Amason v. City of Calion

          Rehearing Denied March 27, 2019

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          APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70CV-2015-37], HONORABLE DAVID F. GUTHRIE, JUDGE

         Robert S. Tschiemer, Mayflower, and Caleb B. Baumgardner, El Dorado, for appellant.

          Williams & Anderson PLC, by: Alec Gaines, for appellee.

         OPINION

         RAYMOND R. ABRAMSON, Judge

          James Randall Amason, Sr., appeals following the Union County Circuit Court’s entry of summary judgment on his declaratory-judgment action in favor of the City of Calion, Arkansas (the City). On appeal, Amason argues that the circuit court erred by (1) finding that he was procedurally barred from asserting the declaratory-judgment action; (2) concluding that there were no genuine issues of material fact; and (3) relying on inadmissible evidence. He also argues that the circuit court erred by granting the City’s declaration of taking and denying his petition for an injunction. We affirm.

          This case arises out of the City’s construction of a wastewater plant on Calion Lake. Specifically, the plant is a sanitary sewage system that would discharge treated wastewater effluent into the lake. Amason owns property on Calion Lake, and on February 2, 2015, the City filed a condemnation complaint against Amason seeking two easements— a permanent easement

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and a construction easement— for construction of the plant.

          On March 2, 2015, Amason answered and filed a counterclaim for a declaratory judgment. Amason asked the court to declare that "if the City of Calion goes forward with its stand-alone sewer system and dumps effluent into Calion Lake such will void the Surface Lease that was executed on July 13, 1934." He attached the 1934 surface lease and a 1955 assignment of the surface lease to the Arkansas Game and Fish Commission (AGFC).

          The 1934 surface lease shows that certain Union County landowners leased their interests in several parcels of land for the establishment of Calion Lake. The surface lease states in part as follows:

The purpose of this lease is to provide a public fishing lake for the use, pleasure and enjoyment of the members of the public.... This lease shall continue and remain in full force and effect for such time as said lake is maintained and used for the purpose aforesaid, and no longer. If said lake is not maintained or the purpose of the lease abandoned, then rights herein surveyed shall cease and the right of possession to the surface of the lands shall return and vest in the respective owners.

          In 1955, the lease was assigned to AGFC so long as it "maintain[s], operate[s] and preserve[s] the said Calion Lake as a public fishing lake for the use, pleasure and enjoyment of the members of the public ...