James Keck v. City of Bonanza, Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA02-843

September 17, 2003

JAMES KECK AN APPEAL FROM THE SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[E-01-78-G]

v.

HONORABLE JIM SPEARS, JUDGE

CITY OF BONANZA, ARKANSAS

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant, James Keck, appeals from the order of the Sebastian County Circuit Court that found that an easement granted to Keck's predecessor in title was a conditional easement and that because the condition for the easement was not satisfied, the easement was abandoned. On appeal, Keck argues that the trial court erred when it found that the easement "was terminated because the easement was conditioned on the development of certain property and the abandonment of the development terminated the roadway easement." We disagree and affirm.

In 1990, W.L. Swink was the owner of 8.15 acres (the property) of land located in the City of Bonanza, Arkansas (the city). The property was bordered on the north by five acres of land owned by the city and on the west by the Arkansas/Oklahoma state line. Mr. Swink's only means of ingress and egress was across the city's five acres, so he and his son, Billy Swink, asked the city for an easement. The city orally granted the Swinks a 50-foot wide easement across the five acres. The conditions of the grant are currently in dispute. Following the grant of the easement, the Swinks constructed a 50-foot wide roadway across the city's five acres. In 1996, W.L. Swink sold the property to Mr. Keck. Thereafter, Mr. Keck used the property for storage. He also continued to use the easement for ingress and egress.

On February 28, 2001, the city initiated a quiet title action against Burlington Northern Railroad Corporation (Burlington) and Mr. Keck, seeking to quiet title to the five acres. Mr. Keck counterclaimed, asserting that he was entitled to an easement across the five acres. Following a January 22, 2002 hearing, the court quieted title to five acres in the city. Burlington and Mr. Keck do not appeal the court's finding.

Following the resolution of the quiet title action, the court heard testimony pertaining to Mr. Keck's counterclaim. At the hearing, Katherine Peerson testified that she is the city's recorder/treasurer. She said that she no longer had the city's 1990 records. However, she did recall that in 1990, the Swinks wanted to develop the property and that the Swinks asked the city for an easement so they could reach the property. Mrs. Peerson testified that the city granted the Swinks an easement contingent upon the Swinks complying with Ordinance 89-2.1 Mrs. Peerson further testified, "The conditions for this development was for city growth. I imagine that's the only reason we would allow him to have that. To our knowledge, it's not been developed." Mrs. Peerson also stated that the Swinks never indicated that they had complied with Ordinance 89-2 nor had they formally dedicated the easement to the city. She maintained that because the property was never developed, the city did not recognize the easement.

John Peerson, the city's mayor, also testified. Mr. Peerson stated that he had held his position since 1986. He recalled that in 1990, the Swinks asked the city for an easement so the Swinks could develop their property. Mr. Peerson stated, "We haven't stopped the easement to that property, but we're-- we don't want to give off our five acres, you know, for an undeveloped, I mean, the whole purpose was development. If it's not going to be developed we're not going to give it." He further stated that the Swinks were to build a road to "spec" and once the road was built to "spec" the city would provide all further road maintenance. Mr. Peerson maintained that the grant of the easement was conditioned upon the Swinks developing the property; however, he later admitted that he did not have a writing that set forth the conditions for the grant of the easement. Mr. Peerson explained that Ordinance 89-2 pertains to obligations imposed on a developer who wants to build a road and later dedicate the road to the city. He stated that "[i]f we were going to give a right-of-way to that property for some other purpose because they had to have it, we would give a 15-foot easement." Mr. Peerson testified that the Swinks did not build the road to "spec" and that the property was not developed.

Billy Swink described the property as landlocked. He said that in 1990, he asked the city to grant his father an easement. He said that the city granted an oral easement across the city's five acres. Mr. Swink recalled that the city imposed the following conditions that: (1) he bear the expense of constructing the easement; (2) he have the land surveyed; (3) he have a legal description; (4) the easement be built according to the city's specifications for city streets. He said that upon having the easement surveyed, he delivered a copy of the survey to city hall. Mr. Swink explained that the easement runs perpendicular to an existing county road. He also acknowledged that Ordinance 89-2 requires a 50-foot right-of-way. Mr. Swink testified that the city never told him the easement was not in compliance with Ordinance 89-2. He stated that he believed that when his father sold the property, the easement went with the property as a means of ingress and egress. Mr. Swink could not recall making any representations to the city about the intended use of the eight acres.

However, during cross-examination, Mr. Swink testified that he did mention to the city that his father hoped to develop the land but that this was not a condition for the grant of the easement. Mr. Swink stated:

When I approached the City I did mention that there were hopes or dreams to develop this land in back of my father's. There was mention in the meeting. To my recollection, it was not made a condition that this be developed. I believe that was a condition on giving us the easement on the property. It definitely had to be developed. It was talked and planned to be so, but I do not recall it being a definite condition. It could not have been a condition and me not recall because that was sort of partly my business back then. . . . I am sure that was probably their long range intentions, you know, to see some good use of the ground and benefit the City. But to the best of my recollection, the immediate deal was just get us access into the property. There were conditions that the property be developed. The conditions were put there, like the 50-foot wide easement for future development.

During examination by the court, Mr. Swink stated that their development plans were abandoned when they "had problems with the health department getting sewer septic tanks."

Mr. Keck testified that he owns a salvage business in Oklahoma. He said that the property is adjacent to his salvage business. Mr. Keck stated that from 1996-2000, he used the easement for ingress and egress to the property. He said that "absent the property in Oklahoma which I have an interest in I have no other access from Arkansas to the eight acres." Mr. Keck testified that he currently stores vehicles and livestock on the property. He stated that when he purchased the property he assumed there was an easement to the property. Mr. Keck admitted that he does not have any document from the city indicating that the city conveyed an easement to himself, Billy Swink, or W.L. Swink.

In a decree dated February 19, 2002, the trial court found that the city had granted an easement in 1990 to the Swinks that was conditioned upon the development of the Swinks' property. The court also found that the Swinks abandoned the development of the property, and therefore, the easement was abandoned. From that decree comes this appeal.

Appellant asserts that the trial court erred when it found that the easement granted to his predecessor in title was terminated because the easement was conditioned upon the development of the eight acres and the abandonment of the development terminated the easement. We review equity matters de novo on appeal, but we will not reverse a trial court's findings of fact unless they are clearly erroneous. See Johnson v. Ramsay, 76 Ark. App. 485, 67 S.W.3d 598 (2002). A finding is clearly erroneous when, although there is evidence to support it, we are left, upon reviewing the entire evidence, with the firm conviction that a mistake has been committed. Id.

An easement is an interest in land, and in the past, our courts have recognized the oral grant of an easement. See Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977); Johnson v. Ramsay, supra. An easement is said to be conditional where its creation is subject to a condition subsequent. 25 Am. Jur. 2d Easements & Licenses § 111 (1996). A conditional easement will terminate upon the breach or non-performance of the condition. Id.

In the case at bar, we must first decide if the grant of the easement was subject to the performance of certain conditions. Bill Swink gave inconsistent testimony about the terms surrounding the grant of the easement; whereas, the city's witnesses both asserted that the grant contained conditions. Conflicts in the evidence are for the trial court to resolve, given its superior ability to evaluate the credibility of the witnesses. Johnson v. Ramsay, supra. We cannot say that the trial court was clearly erroneous when it found that the grant of the easement was conditioned upon the development of the property. Accordingly, the easement was lost when the development of the property ceased. Therefore, upon reviewing the entire evidence, we cannot say that a mistake has occurred, and we affirm.

Affirmed.

Robbins and Griffen, JJ., agree.

1 Ordinance No. 89-2 provides in pertinent part:

Section One: That the City of Bonanza is desireous [sic] of quality growth and development of its streets and alleyways for its citizens and residents.

Section Two: That in furtherance of this interest there needs to be established minimum construction standards for new and dedicated streets which are, or may in the future, be considered as part of the City of Bonanza.

. . . .

Section Four:

(a) Every proposed street or alleyway must be plotted on a map and submitted to the City Council through the Mayor at least thirty (30) days prior to any regularly scheduled monthly meeting of the City Council. Such map shall be prepared by a competent draftsman or engineer and provide accurate land and site description of the proposed streets and alleys under proposal.

(b) Each street must be constructed so as to have a minimum of fifty (50) feet of right-of-way, incuding [sic] any necessary provision for ditches and drainage. The main paved surface of the street must be a minimum of twenty-two (22) feet in width at its narrowest measurement, being measured from each edge of the hard surface of the street to the other edge.