Lorna Cagle v. Charles Merkey and Mary Lou Merkey

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

LORNA CAGLE

APPELLANT

V.

CHARLES MERKEY and

MARY LOU MERKEY

APPELLEES

CA03-721

April 14, 2004

APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT

[E2001-104]

HON. DENNIS C. SUTTERFIELD,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Lorna Cagle appeals the circuit court's order prohibiting her from erecting or maintaining a gate across the gravel road located between the parties' properties. Finding no error, we affirm. The parties to the case own certain parcels of real property that are located north of Ozark, Arkansas, approximately ten miles north of the interstate on Highway 23. A gravel road leads west from Highway 23 and runs between the parties' property, appellant owning land to the south of the road and appellees Charles and Mary Lou Merkey owning three parcels of land on the north side of the road.1 A gate with locks, or two gates with locks, or a cable with locks had been present, almost continuously since 1985, in the same location near where the gravel road turned off Highway 23. This barrier, in whatever form, effectively blocked access to the road, except for those individuals who had keys to the lock(s).

Two orange gates were originally placed across the road in 1985 by Ralph Owens, who owned the land on both sides of the road at that time. On August 20, 1991, appellees bought the two-acre parcel closest to the highway on the north side of the road. The orange gates were removed, with one of them being used by appellees across the driveway into the lot. Owens executed easements purporting to grant "a right-of-way, for ingress and egress . . . following the south line" of the two-acre, three-acre, and four-acre parcels of land located to the north of the road. The easement for the two and three-acre parcels were executed in 1991, and the easement for the four-acre parcel in 1993. There was no mention of the width of the purported right-of-way.

On January 27, 1995, appellees purchased the adjoining, center three-acre parcel and installed a cable across the road, which was locked each night. This cable was installed with the permission of the Bank, which owned the land to the south of the road at that time. On May 2, 1997, appellees purchased the adjoining four-acre parcel on the north side of the road and located furthest west of the highway.

On July 29, 1996, appellant bought the land south of the road from the Bank. There was either a locked cable or gate across the road at that time, which had to be unlocked by the Bank's representative when appellant went to look at the property prior to her purchase. Upon purchasing the property, appellant was given a key to the lock on the cable previously agreed upon by appellees and the Bank, and installed by appellees. Appellant testified that she bought the land when the gate or cable was locked, and she assumed it could remain locked. She further testified that she would not have bought the property if she had known that she could not lock it. Subsequent to appellant's purchase, she built a home on herproperty and replaced the existing locked cable with a locked gate. Her initial reason for wanting a gate was she had things stolen while she was building her house. The parties agreed that each would have keys to the gate and that it would be locked at night and open during the day as a means of protecting their respective properties from thieves, hunters, vandals, and people just driving around on the road.

Sometime later there was a disagreement between the parties regarding locking the gate. On June 11, 2001, appellees filed a complaint in equity and request for ex-parte relief asking that the gate no longer be locked. An ex-parte order was obtained the same day, which ordered the requested relief until further order of the court. On May 7, 2002, the circuit court entered an amended temporary order requiring appellant to remove the gate until further order of the court. After the circuit court's May 2002 order ordering the temporary removal of the gate, appellant had things stolen and hunters spotlighting near her property.

A trial was held on November 21, 2002, and the circuit court entered an order on November 26, 2002, that permanently enjoined appellant from erecting or maintaining a gate across the road leading to the parties' properties. It is from that order that appellant appeals. A timely notice of appeal was filed on December 23, 2002.2

This is a one-brief appeal. Counsel for appellees filed a letter with the clerk of the court on October 29, 2003, stating that appellees were unable to bear the expense of a response, but requested that the court not interpret their inability to respond as agreement with appellant's basis for appeal.

We review equity cases de novo on the record and will not disturb the findings of the circuit judge unless clearly erroneous. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003). This has been found to specifically entail:

Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court's reviewing the entire case de novo. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.

ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677, 30 S.W.3d 725, 728-29 (2000). In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Owners Assoc. of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). It is the duty of the appellate court to reverse if its own review of the record is in marked disagreement with the circuit court's findings. Id.

Appellant argues that the easements that were purportedly granted by Owens are insufficient in their description, inasmuch as the instruments fail to adequately describe the easements to be conveyed. See Wilson v. Johnston, 66 Ark. App. 193, 990 S.W.2d 554 (1999) (holding that the description of the easement requires that a surveyor can go onto the land and locate the easement from such description); see also Doug's Electrical Serv., Inc. v. Miller, 79 Ark. App. 28, 83 S.W.3d 425 (2002). Appellant submits that the easements introduced at trial fail to give an adequate description, stating only that an easement for ingress and egress is granted "following the South line (of the two-acre, three-acre, and four-acre parcels)." No width is given, and the road is neither referenced nor mentioned. She asserts that no surveyor could locate the easement from the description given as required by Wilson v. Johnson, supra.

Our review of the record, as abstracted, does not reveal that appellant made this particular argument to the circuit judge or received any type of ruling on the matter. Throughout the transcript of the proceedings, the road is referred to as "the easement road" by various witnesses, counsel, and the circuit judge. It is the appellant's burden to obtain a ruling from the trial court and, in the absence of such a ruling, we do not reach the issue involved. Statco Wireless, LLC v. Southwestern Bell Wireless, LLC, 80 Ark. App. 284, 95 S.W.3d 13 (2003). It is well settled that this court will not consider arguments raised for the first time on appeal. Rhuland v. Fahr, __ Ark. __, __ S.W.3d __ (Mar 11, 2004).

Additionally, appellant maintains that if there is an easement along the road, such easement is subject to the restrictions mutually agreed upon by the parties' predecessors in title and their agreement that the gate should be maintained, locked at night, and open during the day. The Bank was appellant's predecessor in title, and the Bank agreed with appellees, upon their request, that a locked cable should be placed across the road. After reaching this mutual agreement, appellees installed the cable and lock. Appellant maintains that this agreement is binding. See Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). Additionally, appellees again agreed - this time with appellant - that the cable should be removed and replaced with a gate, to which each of the parties had a lock and key. Appellant argues that whatever easement may exist is subject to the parties' mutual agreement. Appellant cites to an Arkansas Supreme Court case that held that an existing easement was subject to the conditions included in the mutual agreement of the parties. See Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977) (finding the conditions to be that the gate be locked, the public be kept out, and only the rebuilt road would be used). She asserts that essentially the same agreement was reached by the parties in the instant case.

Although there is no responsive brief from the appellees, at trial they asserted that the easements were on the property to provide the parties, their families, invitees, emergency vehicles, etc., with free ingress and egress to the property. They claimed that when the verbal agreement was reached no one was living on the property, thus emergency situations were not of concern. By the time of trial the circumstances had changed, the parties were living on various parcels of the property behind the fence, and various family members of each stayed there intermittently, at least. Because individuals were living on the property and could help keep it secure from outside individuals, and because someone living on the property could be deprived of the most timely services in an emergency situation if the gate was locked, this action was filed by the appellees.

Unlike the agreement in Warren, supra, where the easement was granted conditioned on keeping the gate closed, the verbal agreement between the parties in this case was entered into without consideration, and was in essence a revocable license granted from one to another. Appellees elected to revoke that license because the terms of the verbal agreement were not being met by appellant with respect to when the gate was to be open and closed. Appellees rescinded the agreement, which was unenforceable for lack of consideration, and the circuit court determined that what remained after that revocation were the existing easements.

In the instant case, the grants of the easements were valid because they designated the right-of-way and described the lands that were made servient to the easement. See Howardv. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997). Accordingly, appellant may not erect a barrier that unreasonably interferes with the right of passage by appellees. Id; see also Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). We hold that the circuit judge's order, which permanently enjoined appellant from preventing full, open, and unfettered access of the "existing roadway easement lying south of [appellees'] subject property[,]" was not clearly erroneous.

Affirmed.

Neal and Roaf, JJ., agree.

1 It is difficult to ascertain from the record on exactly whose property the road is located. John Hunter, an official from the Bank of Mulberry (Bank), testified that, at the time appellant was looking at the parcel she subsequently purchased, the Bank owned the road and the property south of the road. Two of the three parcels located north of the roadway had already been sold to the appellees. (See infra)

2 The circuit judge stated at the end of the November 21, 2002 trial that he was taking the matter under advisement and would send out a letter advising the parties of his ruling. The November 26, 2002 order contains no specific findings of fact or rationale for the decision, and the above-referenced letter is not contained in the record. The notice of appeal designates "the trial testimony of the proceeding and evidence contained in hearing on November 21, 2002," so we have no way of knowing if such a letter exists, and if so the information it contains.