Alcuin Wiederkehr et al. v. Thomas Timmerman et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-940

June 8, 2005

ALCUIN WIEDERKEHR, et al. AN APPEAL FROM FRANKLIN COUNTY

APPELLANTS CIRCUIT COURT

[E-2002-13]

v.

HONORABLE RICHARD GARDNER,

THOMAS TIMMERMAN, et al. CIRCUIT JUDGE

APPELLEES

AFFIRMED

Olly Neal, Judge

This is a dispute over the ownership and use of a rural road in Franklin County among appellants Alcuin Wiederkehr, Linda Wiederkehr (his wife), and Swiss Family Vineyards1 (the plaintiffs below) and appellees Thomas Timmerman and Wayne Campbell. We affirm the trial court's decision in all respects.

Timmerman and his wife, Theresa, and Campbell and his wife, Joyce, own property in Section 34, and to the south, the Wiederkehrs own property in Section 3. The road at the center of this dispute runs along the south side of the line dividing the sections. In 1998, the Wiederkehrs sold a tract of land abutting Highway 186 to Audrey House, reserving a thirty-foot easement along the northern boundary line. In 2000, they sold her an adjoining tract to the west. In this deed, the Wiederkehrs reserved a fifty-foot easement along the northern boundary. After Ms. House commissioned a survey of the second tract, appellees built fences on the north side of the road using her survey stakes as starting points. When appellees purchased their property, there was an old meandering fence, which was strungfrom tree to tree, near their southern boundary lines. Their new fences were several feet south of the old fence line. For many years, there was a gate where the road intersected Highway 186 and another gate approximately one-quarter mile to the west; on occasion, these gates were locked.

Seeking injunctive relief, appellants filed their February 2002 complaint in the Franklin County Circuit Court, alleging that the road between Sections 3 and 34 had been used by the public for 100 years; that appellants had established, by adverse possession and easement reservation, the right to use the road; and that appellees had interrupted this use by constructing a fence down its center.

The court granted an ex parte injunction against further construction of the fence. Each appellee filed answers stating that all of the property owners had not been identified and that the parties had not been properly joined. Appellee Timmerman moved to dissolve the ex parte order, alleging that Campbell's fence, which had already been built when the ex parte order was entered, was not within the roadway but was immediately north of it on his southern property line. As exhibits to his motion, Timmerman attached three surveys, two commissioned by Mr. Wiederkehr and the other commissioned by Ms. House, which showed that the fence was not in the roadbed but was south of appellees' southern property lines. Before trial, the parties entered into stipulations, and Campbell, Timmerman, Mr. Wiederkehr, and Ted Skolarski testified at trial. After the trial, the circuit judge personally viewed the property.

On June 21, 2004, the trial judge entered a judgment dismissing appellants' complaint, finding that appellants failed to prove adverse possession of any property north of the new fence; that the road is south of appellees' land and on property where the Wiederkehrs retained express easements; that appellants did not join Joyce Campbell, Theresa Timmerman, Audrey House, or Ms. Thomas, who were necessary parties to this action; that appellants also failed to establish a prescriptive easement; and that there was no evidence of any adverse claim or use by Swiss Family Vineyards, Inc. This appeal followed.

On appeal, appellants raise the following points: (1) the trial court erred in finding that there was no roadway established by adverse possession or prescription and that appellees' new fences did not interfere with the use of the roadway; (2) the trial court erred in finding, after trial, that not all of the necessary parties were joined; (3) the trial court erred in permitting appellees to build their fences on the wrong side of a boundary established by acquiescence; (4) the trial court erred in failing to find that the road was a public road.

Adverse Possession and Prescription

Appellants' first point concerns the sufficiency the evidence. They contend that the trial court's findings that they did not acquire a road by adverse possession or a prescriptive easement2 and that appellees' fences did not interfere with their use of the road are clearly erroneous. They base this argument on the following: Mr. Wiederkehr testified that the road had been traveled by the public and maintained by him, his predecessors, and, in part, the county for at least sixty years; in the past, twelve and fourteen-foot-wide farming equipment had traveled along the road; before this dispute, neither appellee obtained a survey or established a boundary line, other than the old fence, which was between fifty-four inches and twelve feet north of the new fence line; and the photographs introduced into evidence demonstrated the new fence's interference with appellants' use of the road and access to the drainage ditch alongside it.

Appellants acknowledge that the trial judge's findings regarding adverse possession and prescription were based on his finding of fact that the road is located entirely on the Wiederkehrs' property (including the reserved easements). Nevertheless, appellants argue, there is no proof that the new fences follow the line and, even if they do, appellees cannot interfere with the use of the road or the ditch. Appellants also point out that no surveys of appellees' property were introduced. In response, appellees note that all of the surveys, including those commissioned by Mr. Wiederkehr, show that the road is located within Section 3, while appellees' property is to the north, in Section 34. They also state that the Wiederkehrs' deeds to Ms. House demonstrate that the northern boundaries of the easements therein reserved also served as the northern boundary lines of the property conveyed. They stress that whether any portion of the road was ever located in Section 34 was a question of fact for the trial judge, who personally viewed the property. We agree.

Whether possession is adverse to the true owner is a question of fact. White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001); Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999). We will not reverse a trial court's finding regarding adverse possession unless it is clearly erroneous. Dillard v. Pickler, 68 Ark. App. 256, 6 S.W.3d 128 (1999). We defer to the trial court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.

Adverse possession is governed by both common and statutory law. Enacted in 1995, Ark. Code Ann. § 18-11-106(a) (Repl. 2003) requires a party to have actual or constructive possession of the property being claimed and have either:

(1)(A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property.

(B) For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or

(2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of title.

Subsection (b) provides that these requirements are in addition to all other requirements for establishing adverse possession.

To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Rickett v. O'Dell, 86 Ark. App. 86, ___ S.W.3d ___ (2004); White River Levee Dist. v. Reidhar, supra. It is ordinarily sufficient proof of adverse possession that the claimant's acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. A claimant may "tack on" the adverse-possession time of an immediate predecessor in title. Id. For possession to be adverse, it is necessary that it be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land. Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780 (1998). See also Sherman v. Wallace, ___ Ark. App. ___, ___ S.W.3d ___ (Nov. 3, 2004).

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 Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). Like adverse possession, prescriptive easements are not favored in the law, because they necessarily work corresponding losses or forfeitures in the rights of other persons. Id. The determination of whether the use of a roadway is adverse or permissive is also a question of fact, which will not be reversed by this court unless it is clearly erroneous. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). In fact, former decisions are of little value on the factual issue of whether a particular use is permissive or adverse. Id. 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. Id. Unlike adverse possession, however, prescriptive use need not be exclusive. One asserting an easement by prescription must show by a preponderance of the evidence that his use has been adverse to the true owner and under a claim of right for the statutory period. Id. 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.; see also Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003).

Although appellants argue that the testimony was "uncontroverted" that the road had been maintained by Mr. Wiederkehr, his predecessors, and the county for at least sixty years, that testimony was presented only through Mr. Wiederkehr, who was a plaintiff. The testimony of an interested party is never considered uncontroverted but is instead considered disputed as a matter of law. Ester v. Nat'l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); Nipper v. Brandon Co., 262 Ark. 17, 553 S.W.2d 27 (1977). The finder of fact may accept or reject any part of a witness's testimony, Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994), even if it is uncontradicted or unimpeached. Farm Bureau Mut. Ins. Co. of Ark. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). Further, the weight of evidence is determined not by the number of witnesses testifying on each side but by the effect of their testimony. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

It is apparent that the new fence is, in some places, south of the drainage ditch. However, the photographs clearly reveal the infrequent use to which this road was put. In most places, it is simply a narrow, dirt road close to which many trees grew to maturity. As the trial judge found, the gates appear to be ten or twelve feet in width, which is inconsistent with appellants' claims of a twenty-four-foot road. Ted Skolarski testified that the road was travelable, but not "kept," and could not be traversed with a "fine vehicle." Additionally, Mr. Wiederkehr's testimony that Ms. House cut trees south of the old fence a couple of months before the new fence was built, to accommodate the passage of dump trucks, supports the judge's finding that the size of the existing trees and the stumps of trees recently cut demonstrated that the area had not been used for a road or a drainage ditch for many years. Additionally, the trial judge personally viewed the property before making his decision.

Deferring to the trial judge's superior position to observe the witnesses and assess the evidence, and considering his personal view of the roadway, we affirm his findings on the issues of adverse possession and prescription.

Necessary Parties

There is no dispute that appellee Campbell owns his property with his wife, Joyce, as tenants by the entirety and that appellee Timmerman and his wife, Theresa, also own their land as tenants by the entirety. In their second point, appellants urge us to reverse and remand with instructions that the other landowners, Mrs. Thomas and Ms. House, and Joyce Campbell and Theresa Timmerman, be joined in this action as necessary parties and that the case be retried.

It is settled law that all persons whose rights might be affected by the determination of a controversy involving land must be made parties to an action. Harrison v. Knott, 219 Ark. 565, 243 S.W.2d 642 (1951); Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865 (1950). See also Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); Wood v. McCoy, 228 Ark. 880, 311 S.W.2d 755 (1958); Lancaster v. Robinson, 221 Ark. 767, 256 S.W.2d 330 (1953); Ark. R. Civ. P. 19. However, appellants made no attempt to bring the absent landowners into this lawsuit. Under the doctrine of invited error, an appellant may not complain on appeal of an erroneous action of the trial court if he has induced, consented to, or acquiesced in that action. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001); Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984). We therefore affirm on this issue.

Acquiescence

Appellants assert in their third point that the trial court erred in failing to find that they had established a boundary by acquiescence along the old fence line. However, appellants did not raise this issue in their complaint, and the trial judge did not address the doctrine of acquiescence. It is a basic rule of appellate procedure that we will not address arguments raised for the first time on appeal. Southway Corp. v. Metropolitan Realty & Dev. Co., LLC, ___ Ark. App. ___, ___ S.W.3d ___ (Apr. 3, 2005). Even if appellants had raised the issue at trial, they could not avoid the effect of there being no ruling by the trial court on this issue. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to our consideration of an issue on appeal. See Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). Therefore, we do not address this issue.

Public Road

Appellants' final argument is that the trial court erred in refusing to find that the road was a public road, again noting Mr. Wiederkehr's testimony about the sixty years during which the road had been used by people for access, farming, and hunting while being maintained by the county. The use of a road by many private citizens over a long length of time can establish a public prescriptive easement. Carson v. County of Drew, supra. A public road does not have to be established by a formal order of the county court; a public prescriptive right-of-way can be established by the county working the road for a period of seven years. Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984).

There was no dispute that the gates across this road were locked at times. Also, the road's condition in the photographs is so rough that it is obvious that it was used only infrequently and by few people. As we discussed above, the trial judge personally viewed the property and noted in his decision that the gates were only ten to twelve feet in width and that large trees had grown up alongside the road. Thus, the same evidence that contradicted appellants' claims of adverse possession and prescriptive use also supports the trial judge's finding that the road was not used by the public. We therefore affirm on this point.

Affirmed.

Robbins and Glover, JJ., agree.

1 Mr. Wiederkehr is chairman and chief executive officer of Swiss Family Vineyards.

2 Although appellants did not assert a prescriptive easement in their complaint, the trial court made findings of fact regarding an easement by prescription.