Clynell Cummins et al. v. William Louis Berry et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

CLYNELL CUMMINS, et al.,

APPELLANTS

V.

WILLIAM LOUIS BERRY, BRUCE ELLIS BERRY, AND ARKANSAS DEPARTMENT OF PARKS AND TOURISM,

APPELLEES

CA02-676

MAY 14, 2003

APPEAL FROM THE YELL COUNTY CIRCUIT COURT,

NO. E99-206,

HON. VAN TAYLOR, JUDGE

AFFIRMED

This case, involving the construction and interpretation of a reservation in a deed, was decided on summary judgment. We affirm.

The facts are undisputed. In July 1933, Susan Moore and her husband, L.C. Moore, conveyed by quitclaim deed certain property containing approximately 4.4 acres near Mt. Nebo in Yell County to the State Park Commission of Arkansas (State). The deed contained the following reservation: "Reserving to us and our heirs forever the right to erect and maintain a suitable cottage or residence on said lands forever, site to be hereafter selected by us." Susan Moore died intestate in January 1954, L.C. Moore having predeceased her. Appellants are the heirs at law of Susan Moore.

Rex Friedman, chief planner for Arkansas State Parks and former property manager for the State, testified by deposition that, in 1977, the State learned that Yell County had sold

the property in 1973 for unpaid 1933 taxes. Friedman testified that his records did not show that the department received notice from Yell County that the property would be sold for unpaid taxes. Appellees William Berry and Bruce Berry acquired the property for payment of the $5.76 in delinquent taxes at a county tax sale in 1973. Friedman also testified that, after a period of negotiations, appellees acquired 2.2 acres of the property from the State by special warranty deed in 1986 in exchange for their deed to the other 2.2 acres. This was to settle all claims from appellees' interest in the property. William Berry testified by affidavit that appellees located a buyer for the property but were unable to sell because of the reservation in the 1933 deed.

Appellees filed suit seeking to quiet title in the 2.2 acres they owned, alleging that the reservation contained in the 1933 deed created a cloud on their title. The complaint alleged that the reservation (1) was an unreasonable restraint on alienation; (2) violated the rule against perpetuities contained in Ark. Const. art. 2, § 19; (3) was void for vagueness because the deed did not describe the location of the cottage or residence; and (4) constituted an easement in gross that terminated upon the death of Susan Moore in 1954. Appellants answered, denying the invalidity of the 1933 reservation. The State was allowed to intervene. The State's complaint adopted the allegations contained in appellees' complaint and sought to quiet title to the 2.2 acres the State received in the 1986 exchange. Appellants adopted their answer to appellees' complaint as their answer to the complaint in intervention.

The Berrys and the State both filed motions for summary judgment, asserting that the reservation in the 1933 deed was void as a matter of law for the reasons stated in thecomplaints. Appellants responded to the motions for summary judgment by asserting that both the tax deed and special warranty deed were invalid. Appellants also filed a motion for summary judgment attacking the validity of the sale but did not include such a claim in their pleadings.

The trial court granted appellees and the State summary judgment, finding that there were no disputed issues of material fact. The trial court found that the reservation (1) violated the rule against perpetuities; (2) was an easement in gross and ended upon the death of Susan Moore in 1954; (3) was an unreasonable restraint on alienation; and (4) was void for vagueness. The trial court also found that appellants lacked standing to attack the validity of the tax deed and, as an alternate finding, that the statute of limitations to attack the tax conveyance had expired. The trial court then quieted title in appellees and the State to their respective tracts. This appeal followed.

In summary-judgment cases, this court need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. On a summary-judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proofand demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).

When the court is called upon to construe a deed, we will examine it from its four corners for the purpose of ascertaining the parties' intent from the language employed and will not resort to rules of construction when the deed is clear and contains no ambiguities. See Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974); Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998). A reservation will be given effect according to the plain meaning and intent of the language used and cannot be extended beyond its terms. Cottrell v. Beard, 69 Ark. App. 87, 9 S.W.3d 568 (2000).

Appellants raise seven points on appeal: (1) that the trial court erred in finding that the reservation violated the rule against perpetuities; (2) that the trial court erred in finding that the reservation was an easement in gross; (3) that the trial court erred in finding that the reservation was an unreasonable restraint on alienation; (4) that the trial court erred in finding that the reservation was void for vagueness; (5) that the trial court erred in finding that appellants lacked standing to contest the tax sale and tax deed; (6) that the trial court erred in not finding that the tax deed was void; (7) that the trial court erred in not granting appellants' motion for summary judgment against the State and holding the special warranty deed to appellees was void. A decision by this court to affirm on any one of these pointsresults in an affirmance of the case. Consequently, we choose to discuss only the second point where appellants argue that the trial court erred in finding that the reservation was an easement in gross rather than an easement appurtenant.

The trial court found, without explanation, that the reservation constituted an easement in gross that terminated upon the death of Susan Moore. An appurtenant easement runs with the land and serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). An easement in gross, however, is personal to the parties; it does not have a dominant tenement because it benefits a person or an entity, and not the land. Id.; Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987). An easement in gross terminates upon the death of the holder of the easement. Rose Lawn Cemetery Ass'n, Inc. v. Scott, 229 Ark. 639, 317 S.W.2d 265 (1958).

The distinction between appurtenant easements and easements in gross has been a source of much litigation and normally depends upon the unique facts of each individual case. See Winningham v. Harris, supra. In this case, we need not answer the question of what type of easement this was because we find that the trial court reached the correct result by quieting title in appellees and the State. Accepting as true appellants' contention that this was an easement appurtenant, we hold that the record also supports a finding that an abandonment occurred in the present case because the grantor failed to locate the easement between the time of the conveyance in 1933 and her death some twenty years later. Her heirs also have failed to exercise any use of the reserved easement until this lawsuit was filedmore than forty-five years after the grantor's death. See Bank of Fayetteville v. Matilda's, Inc., 304 Ark. 518, 803 S.W.2d 549 (1991). Thus, we find that the trial court's decision is not clearly erroneous or clearly against the preponderance of the evidence. As stated above, since our affirmance on this point is sufficient to affirm the trial court's decision to quiet title to the property in appellees and the State, we do not consider appellants' remaining points.

Affirmed.

Hart, J., agrees.

Crabtree, J., concurs.