William Cross and Shelli Cross, d/b/a Cross Roofing and Sheet Metal v. Ouachita Railroad, Inc.

ca01-648

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

DIVISION II

CA01-648

March 20, 2002

WILLIAM CROSS and SHELLI CROSS, AN APPEAL FROM UNION COUNTY

d/b/a CROSS ROOFING AND CHANCERY COURT

SHEET METAL NO. E-2000-69

APPELLANTS

HONORABLE EDWARD P. JONES,

CHANCELLOR

OUACHITA RAILROAD, INC.

APPELLEE AFFIRMED; REMANDED IN PART

William Cross and Shelli Cross, d/b/a Cross Roofing and Sheet Metal, have appealed from an order of the Union County Chancery Court establishing an easement in favor of appellee Ouachita Railroad, Inc., across appellants' property and awarding to appellee on the basis of adverse possession a parcel of real property to which appellants have record title. We affirm the chancellor's decision and remand for further findings on one point.

Facts

The parties have a common grantor. For many decades, the Chicago Rock Island and Pacific Railroad (Rock Island) owned all of the property currently owned by appellants and appellee. Rock Island operated an extensive railroad yard containing buildings, tracks, and other equipment, where it employed over 100 people. This property is located on the west side of South Washington Avenue, which is a major thoroughfare in El Dorado. In the early1980s, Rock Island went into bankruptcy, and its property was sold. In 1984, the East Camden & Highland Railroad (EC&H) purchased a portion of the railroad yard, and its employees and customers used a long-established road that leads from South Washington Avenue, along the south side of a building now owned by appellants, to the railroad facilities in back. Appellee's parent company acquired EC&H's property in 1990. In the 1980s, J.S. Beebe acquired from Rock Island the portion of the railroad yard that abuts South Washington Avenue. Rock Island reserved a twenty-foot easement across that land. Throughout Mr. Beebe's ownership of the property, EC&H's and appellee's employees and customers continued to use this road over his property for access to the railroad.

Appellants purchased Mr. Beebe's property in 1996 and established a roofing business there. They objected to the heavy traffic traveling from South Washington Avenue to the railroad's property in back. After appellants attempted to block the road, appellee filed suit on January 20, 2000, and obtained a temporary injunction prohibiting appellants from blocking the road. After the temporary injunction was entered, appellants commissioned a survey of their property and learned that the description in their deed included land lying between their building and appellee's railroad office as well as land behind the railroad office. This land, which does not front South Washington Avenue, had been used by the various railroads for many years. At that point, appellee amended its petition to claim title by adverse possession to that portion of the land that it had actually possessed, which was referred to by the parties as Parcels 1 and 2. Appellants filed a counterclaim for damages caused by appellee's replacement of a water line across appellants' parking lot and sought removal of that line.

After a lengthy trial, the chancellor found that appellee had established an easement by prescription and by implication where the road presently exists. The chancellor denied appellee's claim for adverse possession of Parcel 1 but found that appellee had established title to Parcel 2 by adverse possession. The chancellor found that Ark. Code Ann. § 18-11-106 (Supp. 2001), which was enacted in 1995, should not be applied retroactively. However, he also found that appellee had complied with that statute by paying ad valorem taxes for seven years on contiguous property. The chancellor denied appellants' claim for damages caused by the installation of the water line and rejected their request for an order directing appellee to remove it because appellants had failed to prove that this line had diminished the value of their property. From that order, comes this appeal.

Arguments on Appeal

Appellants have raised the following four points on appeal:

I. The chancellor erred in expanding the scope and use of the prescriptive easement across appellants' property;

II. The chancellor's finding that appellee had adversely possessed Parcel 2 was clearly erroneous;

III. The chancellor erred in refusing to require appellee to move its water utility line;

IV. The judgment fails to adequately describe the location of the easement or the land adversely possessed by appellee.

Appellants, however, have not appealed from the chancellor's finding of an easement by implication. The trial court's decision will be affirmed when an appellant attacks only one of two alternative reasons given for the decision. Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Therefore, we decline to address appellants' argument concerning the prescriptive easement and affirm on that point.

The Nature and Extent of the Easement

Appellants next argue that, if this court affirms the chancellor's finding that appellee is entitled to an easement, it should hold that the easement's location and use should not include that portion of appellants' parking lot that has recently been used by eighteen-wheel trucks. Appellants contend that, since 1996, the traffic along this route has deviated from the twenty-foot easement described in Rock Island's deed to Mr. Beebe and has impermissibly increased the burden on appellants' property.

The extent of a prescriptive easement is fixed by the use through which it was created. Restatement of Property § 477 (1944). However, the use under which it arises "determines the general outlines rather than the minutest details of the interest." Id., cmt. b. When an easement is acquired by prescription, the nature of the use cannot be changed to render it more burdensome to the servient estate than it was during the prescriptive period. Williams v. Owen, 247 Ark. 42, 444 S.W.2d 237 (1969). In the case of an easement by prescription, both its creation and extent are ascertained from the adverse use of the property over a long period of time. Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972). The chancellor's findings in this regard will not be reversed unless they are clearly erroneous. Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987).

The evidence demonstrated that the easement exists where the road is now located. Plaintiff's Exhibit 9, which is a plat of the easement prepared by surveyor Lamar Kelley, shows that the road has a width of sixty-four feet at its intersection with South WashingtonAvenue and narrows as it passes appellants' building. Mr. Kelley testified that he based these measurements on his personal observations of the road. Because the chancellor's finding in this regard is not clearly erroneous, we affirm on this point.

Adverse Possession

Appellants argue in their second point on appeal that appellee failed to establish adverse possession of Parcel 2. According to appellants, appellee's adverse possession claim should have been denied because it failed to satisfy Ark. Code Ann. § 18-11-106 (Supp. 2001), which requires that an adverse claimant show color of title to either the disputed property or property contiguous to it and payment of taxes thereon for more than seven years. Appellants argue that appellee paid taxes only on its personal property. This statute was enacted in 1995. It is not necessary, however, that we address whether the statute should be applied retroactively, because the evidence supports the chancellor's finding that appellee did pay its real property taxes and, therefore, met the statute's requirements. On this matter, the chancellor made the following findings:

The defendants offer A.C.A. 18-11-106 as a defense to the claim of plaintiff that ownership of the property has occurred by adverse possession. That statute, passed by the General Assembly in 1995, requires an adverse possession claimant to hold color of title and pay ad valorem taxes for seven (7) years on the property or contiguous property. The office building and the land it sits on are owned by plaintiff and are contiguous to parcels one and two. The payment documents from the ad valorem tax collecting authorities may indicate that the nature of this property is personal rather than real, but the evidence here reflects it is real property. Also, A.C.A. 18-11-106 does not indicate that it is to apply retroactively rather than prospectively and without such express legislative intent it should be applied prospectively.

Appellants first point to the testimony of Vicki Deaton, Union County's Chief Deputy Tax Assessor, who said that her office records did not indicate any assessment of realproperty by appellee. Appellee, however, proved that it is required by law to report its real property and pay taxes thereon to the Arkansas Public Service Commission and introduced into evidence Plaintiff's Exhibit 18, the tax reporting form. Appellants assert that this form reflects that appellee paid taxes only on its building and railroad tracks, which were listed thereon as personal property. Therefore, appellants argue, appellee did not establish that it paid taxes on its real property as the statute requires. The form, however, contains this statement: "This certificate includes both real and personal property within the meaning of our statutes." "Real property" is defined as "[l]and and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land." Black's Law Dictionary 1234 (7th ed. 1999). See also Pledger v. Halvorson, 324 Ark. 302, 921 S.W.2d 576 (1996); Garmon v. Mitchell, 53 Ark. App. 10, 918 S.W.2d 201 (1996). Obviously, appellee's building and railroad tracks are within the definition of real property. The chancellor did not clearly err in finding that appellee paid ad valorem property taxes.

Appellants also contend that appellee failed to satisfy the remaining elements of an adverse possession claim. To prove the common law elements of adverse possession, an adverse claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). For possession to be adverse, it is necessary that it be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land. Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780(1998). Hostile intent must be clearly demonstrated. Dillaha v. Temple, 267 Ark. 793, 590 S.W.2d 331 (Ark. App. 1979). When a landowner, who is mistaken as to the true boundary between his land and that of another, takes possession of another's land and occupies it under claim of ownership for the statutory period, he will become the owner of that land. Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444 (1906). It is ordinarily sufficient proof of adverse possession that the claimant's acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. See Anderson v. Holliday, supra. The true owner of adversely-possessed land can receive actual knowledge of the adverse nature of the possession by its very openness and notoriety. Id. Also, a claimant may "tack on" the adverse-possession time of an immediate predecessor in title. See Pollins v. Pettus, 249 Ark. 67, 458 S.W.2d 724 (1970). To prevail on a claim of adverse possession not under color of title, one must show actual possession to the extent of the claimed boundaries. Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973).

Whether possession is adverse to the true owner is a question of fact. Anderson v. Holliday, supra. This court will not reverse a chancellor's finding of fact regarding adverse possession unless it is clearly erroneous. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). In reviewing a chancellor's findings with regard to adverse possession, due deference is given to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. When the evidence is conflicting or evenly poised, or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is persuasive. Id.

Regarding appellee's claim of adverse possession, the chancellor found in his letter opinion:

The plaintiff contends that it has acquired ownership of parcels one and two through adverse possession. One of the characteristics of possession of property required before the conclusion can be made that the property is owned through adverse possession is that it be possessed exclusively. The testimony here indicates that since the plaintiff acquired its property in 1990 plaintiff has occupied parcel one but it has also been occupied by the predecessor in title to defendants, J.S. Beebe, Jr., et ux. Witnesses for both plaintiff and defendants all testified that Mr. Beebe stored oil field pipe and other equipment on large racks which were located on the property described as parcel one. As the property was occupied and used by both plaintiff and the predecessor in title to defendants, the plaintiff has failed to prove by a preponderance of the evidence that it has acquired parcel one through adverse possession for seven (7) years.

The same possession characteristics applicable to parcel one do not apply to parcel two. Since 1990 the possession of parcel two by plaintiff and its immediate predecessor in title, Arkansas Shortline Railroad, has been exclusive. In addition to mowing and maintaining this property the plaintiff has erected structures on the property. It installed air pipelines and a concrete slab on which air compressors were connected. It built a shop building onto the land which has been used to repair railroad equipment. A customer of plaintiff has also used the property to clean its rail cars. There is some evidence that the predecessor of defendants, Mr. Beebe, at some time stored some concrete and timbers on parcel two. However, observation of this tract of land clearly indicates that it is being occupied and claimed exclusively by the plaintiff. It is the conclusion of this Court that the plaintiff has sustained its burden of proving that it has acquired ownership of parcel two by adverse possession of that property.

Appellants argue that appellee failed to prove that it had possession of Parcel 2 for seven years; that its possession of Parcel 2 was exclusive; and that it intended to hold this property adversely to appellants and Mr. Beebe. We disagree.

In his letter opinion, the chancellor acknowledged that there was some evidence that Mr. Beebe had stored some concrete and timbers on Parcel 2 at "some time." He resolved that factual question by finding that the property has been used exclusively by appellee. Wedo not think that he clearly erred in doing so. As appellee points out, most of the testimony cited by appellants on this issue related to Parcel 1, to which appellee did not prove adverse possession. Also, Mr. Beebe and his wife testified primarily about their use of Parcel 1.

We also hold that appellee established the other elements of its adverse possession claim. It introduced evidence that, at least since 1992, it had placed the following items on Parcel 2: an air compressor, air tanks, air lines on a concrete slab, a rail car, switches, plates, bars, rails and other track materials, concrete, a fuel car, a spur track, power poles, a repair track, and a water system. Further, appellee periodically cleaned up the area. Also, the record soundly demonstrates that appellee never sought or received permission to use Parcel 2.

We affirm the chancellor's finding that appellee established its claim of adverse possession to Parcel 2.

The Water Line

In their third point, appellants contend that the chancellor erred in refusing to award them damages for appellee's replacement of a leaking water line across their property or to order appellee to remove the line. The chancellor stated:

Finally, the defendants contend that the plaintiff caused to be laid across the property of defendants a water line which has resulted in a decrease in the value of the property of defendants. The evidence reflects that this water line was laid in the location of an old existing water line and the evidence is not convincing that the new line has in any way diminished the value of the property of defendants. For that reason the claim by defendants for damages or alternatively to order the plaintiff to remove the water line should be denied.

Appellants support their argument with the testimony of Virginia Risinger, a real estate broker and appraiser, that appellants' property had been reduced in value by ten totwenty percent as result of the water line, the easement, and appellee's adverse possession. Appellants, however, did not prove how the water line itself had damaged their property. Also, appellee introduced the testimony of Shane Calaway, the plumber who laid the new water line. He said that he placed a two-inch water line alongside a pre-existing four-inch water line that was leaking and that would eventually have caused problems for appellants. A trial court's refusal to award damages for trespass will be affirmed where the appellant failed to show that he sustained damages. See Brockman v. Rowell, 235 Ark. 847, 362 S.W.2d 678 (1962). It is also apparent that the chancellor believed that appellee already had a prescriptive utility easement along the old water line, which had been in that location for decades. If so, appellee would have had the right to reasonably maintain that easement. See Foran v. Molitor Ford, 279 Ark. 121, 649 S.W.2d 177 (1983). We are not constrained by the trial court's rationale but may go to the record for additional reasons to affirm its decision. Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999).

We affirm the chancellor's decision on this point.

The Description of the Property

In the order, the chancellor found that the easement's location is "where the road presently exists" and referred to the description of Parcel 2 set forth in Plaintiff's Exhibit 4, which he stated was attached to the order. That exhibit, however, was not attached to the order. In their fourth point on appeal, appellants make the following assertion: "When a decree fails to describe a prescriptive easement with sufficient specificity so that it can be identified solely by reference to the decree it is error. If the easement cannot be clearly described, there is no easement." Appellants are wrong.

Where the order in question involves a disputed property line, the chancery court's decree must describe the boundary line with sufficient specificity that it may be identified solely by reference to the decree. See Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), where the supreme court dismissed the appeal as non-final because it was intended that a survey would be completed in the future and the chancellor had not yet defined the boundary lines.

Dismissal is not always necessary, however. When nothing remains to be done, but a chancellor's decree does not describe a prescriptive easement with sufficient specificity so that it can be identified solely by reference to the decree, we may remand for the chancellor to amend the decree and provide the easement's legal description. In Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998), we remanded in part so that the chancellor could amplify and correct the decree by adding a precise legal description of an easement, which he had described in the decree as a line for which no width was given. In Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997), we granted leave to the chancery court, under Arkansas Rule of Civil Procedure 60, to amend the decree by adding a more specific description of the boundary line between the parties' land. In that case, the decree had described the boundary line as a meandering fence reflected by a survey. In Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970), the decree had ordered the boundary lines to be fixed in accordance with a blazed line and monuments set forth in a survey. The supreme court remanded the case to the trial court for the establishment of the boundary lines with such certainty that they could be identified by reference to the decree. None of these cases hold,as appellants argue, that an insufficiently-described easement means that there "is no easement."

Therefore, we remand on this point so that the chancellor can more specifically describe the easement and Parcel 2.

Affirmed; remanded in part.

Pittman and Crabtree, JJ., agree.