Rehearing Denied March 27, 2019
Page 31
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 Courts 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 Citys
declaration of taking and denying his petition for an
injunction. We affirm.
This
case arises out of the Citys 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
Page 32
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 ...