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Edge v. Sutherland

Court of Appeals of Arkansas, Division II

May 6, 2015

LARRY EDGE and JULIUS EDGE, APPELLANTS
v.
GARRY B. SUTHERLAND and BRENDA SUTHERLAND, Husband and Wife, as Co-Trustees of the SUTHERLAND REVOCABLE TRUST DATED July 25, 2007; KURT PHILLIPS and VIRGINIA PHILLIPS, Husband and Wife; GARRY L. SUTHERLAND and ANGELA SUTHERLAND, Husband and Wife, APPELLEES

Page 691

APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT. NO. CV-13-51-4. HONORABLE TIM WEAVER, JUDGE.

Grayson & Grayson, P.A., by: Keith L. Grayson and Melanie L. Grayson, for appellants.

Murphy, Thompson, Arnold, Skinner & Castleberry, by: Blair Arnold; Blair & Stroud, by: Robert D. Stroud and Barrett S. Moore, for appellees.

KENNETH S. HIXSON, Judge. KINARD and GLOVER, JJ., agree.

OPINION

Page 692

KENNETH S. HIXSON, Judge

Appellants Larry and Julius Edge (" Edge" or " Edges" ) appeal the order of the Cleburne County Circuit Court that rejected their request for an easement across the lands of appellees Garry Bryant and Brenda Sutherland, as co-trustees of the Sutherland Revocable Trust dated July 25, 1997 (" Sutherland Trust" or " Bryant Sutherland" ); Kurt and Virginia Phillips (" Phillips" ); and Garry Lynn and Angela Sutherland (" Lynn Sutherland" ). The Edges acquired an existing dedicated roadway easement to access their property from the east, but they wanted to use a different, shorter route across these neighboring properties from the south, filing suit in April 2013. The complaint alleged four counts: Count I sought quiet title as to the correct location of the Edge boundary lines; Count II and Count III sought an easement by implication or, alternatively, by necessity over all appellees' properties; and Count IV sought a prescriptive easement or ownership by adverse possession of a particular portion of land (a " gap" between the southern boundary of the Edge property and the three acres of Phillips property). After hearing evidence presented by appellants, appellees moved for directed verdict[1] on all counts alleged in the complaint, which the trial court granted. This appeal followed.

Appellants do not contest the dismissal of their complaint on Counts I and IV. Appellants argue that the trial court erred in granting a directed verdict and dismissing their complaint because an easement existed for the gravel drive across the Sutherland Trust and Lynn Sutherland properties and because they presented a prima facie case of easement by implication or necessity across all the intermediate lands. We hold that the trial court did not err in dismissing their complaint seeking an easement to cross all these properties. Appellants have not demonstrated trial court error. We therefore affirm.

The standard of review is well settled. This case was disposed by directed verdict at the close of the plaintiffs'

Page 693

case. In determining on appeal whether a directed verdict (or dismissal at a bench trial) was properly entered at the trial court level, we review the evidence in the light most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Nicholson v. Simmons First Nat'l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993). A motion for directed verdict or dismissal should be granted only if there is no substantial evidence to support a jury verdict. Deck House, Inc. v. Link, 98 Ark.App. 17, 249 S.W.3d 817 (2007). In making that determination, the trial court does not engage in fact finding or determine questions of credibility. Where the evidence is such that fair-minded persons might reach different conclusions, then a fact question is presented, and dismissal or directed verdict should be reversed. Id.

Appellants sought the judicial creation of an easement over land owned by three different persons or entities with the segments of the requested easements created by different judicial mechanisms. Over two segments, appellants requested an easement by implication or by necessity, over another segment an express easement by reservation in a prior deed (or by implication or necessity), and over another segment by easement by prescription (or implication or necessity). With each requested type of easement, the law requires different and distinct elements of proof.

An easement by implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. Berry v. Moon, 2011 Ark.App. 781, 387 S.W.3d 306. In order for such an easement to be established, it must appear not only that the easement is obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property. Id. The term " necessary" in this context means that there could be no other reasonable mode of enjoying the dominant tenement without the easement. Id. The ...


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