145 Associates, LTD. v. Theatrical Building Corporation; the Unknown Beneficiaries of the Ike Murry Trust; and the Unknown Spouse of Ike Murry, Deceased

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION I

CA02-516

February 19, 2002

145 ASSOCIATES, LTD.

APPELLANT AN APPEAL FROM PULASKI COUNTY

v. CIRCUIT COURT, [QT2000-2423]

THEATRICAL BUILDING CORP.; HONORABLE ALICE GRAY,

the Unknown Beneficiaries of the IKE CIRCUIT JUDGE

MURRY TRUST; and the Unknown

Spouse of IKE MURRY, Deceased AFFIRMED ON DIRECT APPEAL;

APPELLEE AFFIRMED ON CROSS-APPEAL

This is an appeal concerning an easement related to three tracts of commercial property in Little Rock, Arkansas, designated as Tract B5, Tract B1, and Tract A.1 A Kmart store, a shopping center strip of stores, and a large parking lot are situated on Tract A, which is the largest of the three tracts. Tract B1 lies immediately west of Tract A. It is thirty feet wide and runs along the entire length of Tract A. A dinner theater and parking lot are located on Tract B5, which lies immediately west of Tract B1. Tract B5 is adjacent to the southern half of Tract B1. At one time, A.G.C. Corporation (AGC) owned all three tracts. In March 1967, AGC conveyed to Ike Murry property referred to as Tract B5, together with an easement across Tract B1. On the same day, Murry conveyed the property to appellee Theatrical Building Corporation by quitclaim deed. On June 16, 1976, AGC made a correction deed to appellee to correct a minor discrepancy in the property description. The1967 deed and the 1976 correction deed each contain the language that is at issue in this case:

Grantor is the owner of the lands adjacent to the lands herein conveyed. Grantor covenants with the grantee that the present opening at the Southern part of the above described Tract B5 between the existing Kmart building and the other buildings in the adjacent shopping center will not be closed and no permanent structure or barrier will be erected on said existing opening. These covenants shall run with the land and be binding on the successors and assigns of Grantor.

Tract A is owned by appellant 145 Associates Limited, a real-estate investment company located in New York State. Appellant acquired the property from Louis Wiener in March 1998, and Wiener had acquired the property in December 1986 from University Investments Limited Partnership. However, the date on which AGC first conveyed this tract is not shown in the record.

Appellant2 filed suit, alleging that the language of the deed from AGC to Murry was vague and that "the easement of visibility was a cloud on its title to Tract A." Appellant sought to have the property declared free of any easements. Appellee answered, denying that appellant was entitled to any relief. Appellee also filed a counterclaim alleging that it was entitled to an easement across appellant's property either by express grant, by prescription, by implication, or by necessity.

Following a hearing, the trial court ruled that appellant did not meet its burden of proof and dismissed appellant's complaint. The trial court also found that appellee had an express easement through the opening and that, had appellee not had an express easement,it would have been entitled to a prescriptive easement across appellant's property. The trial court ruled that the easement would be from University Avenue, passing in front of the Kmart store, to the opening. The trial court found that appellee's asserted easement from Asher Avenue, across the parking lot to the opening, was not sufficiently described to establish its existence. The trial court did not rule on the remaining theories asserted in appellee's counterclaim. This appeal followed.

Appellant argues six points for reversal, which can be summarized as follows: (1) the trial court's finding that appellant had not met its burden of proof was clearly erroneous; (2) the trial court erred in finding that appellee had an express easement across appellant's property; (3) the trial court erred in finding in the alternative that appellee would have an easement by prescription; and (4) the trial court erred in excluding Darrell Peeples' testimony as a sanction for a discovery violation. Appellee cross-appeals from the denial of its request for an easement from Asher Avenue across appellant's property, contending that such denial is clearly erroneous.

This court reviews equity cases de novo but does not reverse the trial judge's findings unless they are clearly erroneous. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000). 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. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). This court will give due regard to the opportunity of the trial judge to judge the credibility of thewitnesses and the weight to be given their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

For its first point, appellant contends that the trial court's finding that appellant had not met its burden of proof was clearly erroneous. Appellant's complaint alleged that the easement contained in both the deed and correction deed to appellee was void for vagueness. However, appellant's main complaint on appeal is that the easement does not appear in its chain of title. Appellant's witness Daniel Wiener testified that AGC once owned what is now appellant's property. He testified that the deeds in appellant's chain of title did not include the easement across Tract A. However, appellant did not deraign its title back to AGC. It was appellant's burden to prove that title should be quieted in it. Stewart v. First Commercial Bank, 59 Ark. App. 47, 953 S.W.2d 592 (1997). Without appellant's having deraigned its title back to AGC, the parties' common grantor, we cannot say that the trial court's finding was clearly erroneous. Id.

Appellant also argues that Ark. Code Ann. § 18-12-103 (1987) requires that any covenant restricting the use of land be in writing and recorded in the county where the real property is located. However, the deed from AGC to Murry was recorded in accordance with the statute. We find no error on this first point.

Appellant's second point is that the trial court erred in finding that appellee had an express easement. The thrust of appellant's argument is that the words used in both the original conveyance to Murry and in the correction deed are not definite enough to create an express easement. An easement is an interest in land, and a grant of an easement must include words expressing the fact of transfer or grant. See White v. Zini, 39 Ark. App. 83,838 S.W.2d 370 (1992). Although no formal words are required, there must be some operative words expressing the fact of sale or transfer in order to convey legal title to an interest in land. See Davis v. Griffin, 298 Ark. 633, 770 S.W.2d 137 (1989). Mere words stating that the parties agree to an easement are not sufficient. White v. Zini, supra. When an interest in land is conveyed, it is absolutely necessary that somewhere in the instrument there should be words expressing that fact of a sale or transfer, i.e., words such as "grant, bargain, and sell," or words of the same purport. Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913); Johnson v. Ramsay, 76 Ark. App. 485, 67 S.W.3d 598 (2002).

In the present case, both the deed from AGC to Murry and the correction deed from AGC to appellee expressly convey Tract B5 and an easement over Tract B1. The paragraph at issue in both deeds is thus contained in documents expressing words of conveyance, and the entire document may be examined to determine whether there are sufficient words of conveyance. Griffith v. Ayer-Lord Tie Co., supra. The grant of an easement is valid when it describes the easement or right of way as such and describes the lands that are servient to the easement. Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997). Here, the deeds describe the lands burdened by the easement as "the lands adjacent to the lands herein conveyed." They also describe the location of the easement as being "between the existing Kmart building and the other buildings in the adjacent shopping center." We find that this is a sufficient description under the facts of this case because no formal words are required. See Davis v. Griffin, supra.

Appellant's third point is that the trial court erred in finding that, if there was no express easement, appellee had an easement by prescription.3 To acquire an easement by prescription, there must be a continuous use for seven years known by the owner. See LeRoy v. Sigman, 209 Ark. 469, 191 S.W.2d 461 (1945). Use is presumed to be under a claim of right where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by adverse possession. Messer v. Houston, 212 Ark. 349, 205 S.W.2d 467 (1947). Whether the use was permissive or adverse is a question of fact. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001).

Here, Ike McEntire, appellee's president, testified that he assumed that appellee had the right to use the opening between Kmart and the strip center buildings and that he directed theater patrons to do so. McEntire also testified that Murry's Theater has been in existence since 1967 with 70,000 to 80,000 patrons per year using the opening. Employees of appellee also testified that they used this opening every day. David Elrod, appellant's property manager, testified that the only other way to access the theater property would be from the alley behind Kmart. We believe that this testimony is sufficient to support the trial court's finding of an easement by prescription.

For its fourth point, appellant argues that the trial court erred in excluding, as a sanction for a discovery violation, the testimony of Darrell Peeples. In light of our decision in this case, we find it unnecessary to address this point.

On cross-appeal, appellee challenges as clearly erroneous the trial court's finding denying it an easement from Asher Avenue to the designated opening. A prescriptive easement entitles both the grantee and the grantor to a convenient, reasonable, and accessible way. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). The location of the undefined right-of-way must be reasonable to both the dominant and servient estates, considering the condition of the place, the purposes for which it was intended, and the acts of the grantee. Id. Further, the owner of the servient estate has the first right to delimit the easement. Id. We have consistently applied the law as stated in Fulcher. See Bradley v. Arkansas La. Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983); Arkansas Valley Elec. Coop. Corp. v. Brinks, 240 Ark. 381, 400 S.W.2d 278 (1966);··²3040-189²····²3040-189²·· Drainage Dist. No. 16 v. Holly, 213 Ark. 889, 214 S.W.2d 224 (1948). In the present case, the employees all testified that they drove "in front of" Kmart, without further specification. None described a specific route they may have used from Asher Avenue. This testimony is sufficiently definite to support the trial court's location of the easement in front of Kmart. However, we cannot say that, based on this same testimony, the trial court was clearly erroneous in denying the easement from Asher Avenue.

Affirmed on direct appeal; affirmed on cross-appeal.

Hart and Gladwin, JJ., agree.

1 Tract A is bounded on the north by Asher Avenue and on the east by University Avenue.

2 The complaint was originally filed with Louis Wiener as plaintiff. Appellant was substituted as plaintiff by order entered on March 15, 2001. No explanation is given as to why the suit was filed by Wiener.

3 The trial judge limited her alternative findings to an easement through the opening in the space between Kmart and the strip center. However, the trial court made a separate express finding of an easement of ingress and egress from University Avenue in front of Kmart to such opening between the store and the strip center.