Brian McCord and Debbie McCord v. Kenneth F. Ray and Linda K. Ray

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-674

March 16 , 2005

BRIAN McCORD and

DEBBIE McCORD

APPELLANTS

v.

KENNETH F. RAY and

LINDA K. RAY

APPELLEES

APPEAL FROM INDEPENDENCE COUNTY CIRCUIT COURT

[NO. CV-2003-48-4]

HONORABLE TIM WEAVER, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellants Brian and Debbie McCord appeal from the trial court's decision that appellees Linda and Kenneth Ray met their burden of proving by a preponderance of the evidence that they established a prescriptive easement across the McCords' property. The main issue is whether the Rays' use of the road located on the McCords' property was permissive or adverse under claim of right. The McCords assert two points on appeal: (1) that the trial judge was clearly erroneous in finding that the Rays met their burden of proving the necessary elements to establish a prescriptive easement and (2) that the trial court erred in ignoring the fact that Brian McCord had erected a gate where the road in question intersects his property. We affirm.

The road in question originated with Ben Petree, who previously owned the land that the Rays presently own. Ben Petree's brother, George, lived west of Double Road, and he accessed his house, which was located on Ben Petree's property, via a continuation of Double Road that ran through a fence on Ben Petree's property. In 1960, Ben Petree sold his land to the Joneses, who were Linda Ray's parents. Linda and Kenneth Ray, as tenants, moved onto 182 acres of the land in 1968when it was owned by the Joneses, and the Rays have lived there continuously. Clifford Jones died in 1963, and his heirs acquired the property. The Rays purchased the 182 acres of land in 2000 from the remaining Jones heirs.

Appellant Brian McCord acquired a house and two acres of land that adjoins the Rays' land in 1992. The continuation of Double Road, the same road that George Petree used to access his house, runs through the west side of the McCords' property, and this road is the subject of the present appeal. Kenneth Ray replaced the Petree cattle guard with a gate in the 1970s and he also replaced the original gate in 1997.

When heavy rains occur, the Rays cannot access the west side of their property the way they normally access it because the they cannot cross the creek that runs through their property. Instead, they must access their property via the continuation of Double Road through the gate that Kenneth Ray erected. Kenneth Ray testified that he used the road and gate periodically for hauling hay to a storage building on the west side of his property, for veterinarian visits for his cattle, and for cutting Christmas trees with his son. He testified that he had been continually using the road for hauling hay and cattle feed to the storage facility via the continuation of Double Road since 1965.

In 1998, Brian McCord erected a metal gate at the end of the public portion of Double Road where it intersects his property. Brian McCord testified that the gate is rarely closed and that, when it is closed, the mailman cannot deliver his mail and the public cannot get to his house. Additionally, in 1999, Brian McCord moved a camper trailer in front of Kenneth Ray's gate, obstructing passage by the Rays' son to get a large Christmas tree for Lyon College. The Rays' son moved the trailer to get the tree, but Brian McCord replaced the trailer across the gate and placed other obstructions in front of the gate in 2000. The Rays filed a lawsuit to establish a prescriptive easement, and the trial court found in their favor.

On appeal, the McCords deny that the Rays have a prescriptive right to use the road and argue that the Rays' use was merely permissive. It is undisputed that the roadway in question had been in existence for over thirty years and that Kenneth Ray and his predecessors in interest have used theroad since the 1960s. The McCords challenge the frequency of the use and argue that the use was permissive and not adverse under a claim of right.

One who asserts an easement by prescription must show by a preponderance of the evidence that his or her use has been adverse to the owner and the owner's predecessors in title under a claim of right for the statutory period. Kralicek v. Chaffey, 67 Ark. App. 273, 998 S.W.2d 765 (1999). The statutory period is seven years. Id. The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000) (citing Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998)). Permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Kralicek, supra. There is a variation in this rule, however, and if the usage of a passageway over land, whether it began as permissive or otherwise, continues for seven years after the facts and circumstances of the usage are such that the landowner would be presumed to know the usage was adverse, then the usage ripens into an absolute right. Gazaway, supra; Kralicek, supra; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). The length of time and circumstances under which the roadway was opened and used are sufficient to establish an adverse use. Gazaway, supra.

There was testimony from Kenneth Ray and his son that they use the roadway to access part of their property that they cannot access from the south during periods of heavy rains. Kenneth Ray and his family, while they were tenants of the property that they now own, used the roadway to access the old Petree house on their land in which they used to store the hay. The Rays' son had made at least two trips a year down the roadway to retrieve a Christmas tree for Lyon College since 1992. Kenneth Ray erected and maintained a gate across the roadway where the Petree cattle guard once existed, which allowed him to access the roadway from his own property and vice versa. In 1999, Brian McCord removed the gate, but Kenneth Ray put it back up again shortly thereafter.

In 1999, when the Rays' son tried to access his father's property via Kenneth Ray's gate to get a Christmas tree, he found the gate blocked by a camper trailer. The Rays' son had to move the camper trailer and various other items to obtain access to his property from the roadway. Brian McCord informed Kenneth Ray at this time that he did not want the Rays using the roadway on his property. Brian McCord testified at trial that he did not place the trailer in front of the gate to block the roadway. The trial court, however, stated that it was convinced that Brian McCord did intend to block the gate by placing the trailer there, inferring that he knew of the adverse use by the Rays. There was also conflicting testimony concerning the frequency of the Rays' use. Conflicts in testimony are for the trial court to resolve, and the appellate court will defer to the trial judge's superior position to judge and determine the credibility of the witnesses. Dewitt v. Johnson, 349 Ark. 294, 77 S.W.3d 530 (2002).

Brian McCord argues that there is no evidence in the record that the Rays, their predecessors, or their agents used the roadway adversely. Brian McCord claims that the use was permissive until 1999. He states that he was not put on notice of an adverse claim of right until 2001, when he received a phone call and letter from Kenneth Ray and his attorney. The McCords ignore the fact that no formal notice of an adverse claim of right is required and that the trial court found that he was presumed to know that the Rays' usage was adverse. Arkansas case law states that if the usage of a passageway over land, whether it began as permissive or otherwise, continues for seven years after the facts and circumstances of the usage are such that the landowner would be presumed to know the usage was adverse, then the usage ripens into an absolute right. Gazaway, supra. Here, the trial court found that the Rays and their predecessors had used the roadway openly and continuously from 1960 to 1999 and that their "use was in such a manner and frequency to put any landowner on notice of use."

Brian McCord relies on the case of Harper v. Hannibal, 241 Ark. 508, 408 S.W.2d 591 (1966), for the proposition that there is no evidence that he ever surrendered any of his dominion or control over the road. The Harpers owned and resided upon acreage across which a road ran from the Hannibals' home to a public road. Id. The Hannibals' family and friends had used the road daily for many years. Id. Mr. Harper died and Mrs. Harper gave the Hannibals notice that she would no longer permit them and their visitors to pass through the gates and other enclosures on her land. Id. The Hannibals filed suit, alleging that a public and private easement had been established. Id. The trial court granted a decision for the Hannibals, but the Arkansas Supreme Court reversed, holding that the Hannibals continued to exercise control over the road and did not surrender their dominion over the road. Id.

Harper is distinguishable from the present case. The Harpers maintained multiple gates and gaps across the roadway and some, if not all of them, bore "posted" and "no trespassing" signs. Id. Although Brian McCord erected and maintained a gate across his property, it was left open most of the time and was erected many years after the Rays' and their predecessors' use of the easement had ripened into prescriptive use. Moreover, Brian McCord's maintenance of one open gate does not amount to the extensive actions taken by the Hannibals to maintain control over the road. Finally, the determination of whether a use is adverse or permissive, so as to create an easement, is a fact question, and former decisions are rarely controlling on this factual issue. Owners Assoc. of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001).

Even though the trial court found other evidence to support the Rays' position, the trial court pointed out in its opinion the fact that Kenneth Ray erected a gate across the roadway which led only to his land, was sufficient evidence by itself to put the McCords on notice of the Rays' adverse use. Some circumstance or act in addition to, or in connection with, a use that indicates that the use was not merely permissive is required to establish a right by prescription. Id. Here, Kenneth Ray's erection and maintenance of the gate in addition to his use was sufficient evidence to support the finding that the McCords were presumed to know that the Rays' usage was adverse. The trial court's decision, therefore, that a prescriptive easement exists is not clearly erroneous.

The McCords' second point on appeal is that the trial court erred by ignoring the fact that he had erected a gate where the road in question initially intersects his property and that this fact bolsters his testimony that all travel along the roadway was permissive. Brian McCord testified that he put the gate up about five and a half years before trial and that he does not close the gate except when he or one of his neighbors closes it to hold in a stray goat or calf. Brian McCord cites Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970), for the proposition that the erection and maintenance of a gate across a road by an owner, when his purpose is not to restrain livestock, constitutes notice to the public that any travel on the road is by permission, even thought the gate may be open during certain seasons. Hoover further states that erection and maintenance of a gate by an owner does not give notice that subsequent use of a road across the land is permissive and not as a matter of right, unless it was maintained as a means of asserting the owner's dominion over the road. Id.

Brian McCord testified that he erected the gate where Double Road intersects his property to let pedestrians and motorists know that the property beyond the gate was private. The McCords argue that the trial court erred in giving no weight to Brian McCords testimony that he erected the gate, showing that he had exercised dominion and control over his property. The gate, however, was open most all of the time, and other evidence exists to support the fact that the Rays' use was adverse and not permissive, specifically Kenneth Ray's erection of his own gate intersecting Double Road to allow him access to his property from the road. We cannot agree that the trial court should have given more weight to this fact as it only bolsters Brian McCord's testimony that the use was permissive, and this court will defer to the trial judge's decision on how much weight to accord a witness's testimony. See Dewitt, supra. Brian McCord erected the open gate in 1998, after the easement had been in use for greatly in excess of seven years by the Rays and their predecessors. Moreover, Brian McCord's gate was not in place for seven years when the Rays filed suit in 2003. Affirmed.

Robbins and Griffen, JJ., agree.