First Baptist Church of Rose Bud, Arkansas et al. v. Town of Rose Bud, Arkansas

ca03-629

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA03-629

February 18, 2004

FIRST BAPTIST CHURCH OF AN APPEAL FROM WHITE COUNTY

ROSE BUD, ARKANSAS, et al. CIRCUIT COURT

APPELLANTS [CIV 02-303]

v.

HONORABLE WILLIAM MILLS

TOWN OF ROSE BUD, ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED

Karen R. Baker, Judge

James Bradley, Don Martin, Kenneth Schnider, Jack Majors, and John Mainer, trustees of the First Baptist Church of Rose Bud, Arkansas (Church), have appealed from an order of the White County Circuit Court finding that the Town of Rose Bud (Rose Bud) has a prescriptive easement over the Church's property in trust for the public. In its first point on appeal, the Church argues that Rose Bud failed to prove that it had established an easement by prescription over the road. In its second point, the Church argues that, if Rose Bud acquired a prescriptive easement over its property, it is entitled to damages for inverse condemnation. We affirm the trial court's decision.

Factual and Procedural History

On May 31, 2002, Rose Bud filed a complaint for confirmation of a public prescriptive easement across the Church's property along a roadway entitled "Church Avenue." In its answer, the Church stated that any use of the roadway had been with its permission. Trial was set for January 27, 2003. That morning, immediately before trial, the Church filed a counterclaim seeking damages for inverse condemnation. Rose Bud moved to strike the counterclaim as untimely filed, and the Church responded that the counterclaim could be tried later. The trial court stated that, if there was a prescriptive easement, there was no taking and, therefore, no damages.

Before testimony was taken, Rose Bud argued that the Church had previously obtained a quiet title decree that stated that, on the west side, its property was subject to a forty-foot easement along Church Avenue. Rose Bud introduced, with no objection from the Church, the quiet title decree entered on November 15, 1993, by the White County Chancery Court. The style of that case was Rose Bud Baptist Church v. Benton Biles, Mary Biles, Elizabeth Biles, W.B. Cockrell, and Lucinda Cockrell, all deceased, and the Heirs at Law, No. E-92-799. In that decree, the chancery court quieted title to the Church, subject to the easement for which it gave a legal description. The easement described in that decree is the same easement that is the subject of this action.

Both sides presented testimony about the nature and extent of the roadway's use for many years. The trial court entered a decree finding that the roadway has been used by the public for over sixty years. Noting that Rose Bud was formally incorporated in 1969, the trial court found that, at least seven years before this suit was filed, Rose Bud paved this road, which was a substantial act of ownership, and that two or three later repairs had been performed. The court found that those acts were sufficient to create a prescriptive easement for the public's use. Additionally, the trial court found that the earlier quiet title decree was res judicata as to this issue, stating:

The Rosebud Baptist Church and the First Baptist Church of Rosebud, Arkansas, are one in the same. The description in the decree excepted among other things a 40-foot right-of-way easement along the west side of the church for Church Avenue. The description of the easement is set out in particular in the decree. The Decree is res judicata as to our current issue.

Finding that Rose Bud has an easement over this road in trust for the public, the trial court enjoined the church from preventing its use and maintenance.

The Church moved for a new trial or, in the alternative, to modify the decree, arguing that its counterclaim had not been addressed. In response, Rose Bud pointed out that the counterclaim was filed immediately before the trial was to start and argued that, although the court had taken the counterclaim under advisement, the Church had failed to call witnesses or to present evidence in support of it. The trial court denied the motion for new trial and entered an amended decree, which stated: "There was no `taking' by the town of Rose Bud. There was a prescriptive easement, not a condemnation, constructive or intentional.... The First Baptist Church of Rose Bud is not entitled to compensation from the town of Rose Bud, Arkansas."

Standard of Review

We review equity cases de novo on the record but will not reverse a finding by the trial court unless it is clearly erroneous. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001).

Arguments

The Church argues that Rose Bud did not establish a prescriptive easement and, if it did, the Church is entitled to damages for inverse condemnation. However, the Church does not assert error in the trial court's finding that the earlier quiet title decree is res judicata. Although we agree that the Church is bound by the earlier finding of a prescriptive easement across its property, we do so for a different reason. The trial court's decision may be affirmed if it is correct for any reason. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003).

In our view, the Church is judicially estopped from arguing that its property is not subject to this prescriptive easement. In the earlier quiet title action, the Church clearly took the position that this easement existed, and the chancery court agreed. A prima facie case of judicial estoppel includes four elements: (1) a party must assume a position clearly inconsistent with a position taken in an earlier case, or with a position taken in the same case; (2) a party must assume the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage; (3) a party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; (4) the integrity of the judicial process of at least one court must be impaired or injured by the inconsistent positions taken. Dupwe v. Wallace, ___ Ark. ___, ___S.W.3d ___ (Jan. 8, 2004). Therefore, we believe that all of the elements of judicial estoppel are met here and that the prior decree's finding that there is an easement across the Church's property is conclusive as to the Church. The earlier decree, however, did not name the owner of the easement; therefore, that issue remained to be determined in this action.

The Prescriptive Easement

The next question is whether Rose Bud proved that the public owns the easement. The Church argues that Rose Bud failed to establish continuous adverse use for a period of seven years and points to the city council's action on November 15, 1994, when it disclaimed any interest in the road. It asserts that it was given no notice of the April 18, 1995, city council's action rescinding its earlier relinquishment of a claim to the road. The Church also argues that, because there was no evidence of use of the road by public vehicles (mail trucks, school buses, emergency vehicles, etc.), as a matter of law, there was no public prescriptive easement. The cases cited by the Church do not, however, hold that only public vehicles can establish a public prescriptive easement. Indeed, there is no doubt that, under Arkansas law, the use of a road by private citizens - members of the general public - can establish a public prescriptive easement. See Carson v. County of Drew, ___ Ark. ___, ___ S.W.3d ___ (November 6, 2003); Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., supra. Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981).

The person who asserts an easement has the burden of proving its existence. Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997). Although Arkansas does not have a statute setting forth the length of time for the ripening of a prescriptive easement, for many years the appellate courts have 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; both require seven years. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). That statutory period for adverse possession is set forth in Ark. Code Ann. § 18-61-101 (1987). Carson v. County of Drew, supra. Unlike adverse possession, however, prescriptive use need not be exclusive. Johnson v. Jones, supra.

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 the statutory period. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). 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. Id. Permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Id. 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. 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. Johnson v. Jones, supra.

The Church argues that it never received notice that the public's use of this road over decades was adverse. In Johnson v. Jones, 64 Ark. App. at 25-26, 977 S.W.2d at 905-06, we addressed this question in a similar situation:

In Fields v. Ginger, [54 Ark. App. 216, 925 S.W.2d 794 (1996)], 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. 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 the road was being used adversely, or under such circumstances that it would be presumed that the landowner knew the use of the road was adverse to his own interest.

As we stated in Zunamon v. Jones, supra, the long length of time that the road was used by many people is, in itself, pertinent evidence of adverse use. Accord Carson v. County of Drew, supra; City of Dumas v. Edington, 201 Ark. 1021, 147 S.W.2d 997 (1941). The determination of whether the use of a roadway is adverse or permissive is a question of fact, and former decisions are of little value on the factual issue of whether a particular use is permissive or adverse. Johnson v. Jones, supra. We will not reverse a trial court's finding with respect to the existence of a prescriptive easement unless it is clearly erroneous. Id.

The trial court's finding of adverse use by the public is not clearly erroneous. In fact, the evidence clearly shows that the public acquired a prescriptive easement over the Church's property long before the city council voted in November 1994 to disavow a claim to the roadway. The cases discussed above show that an express claim of right to use the road by the public was not necessary - such a claim will be inferred from the nature of the use and the situation of the parties. There can be no doubt that Church Avenue has been a discernable road in use by the public for over sixty years. The maps, going back to at least 1963, introduced by Rose Bud clearly show Church Avenue as an existing street. Milton May, who grew up in RoseBud and lived near the Church, testified about the public's use of the road in 1937 or 1938. Jack Majors, one of the Church's trustees, testified that, until 1994, when the Church purchased the property to the west, he was not aware of any claim by the Church to the exclusive use of the road, which he admitted appears to be a city street. Additionally, the survey obtained by the Church in 1991 showed the easement as described in the quiet title decree. The surveyor, Alan Quattlebaum, testified that he believed that the road was a public street. Additionally, there was undisputed testimony that Rose Bud had maintained the road for years. Jim Burkett, its former mayor, stated that Rose Bud had rechipped and resealed it in 1994. Nick Stark, who was on the city council in 1969, said that, before Rose Bud was incorporated in 1969, Church Avenue was in existence and was graded by White County. He said that, when Rose Bud was incorporated, it took over the street's maintenance. He testified that, in 1969, the city council considered Church Avenue to be a city street and had placed asphalt on it. In Thompson v. Morris, 218 Ark. 542, 545, 237 S.W.2d 473, 475 (1951), the supreme court stated that, "when the public authorities assert their dominion by working the thoroughfare the public user is under a claim of right." In light of this evidence, the trial court's finding that the public has a prescriptive easement across the Church's property is not clearly erroneous.

The Church further argues that its closing of the road for several days at a time during the Church's construction projects was sufficient to interrupt the public's continuous adverse use. The evidence, however, demonstrates otherwise. The closings were of very short duration and were not sufficient to seriously interrupt the public's use of the road. This also was a question of fact for the trial court, and we cannot say that its decision is clearly erroneous in that regard.

Additionally, we find no significance in the fact that, in November 1994, the Church's representatives asked the city council to give up any claim to Church Avenue. There is no evidence that, after the city council voted to do so, Rose Bud legally abandoned the public's easement. Neither does appellant's present legal argument, that the city council had the authority to abandon the public's easement. There is also no dispute that a written abandonment was not filed or that an ordinance to that effect was never enacted. Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen, supra. However, there was no evidence to indicate that the public ever ceased using the road; thus, we conclude that the Church failed to prove that an abandonment by nonuse occurred.

Inverse Condemnation

In its second point, the Church argues that, if Rose Bud did acquire a prescriptive easement, it is entitled to damages for inverse condemnation as a matter of law and requests that this case be remanded for a jury trial on that issue. Article 2, section 22 of the Arkansas Constitution recognizes that the right of property is before and higher than any constitutional sanction and that private property shall not be appropriated or damaged for public use without just compensation therefor. National By-Prods., Inc. v. City of Little Rock, 323 Ark. 619, 916 S.W.2d 745 (1996). However, despite the value placed on the ownership of property, the government and certain utilities are permitted, under the power of eminent domain, to take private property for a public use without the owner's consent, conditioned on the payment of just compensation. 26 Am. Jur. 2d Eminent Domain § 2 (2d ed. 1996). To exercise the power of eminent domain, a governmental entity may file a condemnation petition in court and, in that proceeding, damages for the taking are assessed. However, if a governmental entity takes an owner's land but does not file an eminent domain proceeding, the owner may initiate a suit, which is called an inverse condemnation action. See Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). Inverse condemnation is a cause of action against a governmental entity to recover the value of the property that has been taken in fact by the governmental entity although not through eminent domain procedures. National By-Prods., Inc. v. City of Little Rock, supra.

The statute upon which the Church bases its inverse condemnation claim is Ark. Code Ann. § 18-15-410 (Repl. 2003), which provides:

(a) If a municipality shall enter upon property which it has the right to acquire by condemnation proceedings without commencing condemnation proceedings, the owner of the property shall have the right to commence condemnation proceedings against the municipality at any time before an action for the recovery of the property or compensation therefor would be barred by the statute of limitations.

(b) The measure of recovery in the action shall be the fair market value of the property at the time it was entered upon by the municipality.

In the amended decree, the trial court held that the prescriptive easement did not constitute a taking. The Church argues that a municipality's taking of an easement without initiating eminent domain proceedings constitutes a "taking," giving the landowner the right to initiate an inverse condemnation suit. We agree; however, by the terms of subsection (a) of this statute, the landowner cannot bring such a claim if the seven-year statute of limitations has run. In our view, the public's use of the road over several decades without objection by the Church demonstrates that the statute of limitations ran long before this inverse condemnation claim was filed. See Missouri & N.A.R. Co. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921).

Even if that were not so, the most recent date that the Church could argue that it lacked notice of Rose Bud's claim to the easement was immediately before the city council voted, on April 18, 1995, to rescind its November 15, 1994, vote to relinquish the public's claim to an easement. The Church filed its inverse condemnation counterclaim on January 27, 2003, which was well over seven years after the city council's action rescinding its earlier vote. The Church's claim, therefore, was time-barred.

Affirmed.

Robbins and Roaf, JJ., agree.