WILSON S. CLARK, BY AND THROUGH HIS ATTORNEY-IN-FACT, JASON CLARK APPELLANT
v.
JIMMY H. EUBANKS AND MARSHA A. EUBANKS APPELLEES
APPEAL
FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44CV-17-96]
HONORABLE DOUG MARTIN, JUDGE AFFIRMED
Erwin
L. Davis, for appellant.
Putman
Law Office, by: William B. Putman, for appellees.
N.
MARK KLAPPENBACH, JUDGE
Wilson
Clark, by and through his attorney-in-fact, his son Jason
Clark, filed a petition in the Madison County Circuit Court
to establish a prescriptive easement in a roadway crossing
over property owned by appellees Marsha and Jimmy Eubanks.
The circuit court denied Clark's petition. Clark now
appeals, and we affirm.
The
road in question intersects with a county road and runs
through the Eubankses' property and onto the eastern
boundary of the property owned by Wilson Clark. Clark alleged
in his petition that he and his predecessors in interest had
used the roadway in an open, notorious, hostile, and adverse
manner for a continuous period of time in excess of fifty
years such that their use and maintenance had ripened into a
roadway of prescription. He claimed that Jimmy Eubanks had
threatened to close the road or otherwise prevent the Clark
family's use of the road.
Diana
and Jason Clark testified at the November 2017 bench trial
that they had lived on the property owned by Wilson Clark for
twenty years and had always used the road in question to
access their home. They said that the county had graded the
road upon their request about twice a year for the last
twenty years. They testified that they had never asked for or
been given permission to use the road, and they had never had
anyone try to limit their use of the road until Jimmy Eubanks
bought his property in March 2017. Jason testified that
Eubanks had threatened to block the road with gates and
fences and to install cattle guards in the road and the
lateral lines for his septic system near the road. Jason also
claimed that Eubanks had threatened to shoot at anyone using
the road.
Jimmy
Eubanks testified that he purchased his property in March
2017 from a family member and began living there in July
after putting a modular home on the property. He denied that
he had threatened to harm the Clarks, had blocked or done
anything to interfere with the Clarks' use of the road,
or had told them that they could not use the road. Eubanks
said that he had spoken to a bulldozer operator about
improving the road on his property due to its rough
condition. This would result in the road being torn up for a
couple of days, but the bulldozer operator would make an
alternate route through a field for the Clarks to use while
the work was being done. Eubanks said that when he informed
Jason of his plan, Jason "blew up" and threatened
to sue. Eubanks testified that the county had not maintained
the road and had graded it only twice in twenty years. He
said that if he chooses to run cows on his property in the
future, he would like to install a cattle guard in the road.
The
circuit court ruled from the bench that the Clarks had not
proved that they had used the road in an adverse or hostile
manner for seven years. The court's order dismissed
Clark's petition upon finding that he had failed to meet
his burden of establishing and proving a prescriptive
easement.
We
review equity cases de novo on the record, but we will not
reverse a finding of fact by the circuit court unless it is
clearly erroneous. Baker v. Bolin, 2012 Ark.App.
141. In reviewing a circuit court's findings, we give due
deference to that court's superior position to determine
the credibility of the witnesses and the weight to be
accorded to their testimony. Id. 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
committed. Id.
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. Wilson v. Schuman, 90
Ark.App. 201, 205 S.W.3d 164 (2005). In Arkansas, it is
generally required that one asserting an easement by
prescription show by a preponderance of the evidence that his
or her use has been adverse to the true owner and under a
claim of right for the statutory period. Id. The
statutory period of seven years for adverse possession
applies to prescriptive easements. 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 of right are being exerted. Id. Mere
permissive use of an easement cannot ripen into an adverse
claim without clear action, which places the owner on notice.
Id. Some circumstance or act in addition to, or in
connection with, the use that indicates the use was not
merely permissive is required to establish a right by
prescription. Id. The plaintiff bears the burden of
showing by a preponderance of the evidence that there has
been adverse, not permissive, use of the land in question.
Id.
Clark
relies on the following principle as stated by the supreme
court in arguing that his family's use of the road over
several decades was adverse to Eubanks:
Where there is usage of a passageway over land, whether it
began by permission or otherwise, if that usage continues
openly for seven years after the landowner has actual
knowledge that the usage is adverse to this interest or where
the usage continues for seven years after the facts and
circumstances of the prior usage are such that the landowner
would ...