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Peregrine Trading, LLC v. Rowe

Court of Appeals of Arkansas, Division III

March 7, 2018

PEREGRINE TRADING, LLC APPELLANT
v.
STEVE ROWE AND STACY ROWE APPELLEES

         APPEAL FROM THE LAFAYETTE COUNTY CIRCUIT COURT [NO. 37CV-15-17-2] HONORABLE BRENT HALTOM, JUDGE

          Bell & Boyd, PLLC, by: Michael W. Boyd and Karen Talbot Gean, for appellant.

          Sanford Law Firm, PLLC, by: Josh Sanford, for appellees.

          ROBERT J. GLADWIN, JUDGE

         The Lafayette County Circuit Court granted the directed-verdict motion made by appellees Steve and Stacy Rowe, husband and wife, and found they had a prescriptive easement for sewer field lines located on land owned by appellant Peregrine Trading, LLC, which is solely owned by Eric Fletcher. Appellant argues on appeal that the circuit court erred by (1) considering the credibility of the evidence in ruling on the Rowes' directed-verdict motion related to appellant's claims for trespass, negligence, and private nuisance and (2) finding that the Rowes had a prescriptive easement. We affirm.

         I. Standard of Review

         In civil bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence. Schroeder v. Towmate, LLC, 2017 Ark.App. 516, at 3, 530 S.W.3d 380, 382. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.

         II. Facts

         Appellant filed a complaint against the Rowes alleging that it owned approximately 100 acres of property adjacent to them on Lake Erling in Lewisville, Arkansas. While maintaining the property, Fletcher noticed an area that had become wet and had a foul smell. He dug a trench and exposed a sewage field line originating on the Rowes' property. Appellant claimed that the Rowes' sewage field line was wrongfully and intentionally placed on its property without authority, deed, easement, or permission. Appellant also alleged that the line was not compliant with state law and regulations and did not meet standards for approval by the state or county. Appellant sought damages caused by the Rowes' (1) intentional trespass; (2) negligent installation of a sewage field line on appellant's property; (3) sewage field line, which caused damage to the property by contamination, seepage, and noxious odors; and (4) creation of a private nuisance.

         The Rowes responded with an answer, counterclaim, and third-party complaint against Fletcher. The Rowes alleged that appellant filed its lawsuit after AGRED Foundation, which owned land around the lake and had two members, one of whom is Fletcher, began assessing annual fees for easement rights and docks on the lake, and the Rowes began questioning the validity of the foundation. The Rowes alleged that in retaliation for Stacy Rowe's questioning, appellant filed suit against them. The Rowes alleged that the septic field line was part of a system that had been in existence in that location since 1993. They argued that they had a prescriptive easement on appellant's property because (1) they bought their property in 2004; (2) the system, including field lines, had been there since before 1993; (3) they added a leg onto the field line in 2005; and (4) use of appellant's property had been under a claim of right for more than seven years. The Rowes also alleged that appellant had committed abuse of process against them by filing its complaint; had intentionally interfered with their lawful possession of their field line, committing trespass to chattel; and had committed conversion of their property by digging up the field line, damaging and destroying it. The third-party complaint against Fletcher was based on the facts as alleged in the Rowes' answer and counterclaim and sought damages for abuse of process, trespass to chattel, and conversion.

         The Rowes filed a motion for summary judgment, and the circuit court denied it on August 15, 2016, finding that the motion sought the court's decision on the issue of prescriptive easement as uncontroverted and that the court was "unwilling at this stage to make that leap based on the pleadings[.]" The circuit court's order states:

Since the other parts of [appellant's] complaint for trespass, negligent installation, damages of such installation, and private nuisance are directly related to the claim of prescriptive easement, the Court must hear the facts of such easement to necessarily get to the other claims.

         At trial, Fletcher testified that he is the sole member of appellant Peregrine Trading, LLC, and that the company owns the land at issue. Appellant bought the land from International Paper Company (IP) in 2012; the Rowes' property is on the eastern border of appellant's property; and Cook Road serves as the dividing line between the properties. He said that he had been walking the property in January 2015 when he discovered a smell and found a small puddle with grey water. He said that he had been on the property six months before to lay a water line, which was about twenty-five feet away from the puddle.

         Fletcher said that after he discovered the puddle, he rented a backhoe and asked Billy Maus, an experienced heavy-equipment operator, to help him dig. Fletcher instructed Maus where to dig, and Maus found the sewer line with the backhoe. Fletcher denied moving, breaking, or damaging the line that was found. Fletcher concluded that the pipe was coming from the Rowes' house. Pictures of the uncovered pipe were admitted in evidence. Fletcher said that he had left the pipe uncovered.

         Fletcher said that he had not known the sewer line was there before and that he had not seen anything to lead him to believe that there was a sewer pipe running from the Rowes' house onto appellant's property. He said that there were no visual indicators of septic lines running onto appellant's property when the property was purchased. He never gave the Rowes permission to put or maintain a sewer line on the property, and IP never put him on notice. Fletcher asked that the Rowes remove the lines and restore the surface of the property. He also asked that the Rowes remove the leg that was added on the line, which he had learned about during Steve Rowe's deposition.

         Fletcher said that the use of the land had not been affected, but the potential for development was affected by the sewer lines. He said that if they were not removed, the acre to half acre of land was "probably not developable and marketable." He said that the only inconvenience or disruption of use of the property would be in the future if the lines were not removed. He said that the land had a value of $35, 000 per half acre up to $65, 000 for an acre if there were no sewage lines and if it were developed. He said that with the lines remaining, the value would be affected.

         On cross-examination, Fletcher said that his office manager put a trailer on the property and described it as a temporary camp. He said it was a trailer with a septic system and field lines, and he did not know where the field lines ran. He said that he had donated the land to her and that "we were in the process of subdividing it and that was a token of my appreciation for the work she had done for me. She has not purchased it yet. I have not donated it yet. I don't charge her anything at this point." He said that since 2012, he had never noticed anything except the wet spot the one time about which he had testified.

         Billy Maus testified that he had done Fletcher a favor by digging up the field line with an excavator. He said that he had not damaged the line and that they had left the pipe exposed. He said that he had begun working for Fletcher three years ago and that he currently worked for one of Fletcher's companies. He said that he had been there at Fletcher's direction that day and that the wet spot had been about the size of a car hood.

         Stacy Rowe testified that she and her husband own the property adjacent to appellant's property, and they had bought their land in 2004. She said that the previous owner had installed a septic tank between the house and Cook Road, and she had never asked where the field lines ran. She said that when they bought the property, they had kept the end of the septic line cleaned out; they had stayed off of it; and they had cut trees off of it. She said that it had slowly been covered with leaves and dirt because they had not been maintaining it. She said that she had been able to see the field line discharging at the surface at one time. She said this had happened while IP owned the land and continued until appellant bought it. She said that they had not maintained the end of the line after appellant bought the property. She said that she had testified in her deposition that there had never been a visual indicator that there was a septic line running across the road from her house onto appellant's property.

         Stacy Rowe said that the original septic line had been there when they bought the property, that she understood the line to have been there since 1993, and that the 1993 line replaced the line originally built in the 1960s. In 2005, she and her husband added a leg to the existing field line to help with slow draining. Her husband had used a plumbing snake from the end of the original pipe back into the system. The end of the pipe is on appellant's land, and it was exposed when he used the plumbing snake. They did not get permission from IP when they added the leg to the field line. She said they were not hiding, they had no written easement, and it was her understanding that there was an agreement to put field lines on the property. She said that they did not talk to IP first because they thought they had permission, it was not hurting anything, and "everything is there as with all the neighbors." She said that the mounds where her neighbors' septic lines come out on the same property are visible and that the area is grassier where the line ends. She said that there are visual indicators of her neighbors' septic lines going onto appellant's property. Since Fletcher dug up their sewer field line, the Rowes had not used their septic tank. She said that part of the pipe had been broken or cut and removed from the exposed field line, and they have not been able to use their house. She said that there had never been a problem with the field lines until she began asking questions about AGRED. She said that her husband had maintained the area around the field line from 2004 until 2012. She said that when they cleaned the field line, they could see the pipe coming out of the ground on appellant's property.

         Steve Rowe said that the only way for IP to have known that their septic lines were on IP's property was that "anyone who had any common sense coming down the road knew it shouldn't be going into the lake. It had to cross the road if you were doing it legally." He said that green grass did indicate the location in the summertime. He did not know at what angle the septic line traveled from his house to the road and across. He said that the uncovered line depicted in the picture admitted in evidence was not the end of the original septic line. He knew this because he had put the plumbing snake in the end of the line. He said that he could locate the neighbors' septic lines that traveled onto appellant's property but admitted that he had stated in his deposition that he could not locate the neighbors' lines. He ...


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