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Barnett v. Sanders

Court of Appeals of Arkansas, Division I

December 10, 2014

JERRY W. BARNETT and ROSE S. BARNETT, Husband and Wife, APPELLANTS
v.
GARY L. SANDERS and SHARI H. SANDERS, Husband and Wife, and STUART H. SANDERS. APPELLEES

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CV 2013-733-2. HONORABLE DOUG MARTIN, JUDGE.

Reece Moore Pendergraft LLP, by: Larry McCredy, for appellant.

No response.

DAVID M. GLOVER, Judge. PITTMAN and WHITEAKER, JJ., agree.

OPINION

Page 212

DAVID M. GLOVER, Judge

Appellants Jerry and Rose Barnett appeal from the order of the Washington County Circuit Court granting appellees Stuart Sanders and his parents, Gary and Shari Sanders (non-resident co-owners), injunctive relief and prohibiting the Barnetts'

Page 213

placement of fencing and gates across the northern easement on the Barnetts' property. On appeal, the Barnetts argue that they did not unreasonably restrict or interfere with the Sanderses' use and enjoyment of their easement across the Barnetts' property; they also assert that the Sanderses' complaint is not ripe for adjudication because Stuart Sanders has never been prevented from using the easement. We reverse and remand in part and affirm in part.

This case involves five contiguous parcels of property. The Sanderses purchased the easternmost parcel in May 2007 from the Darrell Edward McFarland Revocable Living Trust. The Barnetts purchased the three westernmost parcels from the McFarland Family Trust in April 2012. The parcel between the Sanderses' property, which was possibly going to be developed at some point in the future by Stuart, and the Barnetts' property is owned by another person not a party to this appeal. The Sanderses' deed contains sixty-foot easements described by metes and bounds across the northern and southern sides of the Barnetts' property. Jerry Barnett erected fences and sixteen-foot unlocked gates across the northern easement to facilitate his rotational grazing cattle operation. The Sanderses filed a petition for injunctive relief against the Barnetts for blocking the northern easement.

At trial, Jerry Barnett testified that he has always acknowledged that the Sanderses have an easement, that currently the gates were unlocked, and, that when he needed to lock the gates to secure his cattle, he would provide Stuart Sanders with the combination so that Stuart Sanders continued to have access. There was also testimony at trial that the northern easement was not passable without the performance of significant construction work to traverse a creek and a spillway, as well as remove brush piles and trees; however, Stuart Sanders testified that he could still move equipment along the north easement even though there were ditches. Stuart testified that currently the property was still zoned for agriculture, although he said that he might develop the property at some point in the future. He testified that the stopping and opening of gates would not practically work for him.

The trial court issued a letter opinion granting the Sanderses' petition for injunctive relief based on the holding in Wilson v. Johnston, 66 Ark.App. 193, 990 S.W.2d 554 (1999). An order granting the Sanderses' petition for injunctive relief was filed on February 20, 2014. The Barnetts timely filed a notice of appeal on March 14, 2014, as well as an amended notice of appeal on May 16, 2014. The Barnetts make two arguments on appeal: (1) Stuart Sanders's use and enjoyment of the easements across the Barnett property was not unreasonably restricted or interfered with by the erection of the gates, and (2) the Sanderses' complaint was not ripe for adjudication because Stuart Sanders has never actually been prevented from using the easement.

Our standard of review following a bench trial is whether the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. Paschal v. Paschal, 2011 Ark.App. 515. 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 made. Id.

The trial court's reliance on Wilson v. Johnston, supra, in this case is misplaced. In that case, Wilson purchased property in 1964 containing a private-way ...


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