Herbert W. Engelke and Judy Engelke et al. v. John Chelstrom et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

HERBERT W. ENGELKE AND JUDY ENGELKE, ET AL.

APPELLANTS

V.

JOHN CHELSTROM, ET AL.

APPELLEES

CA01-981

April 17, 2002

APPEAL FROM THE BENTON COUNTY CHANCERY COURT

[NO. E 2000-466-2]

HON. DONALD HUFFMAN,

CIRCUIT JUDGE

AFFIRMED

This is an appeal from the Benton County Chancery Court in which the chancellor denied the appellants' claim of a prescriptive easement over property belonging to appellee Rogers Bentonville Elks Lodge 2144. Appellants raise several points on appeal, attacking certain findings by the trial court and the trial court's decision denying admission of certain photographs into evidence. We find no error, and we affirm.

Appellants are Herbert and Judy Engelke; Richard and Sherry Bray; Stephen and Kathryn Sparks; and Paul and Deborah Allard. Appellants are owners of lots in Royal Oaks Subdivision outside the city limits of Rogers, Arkansas. The Engelkes own lots 17 and 16; the Brays own lot 15; the Sparks own lot 13; and the Allards own lot 14. The subdivision is located directly north of property owned by appellee Elks Lodge. The appellees' property

is bounded on the west by a county road. On the appellees' northwest corner, there is a paved driveway that extends along the common boundary for approximately 400 feet before it curves to the south and loops back upon itself. Appellants claim that, since 1980, their predecessors have used the paved portion of the Elks Lodge property to the point where it begins to curve south and from there have continued east across a grass portion to access the rear of their properties. Appellants claim that this usage continued at least twice a day for nineteen years and resulted in appellants having a prescriptive easement over the appellees' property. Appellants also have access to a county road via Arnold Avenue to Don Street to Lehman Drive. All of the appellants live on Lehman Drive. Lot 17 is the westernmost lot involved.

Arnold Lehman testified that he was the developer of the subdivision in 1972 and that he used the above described Elks Lodge property to view the subdivision property. Lehman testified that he built the house located on lots 16 and 17 and lived in it for some seven or eight years before selling it to appellants Engelkes. He stated that the home has two garages - one in front and another in the back of the property - and that the sole access to the back garage was over the Elks Lodge drive and then over an unpaved portion of the Elks Lodge property. Lehman also testified that he used the Elks Lodge driveway on a daily basis and that no one at the Elks Lodge told him not to use the drive. Lehman testified that he was a member of the Elks Lodge during this period. He also testified that, when he built the homes on lot 13 (owned by the Allards) and lot 15 (owned by the Brays), he used the Elks Lodgeproperty. Lehman further testified that he saw the predecessors in title of lots 13, 14, and 15 use the Elks Lodge property to access the rear of their lots.

Appellant Deborah Allard testified that she and her husband have owned lot 14 since 1998 and that they use the Elks Lodge drive about once a month to get to the rear of their property. She testified that they would mow the Elks Lodge property back to the brush but also testified that the grass portion of the Elks Lodge property behind her house did not get all that much use. She testified on cross-examination that she did not use the Elks Lodge drive with the intention of taking the Elks Lodge property.

Appellant Paul Allard testified that the appellants Engelkes have used more of the Elks Lodge property than he has and that, behind the Engelkes' property, there was more evidence of a dirt path that he followed. He testified that he trimmed some vines and overgrowth on the Elks Lodge property. He estimated that, since he has lived there, he had used the disputed area twenty-five to thirty times but not once a month. Allard also stated that, until 1999, no one from the Elks Lodge told him not to use the property. He testified on cross- examination that he never thought about whether he was using the property against the Elks Lodge's wishes or that he and his children were trespassing.

Appellant Stephen Sparks testified that he has owned lot 13 since July 1995 and has observed the prior owners making use of the disputed area to get to the rear of the property. He said that he made extensive use of the disputed area during certain times of the year to access the rear of his property and to install a whirlpool. He also said that the road was not very grassy behind the Engelkes' property, and that he observed utility company workersusing the Elks Lodge drive. Finally, he said that no one from the Elks Lodge told him not to use the property until the fall of 1999.

Appellant James Bray testified that he was purchasing lot 15 under a contract and that he lived there from March 1996 until July 2000. He stated that he used the Elks Lodge property to store his Sea-Doo jet skis, for the delivery of firewood, and to service his septic system. Mr. Bray testified that he mowed some thirteen to sixteen feet south of his property line but that he was not sure of the exact location of the line.  On cross-examination, he testified that, until 1999, he thought the area behind the house was his property but that access was via the Elks Lodge property. He further testified that he was not using the property adversely to the Elks Lodge but was simply using it as public property, stating that he assumed the road was there for anyone's use.

Appellant Judy Engelke testified that she and her husband purchased lots 16 and 17 from the Lehmans in 1980. She stated that no one from the Elks Lodge ever gave them permission to use the property or ever told them not to use the disputed area until November 1999. She testified that her house has a back drive and garage that are accessed from the Elks Lodge drive then over some gravel. She also testified that the Lehmans also used the Elks Lodge drive. She testified that she and her husband used the Elks Lodge property at least once or twice per day until they were told to stop in 1999. She further testified that they mowed to the south and west of their property after the Elks Lodge quit mowing between 1983 and 1985. She said they would see people using the drive when they worked night shifts. She also testified about use that the predecessors in title of lots 13, 14, and 15made of the disputed drive prior to the current owners. Mrs. Engelke also stated that she did not use the property with the intent to take the Elks Lodge property and that the predecessors in title to lots 13, 14, and 15 did not use the property with the intent to deprive the Elks Lodge of their property. She testified that she and her husband did not ask permission for their contractor to put the dumpster on the Elks Lodge property in 1999 when the Engelkes extended their garage to the south, installed double doors at the entrance, and raised the roof on the entire house. She also testified that she did not notice "no trespassing" signs prior to 1999.

Appellant Herb Engelke testified that the disputed area is the primary means of getting to the back of his house and that he would use it at least once a day. He testified that no member of the Elks Lodge gave him permission to use the drive and that no one told him he could not use the drive until the fall of 1999. He testified that he started mowing on the Elks Lodge property in 1983 or 1984. On cross-examination, he testified that he would normally leave for work between 1:00 and 2:00 p.m. by means of the disputed area and that the activity at the Elks Lodge was primarily at night. He also stated that it did not occur to him that he was using the Elks Lodge's property against their interest and that he did not dispute the Elks Lodge being concerned over his use of their property. On re-direct, he testified that a person using the Elks Lodge drive could look off to the left and see evidence of car travel behind his house. On rebuttal, he testified that it was possible that a volunteer from the Elks Lodge was also mowing in the disputed area.

Appellee Ronald Goodman testified that he was secretary of the Elks Lodge going back fourteen years to the 1980s and during that time he would be out at the Lodge two or three times per week. He testified that there were two "no trespassing" signs placed on the Elks Lodge property. He also said that he did not see any use of the disputed area and did not know that it could be accessed. He testified that, in November 1999, some members became concerned about construction at the Engelkes and construction materials being placed on the Lodge property. He also testified that a request for a right-of-way by a neighbor to the east had been voted down by the Elks Lodge.

Suzanne Molton, a former resident manager and current manager of the Elks Lodge, stated that she had seen someone using the disputed area on occasion, including dumping fireplace ashes, but that they would stop when asked to do so. She also put up "no trespassing" signs between 1983 and 1992. She also testified that one of her duties was to mow over five acres of the property up to the property line. On cross-examination, she stated that, between 1983 and 1992, one could not drive cars further east down the disputed area past lots 16 and 17. She also admitted that she saw someone going in and out of the Engelkes' drive and around the neighborhood over the nine or ten years that she lived on appellees' property. She also said that her husband told someone to stop using the disputed drive but that she did not know who it was and that she notified the Lodge hierarchy.

Fred Phillips, the resident manager of the Elks Lodge property from March 1992 until March 1996, testified that he took care of the Lodge property, including mowing. He testified that the area between lots 13 and 16 was "pretty grown up" and that he did not seeanyone going back there. He said that there did not appear to be regular vehicle traffic beyond the end of the blacktop and that he did not notice anyone using the road to access appellants' property on a regular basis, which is once a week or once every two weeks. On cross-examination, he testified that it might be possible that vehicles were going in and out on a regular, daily basis but that he did not see them. On re-direct, he testified that, if he had seen anyone using the property on a regular basis, he would have been concerned and would have told them it was private property. He said that he did not approach anyone he saw using the property to tell them to stop.

Clarence Bassham testified that he was the Exalted Ruler of the Elks Lodge from 1975 to 1977 and again from 1997 until 1998. He stated that, during that time, he was on the property almost on a daily basis and certainly on a weekly basis. He said that, during the 1970s, he did not see anything that looked like a roadway used by vehicular traffic. He also testified that, between 1994 and 1998, he observed that the disputed area was open but not being used as a roadway. He stated that he saw that the area behind lot 17 was mowed down but he did not recognize it as a roadway. He said that, during the period going back to the 1980s, it did not come to his attention that anyone was trying to use the disputed area to access the property. Bassham testified that he did not see anyone drive across the disputed property on a regular basis or park vehicles or boats on it. On cross-examination, he stated that it was possible that the owners of lot 17 could have gone in and out twice a day without being seen and that it was also possible, but not probable, that the owners of lots 13, 14, and 15 could have gone in and out once a week without being seen. Bassham also testified that,in 1999, he was concerned about a dumpster that had been placed on the Elks Lodge property.

Robert Shumate testified that he was the Lodge's Exalted Ruler in 1984-1985, on the Lodge's Board of Trustees for five years, Exalted Ruler again in 1998-1999, and Secretary from 1999 until present. Shumate testified that, during the time when he was the Exalted Ruler, he was at the Lodge on a daily basis and did not notice anyone using the Elks Lodge property as a driveway. On cross-examination, he said that vehicles could get to the rear of appellants' property either by using the Elks Lodge drive or by using the road off Lehman Drive (apparently referring to Don Street). On re-direct, Shumate testified that, until the fall of 1999, he was not concerned about anyone trying to claim the Elks Lodge property.

Appellees also presented the testimony of Bill Bliss, a Lodge member since 1992, who served as Exalted Ruler in 1995-1996. Bliss testified that, during the period when he was the Exalted Ruler, he was at the Lodge three or four times a week and did not notice anyone crossing the Elks Lodge property. He recalled two occasions prior to the Engelkes' construction when people were parked at the end of Don Street and he asked them to leave the Elks Lodge property. He said that it was not brought to his attention as an officer of the club that anyone was using this drive to access property in the subdivision. On cross-examination, he said that it was possible but unlikely that the Engelkes used the property as they testified.

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 thestatutory period. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998); Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996). Our supreme court has considered the period for acquiring a prescriptive right-of-way as analogous to the statutory seven-year period for the acquiring of title by adverse possession and has held that both require seven years. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001); Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984). Unlike adverse possession, however, prescriptive use need not be exclusive. Neyland v. Hunter, supra. 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. Manitowoc Remfg., Inc. v. Vocque, supra; Johnson v. Jones, supra; Fields v. Ginger, supra. Permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Manitowoc Remfg., Inc. v. Vocque, supra; Fields v. Ginger, 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. Massey v. Price, 252 Ark. 617, 480 S.W.2d 337 (1972). Accord Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). When one has sufficient information to lead him to a fact, he is put upon inquiry and shall be deemed cognizant of that fact. Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).

In Fields v. Ginger, supra, we noted that the supreme court has long recognized a variation in the general rule of law spoken of in Manitowoc Remanufacturing, Inc. v.Vocque, supra. Quoting Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954), we stated that previous decisions on this issue can be reconciled:

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.

54 Ark. App. at 221, 925 S.W.2d at 797. We rejected the notion that it was necessary in all cases that persons claiming a prescriptive easement must openly communicate their intention to use the road adversely before permissive use can ripen into an adverse right, and recognized that the length of time and the circumstances under which the roadway was opened and used are sufficient to establish an adverse claim when those circumstances indicate that the true owner knew or should have known that the road was being used adversely. Citing White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992), we held that the use may ripen into an easement by prescription even if the initial usage began permissively, if it is shown that the usage continued openly for the statutory period after the landowner knew that it was being used adversely, or under such circumstances that it would be presumed that the landowner knew it was adverse to his own interest.

The determination of whether the use of a roadway is adverse or permissive is a question of fact. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968); Fields v. Ginger, supra; Wallner v. Johnson, supra. A chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearlyerroneous. Kelley v. Westover, 56 Ark. App. 56, 938 S.W.2d 235 (1997). A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999). In fact, former decisions are of little value on the factual issue of whether a particular use is permissive or adverse. Williams v. Fears, 248 Ark. 486, 452 S.W.2d 642 (1970); Stone v. Halliburton, supra.

The appellants raise seven points attacking individual findings of the trial court. Many of the individual points are irrelevant to the chancellor's ultimate decision, such as point one wherein appellants state that the chancellor erred in finding that this was a boundary line dispute; regardless of this characterization, it is clear that the chancellor was deciding this case on the basis of whether appellants have a prescriptive easement over appellees' property. Point three, wherein appellants maintain that the trial court erred in finding that appellees' paved driveway curved a certain direction, is also irrelevant to the outcome of this appeal insomuch as appellants concede that this was probably an inadvertent misstatement that the chancellor later corrected.

The crux of appellants' remaining arguments regarding the chancellor's findings is whether the trial court's decree is against the preponderance of the evidence. As such, these points will be discussed together. The chancellor found that appellants had not placed the Elks Lodge on notice that they were using the Elks Lodge driveway adversely to the Elks Lodge. Appellants argue that, by looking at the area behind the Engelkes' house, one using the paved drive on the appellees' property could see that use was being made of the disputedarea. However, an observer would have to know exactly where the property line was to know that appellants were using Elks Lodge property. Furthermore, if as Judy Engelke testified, she and her husband met members coming from the Elks Lodge on the blacktop portion of the drive, the Elks Lodge member might assume that it was someone leaving from the Lodge rather than one of the appellants. Appellees disputed most of the evidence that appellants claim put the appellees and the Elks Lodge on notice of their adverse use. Actions by appellants such as parking their vehicles and boats or mowing part of the area on the Elks Lodge property are insufficient, without more, to establish the hostile nature of appellants' possession. See DeMers v. Graupner, 186 Ark. 214, 53 S.W.2d 8 (1932). The only undisputed act by appellants that could be considered notice to appellees of a hostile intent on the part of appellants occurred when the Engelkes had a contractor use the Elks Lodge drive in the fall of 1999 when they remodeled their back garage. When the appellees and the Elks Lodge learned of this, they wrote the Engelkes a letter objecting to the Engelkes' use of Elks Lodge property for construction purposes and stating that access would be denied once the construction project was completed. This suit was filed in March 2000, less than five months after appellees wrote the letter.

Appellant Herbert Engelke's testimony that he did not intend to possess the property adversely to anyone and that he did not dispute the Elks Lodge's right to be concerned about his use of the Elks Lodge property raises serious questions regarding the adverse nature of the purported use of the disputed property. Deborah Allard also testified that she did not intend to take the Elks Lodge property. The recognition of one claiming by adversepossession that a true owner may have a claim to the property is admissible to show that his possession is not adverse to the true owner. Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892 (1946); Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937); Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999).

Appellants argue that this case is similar to Johnson v. Jones, supra, and therefore should be controlled by it. However, Johnson v. Jones is to be distinguished in that the Johnson appellants saw the appellees in that case using the property but did not question their use at any time. In the present case, the evidence indicates that appellees did not notice regular use and generally objected to the sporadic use they did observe.

Appellants also argue that appellees must be charged with notice of appellants' use of the driveway because they observed appellants using the driveway, mowing the surrounding area, and parking vehicles in the disputed area. The argument appears to be that, by the mere passage of time, their use became adverse to appellees and they acquired the easement. While this use of the disputed area may be hostile to appellees' ownership, the chancellor found that there was no evidence that the hostile nature of this use was communicated to appellees. Also, it is clear that a prescriptive easement cannot be acquired by the mere lapse of time. See McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). There must be some action by appellants that an adverse use and claim are being asserted. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., supra; Dillard v. Pickler, supra. Here, appellees disputed the appellants' use of the driveway, and the chancellor chose to resolve the question in appellees' favor. This was his prerogative. See Belcher v. Stone, 67 Ark.App. 256, 998 S.W.2d 759 (1999). We defer to the superior position of the chancellor to determine the credibility of witnesses and the weight to be accorded to their testimony. Dillard v. Pickler, supra.

As a related point, the appellants also attack the chancellor's finding that the Brays, the Sparks, and the Allards did not establish that they had a claim for seven years or that their use or conduct had provided notice to appellees. Appellants correctly note that, in order to establish a prescriptive easement, the possession of one's predecessor may be considered. See Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996). Appellants did not call any of their predecessors in title, relying instead on the testimony of the Engelkes to link their predecessors' use with their own in an effort to meet the statutory period. Deborah Allard testified that the disputed driveway was not used very much, maybe once a month. Paul Allard testified that he used the purported easement some twenty-five to thirty times during his two years of ownership. Stephen Sparks testified that he made extensive use of the easement during certain times of the year. James Bray testified that he used the area to store his Sea-Doo jet skis and to deliver firewood. He also used the area to remove his hot tub when he moved in July 2000. Based upon this testimony, the chancellor could have concluded that the use of the property by these appellants was too sporadic to meet the requirement of continuous and uninterrupted use without regard to the nature of the use made by the predecessors in title. See Craig v. O'Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). The Brays, the Sparks, and the Allards were also required to prove that their predecessors in title claimed the disputed property adversely, including notice of the adverseuse, to the Elks Lodge before they could tack the predecessors' possession onto theirs in an effort to meet the statutory period. See Mills v. Deniston, 227 Ark. 463, 299 S.W.2d 195 (1957); Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). Judy Engelke testified on cross-examination that the predecessors in title to lots 13, 14, and 15 did not use the property with intent to deprive the Elks Lodge of their property.

Based on the foregoing, we hold that the chancellor did not err in finding that appellants failed to prove their prescriptive easement claim by a preponderance of the evidence.

Appellants also contend that the trial court erred in refusing to admit certain photographs, plaintiffs' exhibits 5 and 10, during the testimony of appellant Herbert Engelke. We are unable to address this issue on the record before us. Neither exhibit 5 nor exhibit 10 is contained in the abstract or the single record, and appellants have therefore failed to meet their burden of furnishing a record sufficient to show prejudicial error. See Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994).

Affirmed.

Stroud, C.J., and Griffen, J., agree.