APPEAL FROM THE DESHA COUNTY CIRCUIT COURT. NO. CV 2012-54-3. HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.
Jack R. Kearney, for appellant.
Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Kimberly D. Young, for appellee.
RITA W. GRUBER, Judge. ABRAMSON, GLOVER, and HIXSON, JJ., agree. HOOFMAN, J., concurs. VIRDEN, J., dissents.
RITA W. GRUBER, Judge
Alvester Bingham brings this appeal from an order of the Desha County Circuit Court granting C & L Electric Cooperative's motion for summary judgment and dismissing Bingham's complaint for trespass and conversion. The circuit court found that appellee had acquired a prescriptive easement across appellant's property for the purpose of maintaining and operating an electrical-distribution line. On appeal, appellant argues that the circuit court erred in granting summary judgment because there was a genuine issue of material fact regarding whether appellee's use was adverse or permissive. We find no error, and we affirm the circuit court's order.
Appellant purchased a small home and thirty-two acres in Kelso, Arkansas, from his aunt and uncle fifteen to twenty years before the hearing in this case. The land had been in his family for at least fifty years. Appellant had never lived on the property and had always leased it to a tenant. Ray Smith had leased the property from appellant since 1996. Undisputed evidence indicated that appellee's distribution line had run across the front of this property for over thirty years. Appellant testified by deposition that as long as he could remember, appellee had been " topping" the trees that were interfering with the line every five or ten years. The dispute in this case arose in October 2011 when appellee cut down a large oak tree, a persimmon tree, and several smaller trees that were interfering with the distribution line. Appellee left stumps and debris scattered in the yard.
Appellant filed a complaint against appellee, alleging that the trees had been planted fifty or sixty years earlier by appellant's grandmother and were of great sentimental value to the family. Appellant alleged that appellee had no authority to remove the trees and that appellant had been deprived of the enjoyment of the trees, the value of the lumber, and the historical significance of the trees. He alleged causes of action for conversion, trespass, and conspiracy.
Appellee filed an answer denying the allegations. Appellee also filed a motion for summary judgment, alleging that the undisputed facts established that appellee had a valid, prescriptive utility easement that permitted it to remove the trees and that appellant was barred by the seven-year statute of limitations from seeking relief. It attached an affidavit of Robert Rupe, appellee's right-of-way supervisor, who stated that appellee's line running across appellant's property had been there for over thirty years, that the line provided power to approximately thirty-five accounts, and that appellee's employees had top-trimmed the oak tree and the persimmon tree numerous times before cutting them down, but the trees repeatedly grew back and interfered with the line each time. He stated that the trees had become more difficult to trim because earlier trimmings had caused large knots to form in the wood and the branches to grow more densely than before. He said that the trees had been identified as problem trees directly in the right-of-way. Appellee also attached appellant's deposition, Ray Smith's deposition, pertinent national safety rules, U.S. Department of Agriculture right-of-way-clearing specifications, and photos of the distribution line on appellant's property. Appellant responded but attached no documents or evidence to his response. His brief included attached
excerpts from his deposition and Ray Smith's deposition.
The circuit court granted appellee's motion for summary judgment, finding that appellant had been aware of appellee's open, obvious, and adverse use of his property for more than the statutory seven-year period and that appellee had acquired a ten-foot easement by prescription on either side of its line for the purpose of maintaining and operating an electrical-distribution line. The court also found that all of the trees removed were within appellee's right-of-way and that their removal was necessary for public safety. The court reasoned at the hearing that appellant had acknowledged that appellee had " topped off" the trees from time to time over the last thirty or forty years and noted that the evidence showed that appellant acquiesced in this activity and that those he " inherited the property from" had also acquiesced. The court found that appellant failed to produce evidence to meet proof with proof.
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Gallas v. Alexander, 371 Ark. 106, 114, 263 S.W.3d 494, 501 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Stromwall v. Van Hoose, 371 Ark. 267, 279, 265 S.W.3d 93, 102 (2007). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Town of Gilbert v. Fruehauf, 2013 Ark.App. 17, at 2, 425 S.W.3d 816, 817. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 3, 425 S.W.3d at 817. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id.
On appeal, appellant contends that the court erred in granting summary judgment because appellee failed to establish that its use of appellant's property was adverse rather than permissive. He argues that the evidence merely showed that appellee accessed the property over the years solely to trim trees and maintain its distribution lines. He claims that access was never granted for any other purpose. He also argues that no one, ...