing road across appellants' property.

Appellants' only point on appeal is whether the chancellor erred in applying the doctrine of equitable estoppel. Appellees' cross-appeal raises the issue of whether the chancellor erred in holding that appellees failed to establish a prescriptive easement.

Chancery cases are reviewed de novo on appeal; however, a chancellor's findings of fact will not be reversed unless clearly erroneous. Taylor v. Eagle Ridge Developers, LLC, 71 Ark. App. 309, 29 S.W.3d 767 (2000). The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding withrespect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000).

This issue in appellees' cross-appeal is whether the chancellor erred in holding that appellees failed to establish a prescriptive easement. 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. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998) (citing Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991)). However, we noted in Johnson, supra, that the supreme court has long recognized a variation in the general rule of law stated in Manitowoc, supra:

Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his 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, then such usage ripens into an absolute right.

Johnson v. Jones, 64 Ark. App. at 25, 977 S.W.2d at 906 (1998). In the instant case, both parties acknowledged that neither appellees nor their predecessors in title ever asked for permission to use the road. The facts show that there was a family living in the house on appellees' property as long ago as 1917. Appellee Barry Baskin testified that, although appellees have never lived in the house, they have used it for storage and for the orchard and maintained the premises surrounding the house. Mr. Baskin further testified that appellees never asked permission to use the road and never hid their use of the road. He said that at one point around 1991, Doyne Staton blocked their access to the road with a levee he built but that, when appellees asked him to remove the obstruction, he did so. Mr. Baskin alsosaid that, before appellees bought the property, they hunted there for several years and he drove down the road to look at the house before they bought it.

There was also testimony from Charles Henderson, a previous owner of appellees' property. He said that he was born on appellees' property in 1918, that he lived there many years, and that the property was in his family until they sold it to appellees in 1991. He further testified that the road had been there a hundred years and everyone was aware of the road and that he had never asked permission to use the road. Mr. Henderson said that, to his knowledge, the road was there until appellants plowed it up.

Gene Munnerlyn, a previous tenant on appellees' property, testified that he lived on the property from 1960 until around 1975, that he used the road, and that the road is visible from Staton Road. Additionally, Mr. Munnerlyn testified that Mr. Krablin, the previous owner of appellants' property, graded the road at one time because Mr. Krablin used it himself. Doyne Staton, a former tenant of appellants' property, stated that he farmed the property for approximately twelve years from the early 1980s to the mid 1990s. He said the road was in existence during the time that he farmed it and was visible and that he knew that people used the road to get to and from the house on appellees' property. Mr. Staton testified that he never tried to permanently stop anyone from using the road but that he may have inconvenienced them when he was watering his crops. He also testified that it would have been more convenient to farm the land as a whole without the road.

Dick Krablin, the previous owner of appellants' property, testified that he is familiar with appellees' property and the road that led to their property. He testified that his father bought the farm from his brother in 1950 but their family never lived on it. He said the farmwas later leased to Doyne Staton. He said the road was used as both a turn-row and a road. Mr. Krablin also testified that he assumed that the people living in the house on appellees' property used the road but that no one ever asked permission to use it. He said that he never attempted to block the road or prohibit people from using it.

Based on this court's holding in Johnson v. Jones, supra, the chancellor clearly erred in finding that appellees failed to establish a prescriptive easement. Our de novo review of the facts show that the usage of the road continued openly for many years. Further, there was testimony that it would have been easier to farm appellants' land as one field without the road down the middle. Appellants and their predecessors were aware of the road and of appellees' use of the road and never blocked the road. Appellees' and their predecessors, by virtue of their long usage of the road, established that their use had ripened into an absolute right.

The chancellor's ruling that appellants had failed to establish an easement by prescription was clearly erroneous. We reverse on this issue and remand for entry of an order consistent with this opinion because, as we held in Johnson v. Jones, supra, a chancellor's decree must describe a prescriptive easement with sufficient specificity so that it can be identified solely by reference to the decree. Our holding that appellees are entitled to a prescriptive easement on cross-appeal renders appellants' appeal on the issue of equitable estoppel moot; consequently, we need not address it. See Leonards v. E A Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995).

Reversed and remanded on cross-appeal.

Bird and Roaf, JJ., agree.