Weyerhaeuser, Inc. v. William Doyle McCarley, Joan McCarley, Glennis D. Roberts et al.

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ca03-834

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-834

FEBRUARY 18, 2004

WEYERHAEUSER, INC. AN APPEAL FROM THE POLK

APPELLANT COUNTY CIRCUIT COURT

v. [CV-00-379]

WILLIAM DOYLE MCCARLEY, HONORABLE GAYLE K. FORD,

JOAN MCCARLEY, JUDGE

GLENNIS D. ROBERTS, ET AL.

APPELLEES AFFIRMED

Olly Neal, Judge

This case involves two roads that traverse appellant Weyerhaeuser's property. The Polk County Circuit Court found that the appellees had acquired a prescriptive easement in the road known as the South Road. The Polk County Circuit Court also found that the appellees had not acquired a prescriptive easement in the road known as the North Road. On direct appeal, appellant/cross-appellee asserts that the trial court erred in finding that the appellees/cross-appellants had acquired a prescriptive easement in the South Road. On cross-appeal, appellees/cross-appellants assert that the trial court erred when it found that they had not acquired a prescriptive easement in the North Road.

The appellees are the descendants of the Baker and the McCarley families. Appellees own five tracts of land that will be referred to as tracts 1, 2, 3, 4, and 5. Tract 1 is located in Polk County. Tracts 2, 3, 4, and 5, are located in Howard County. Appellant owns land in Polk and Howard County. Appellant's land encircles all five tracts of appellees' land with the exception of the eastern portions of tracts 4 and 5 that are owned by the United States and an area north of tract 5 that is owned by a party not involved in this suit.

The South Road, also known as the McCarley Road, was in existence prior to appellant acquiring the property. The South Road is located south of tracts 2 and 3, and extends from Polk County Road 251 into Howard County. The South Road is used to access tracts 2, 3, and 4.

The North Road was constructed by appellant. The North Road is situated north and west of tract 5. It extends from Polk County Road 252 to tract 5.

In August/September 2000, in an effort to prevent dumping and wild fires, appellant installed gates across the North and South Roads. Appellees filed suit protesting the installation of the gates. Following a December 4, 2002 hearing, the parties now bring this appeal.

Standard of Review

This court reviews chancery matters de novo on the record but will not reverse a finding of the lower court unless it is clearly erroneous. See Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assoc., 346 Ark. 354, 57 S.W.3d 187 (2001). 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. Id. It is this court's duty to reverse if its own review of the record is in marked disagreement with the lower court's findings. See id.

Direct Appeal

On direct appeal, appellant asserts that the trial court erred when it found that appellees had acquired a prescriptive easement in the South Road. Appellant asserts that any easement acquired by appellees was abandoned.

A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assoc., supra. Such an easement may be acquired, notwithstanding the erection of a gate across the roadway, as long as the gate was not constructed to exclude the public. Johnston v.Verboon, 269 Ark. 126, 598 S.W.2d 752 (1980). Even after a prescriptive easement has been acquired by the public, however, it may be abandoned by nonuse. Id. Such abandonment allows the owner to re-enter and prevent the public from re-establishing its prescriptive right to the use of the roadway. Id. A prescriptive easement may be abandoned by more than seven years of nonuse. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assoc., supra.

During the December 4 hearing, Darlene Roberts testified that she lives in Polk County and owns tract 3. She acquired the tract when her family divided their land in 1984. She described the tract as 160 acres that had been in the Baker family "since the turn of the century." Ms. Roberts said that the South Road extends to the old McCarley property that her grandfather sold to the United States in 1965. She stated that she was born in 1944 and that as a child she would use the South Road in order to visit her grandfather. She said that she continues to use the South Road to access Gillham Lake.

Doyle McCarley testified that he owns tracts 1 and 2. He stated that although he was born on the McCarley place, he has lived in Albuquerque, New Mexico since 1950 or1951. Mr. McCarley said that he returns to the area twice a year. He maintained that the South Road had been in existence all his life. He said that the existing path of the South Road was followed when appellant re-graded the South Road. He also said that his family used to maintain the South Road.

T.N. McCarley, age 91, testified that he has lived in the area all his life. He said that he lived on the McCarley place until the 1940's. He said that in 1923, the South Road was an old road. Mr. McCarley said that he had not used the South Road in the last four or five years. However, he later said that he drove down the South Road every year until the gate was installed.

Dale Blair said that he had lived in the community for about forty years. He said that he has used the South Road several times. He said that he often saw people using the South Road to hunt, fish, and sightsee.

Robert Evans testified that he has lived in the area most of his life and that he was familiar with the roads. He said that until 1997 or1998, he had a cattle lease with appellant. During that time he would travel the roads every day. He also said that he would travel the South Road to Possum Creek and would often see others at the creek. He later said that he would only occasionally see others using the South Road.

Bobby Evans said that in the past few years he has used the South Road two to three times a week to pick berries, fish, and take pictures.

Roger Harper testified that he had worked as a forester for appellant since 1980. His work encompassed the areas involved in dispute. He said that in previous years the South and North Roads were open to the public. Mr. Harper was aware that the public used the roads for hunting, fishing, and camping. He said that the gates were put up to stop the public from dumping and causing wild fires. Mr. Harper stated that the owners of private property behind the gates were either given their own key to the gates or allowed to put their own locks on the gates.

The evidence establishes that the South Road was in existence before the Baker and McCarley families acquired their land. Tracts 1, 2, and 3 have been continuously owned by the Baker and McCarley families. During their ownership, the Baker and McCarley families have used the South Road to gain access to their property. Continued use of the South Road was further evidenced by testimony that people continue to use the South Road in order to partake in recreational activities. Furthermore, we do not have more than seven years of nonuse. The gate along the South Road was not installed until the summer of 2000. Appellant is premature in its assertion of abandonment. Because appellant fails to establish that the South Road has been unused for a period of seven years, we hold that the appellees have not abandoned their prescriptive easement in the South Road.

Cross-Appeal

On cross-appeal, appellees/cross-appellants argue that the trial court erred when it found they had not acquired a prescriptive easement in the North Road. 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. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). 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. Id. The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a trial court's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Smith v. Loyd, 68 Ark. App. 127, 5 S.W.3d 74 (1999).

Darlene Roberts testified that the North Road was in existence in 1984. She said that the public often travels the North Road.

Georgia Briggs testified that she has lived in Oregon since 1945. She said that in 1998, she, along with her brother and sister, inherited tract 5. Ms. Briggs said that she uses the North Road to reach tract 5. However, she admitted that when she was a child the North Road did not exist.

Glenda Jones, Ms. Briggs's sister, said that when she was a child her family would often return to the area for visits. She said that during those visits the family did not use the North Road. Ms. Jones maintained that it was obvious that the North Road was used quite frequently. She said that while inspecting tract 5 she had observed a car driving by on the North Road.

T. N. McCarley acknowledged that appellant had constructed the North Road. He said that he had used the North Road on three occasions to access Possum Creek. He also said that he had seen others using the North Road.

Don Richards, age fifty-five, testified that he lives on the North Road. He said he has lived there for the past thirty years. He explained that the gate is 120 to 150 yards from his home. Mr. Richards said that people must pass his home in order to access the gate. He said that although appellant had constructed the North Road, the north fork of the road was in existence prior to the construction of the North Road. Mr. Richard also said that he was the president of the Triple R Hunting Club, which has a hunting lease from appellant. He explained that members of the hunting club have a key to the gate along the North Road.

Roger Harper testified that the North Road was constructed by appellant. He said that the north fork is the old road used before appellant constructed the North Road. Based on the testimony, it is clear that appellees'/cross-appellants' use of the North Road was permissive. The record is void of any evidence tending to establishing that appellant was put on notice that appellees/cross-appellants were asserting an interest in the North Road that was adverse to appellant's interest. Absent evidence of adverse use, we must affirm the trial court's finding that appellees/cross-appellants failed to establish the acquisition of a prescriptive easement in the North Road.

Affirmed.

Robbins and Griffen, JJ., agree.