Robert & Lynn Nicholson v. Dean Wells

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA03-973

May 19, 2004

ROBERT & LYNN NICHOLSON AN APPEAL FROM BRADLEY

APPELLANTS COUNTY CIRCUIT COURT

[CV02-74-1]

V. HON. CHARLES PLUNKETT, JUDGE

DEAN WELLS AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

Appellants Robert and Lynn Nicholson appeal from an order granting summary judgment to appellee Dean Wells in a case involving obstruction of a common driveway. Appellants argue that the trial court erred when it found that appellee presented adequate evidence to prove an ownership interest in the property through adverse possession and that irreparable harm would result from appellants' placement of a fence along the property line. We affirm.

Appellants and appellee are adjoining landowners of residential property. For over fifty years, there has been a common driveway between the two houses that provides access to each landowner's carport. During the summer of 2002, appellants began constructing a fence down the middle of the back portion of the common driveway. Appellee objected to the construction of the fence and filed a complaint in Bradley County Circuit Court to enjoin appellants from building the fence.

On August 13, 2002, a preliminary injunction was issued to halt construction of the fence. On February 25, 2003, appellee filed a motion for summary judgment accompanied by four affidavits. The affidavits provided the court with details concerning the formation of the common driveway. The driveway was formed in 1952 to provide access to the carports of two adjoining landowners. The original landowners shared the cost to construct the driveway, and there was continued use of the structure for at least fifty years. Appellants filed a brief in response to appellee's motion, which prompted appellee to file an additional brief. Subsequently, appellants filed another response brief. From the summary judgment record consisting of four briefs and four affidavits1, the trial court entered summary judgment in favor of appellee.

The law is well settled that summary judgment is to be granted by a trial court when it is clear that there are no genuine issues of material facts, and the party is entitled to summary judgment as a matter of law. Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999). The appellate court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Id. The appellate court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Ultracuts Ltd. v. Wal-Mart, 343 Ark. 224, 33 S.W.3d 128 (2000).

This court reviews equity matters, including injunctions, de novo. United Food and Commercial Workers Int'l v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003). The trial judge makes the decision to grant or deny the injunction, and we will not reverse the chancery judge's ruling unless there has been an abuse of discretion. Id. When considering an order to grant or deny an injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether or not there was an abuse of discretion. Id. The sole question is whether the trial court departed from the rules and principles of equity in making the order, and not whether the appellate court would have made the order. Id.

Appellants argue that appellee was not entitled to the relief sought as a matter of law because appellee failed to present adequate evidence to prove an ownership interest acquired through adverse possession. The courts have distinguished cases involving common driveways from cases that involve public prescriptive easements. The law regarding common driveways allows for continued use of the driveway to constitute adverse use. "The continued use of a passageway without objection and over a long period of years can establish adverse use so as to ripen into title by limitation." Armstrong v. McCrary, 249 Ark. 816, 821, 462 S.W.2d 445, 448 (1971). This holding comports with the great weight of authority on a passageway lying along the boundary between two lots under separate ownership. Id.

In the case at bar, appellee produced undisputed affidavits that dated the driveway back to 1952. The affidavits also provided information as to the formation of the driveway. The common driveway was purchased and built by two adjoining landowners for the purpose of providing access to the carports of the adjoining landowners. There has been continued and shared use of the driveway by previous landowners. Appellants do not contend that there was a material question of fact left unanswered by the evidence, but that the trial court incorrectly applied the law to the facts. We find that the court correctly applied Arkansas law to the facts of this case, and appellee put forth sufficient evidence to prove adverse use of the driveway.

Appellants' second point on appeal is that appellee failed to prove irreparable harm, therefore summary judgment was not an appropriate remedy. An injunction is appropriate when the injury is a recurring one and the damages are substantial. United Food and Commercial Workers Int'l Union v. Wal-Mart, Inc., supra. In order to establish grounds for a permanent injunction the movant must show that it is threatened with irreparable harm. Id. Irreparable harm is the touchstone of injunctive relief. Id. Harm is considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Id.

The trial court explicitly stated in the preliminary injunction order that it found that irreparable harm would result to the appellee if the actions of the appellants were not stopped. Appellee demonstrated irreparable harm by showing that she would be practically denied access to her carport if appellants erected the fence. When Armstrong v. McCrary, supra, is applied to the facts of this case, it is evident that there is sufficient evidence to show irreparable harm. The damage to appellee is peculiar in nature and money cannot reasonably atone for it. Little Red River Levee Dist. No. 2 v. Thomas, 154 Ark. 328, 242 S.W. 552 (1922). Appellee proved irreparable harm. Thus, the trial court's decision to grant a permanent injunction on summary judgment was not an abuse of discretion.

Affirmed.

Hart and Gladwin, JJ., agree.

1 Although appellants' abstract includes a transcribed discussion between the parties and a trial judge, the discussion was not part of the summary-judgment record. There is no evidence that the trial judge who granted summary judgment was aware of the discussion.