Rehearing Denied May 1, 2019
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BCV-17-183], HONORABLE RICHARD LUSBY, JUDGE
Office of James W. Harris, by: James W. Harris, Blytheville,
Burge, Prevallet & Coleman, Blytheville, by: Robert L.
Coleman, for appellee.
D. VAUGHT, Judge
Gifford appeals the Mississippi County Circuit Courts order
in favor of appellee Darrell McGee. Following a bench trial,
the court found that McGee had proved the existence of an
oral easement entitling him to the use of a portion of
Giffords property for the purpose of maintaining a septic
line. We affirm.
parties are adjoining landowners outside the city of
Blytheville. In 1951, Virgil and Betty McGee purchased
approximately twelve and a half acres of land. In 1988, they
conveyed 1.28 acres of that land to their son, appellee
McGee, so that he could build a home on it. He did, and
during the process he had his land and his parents land
tested for installation of a septic system. While his own
property did "perk," it was not as suitable as a
small area of sandy soil on his parents property, so his
parents let him install the field lines on their land.
Simpkins, a friend of the McGee family, purchased 6.09 acres,
including the land on which McGees septic lines were
located, from Virgil and Betty McGee in 1995. Simpkins knew
about the field lines before he bought the property. He
testified the lines never caused him a problem. When asked if
he had given McGee permission to keep the field lines in
place, Simpkins acknowledged that he had. Simpkins told the
court that Virgil McGee had specifically asked Simpkins if it
was okay for the lines to remain in place, to which Simpkins
had responded that it was fine.
September 24, 2004, Gifford and his wife purchased the 6.09
acres from Simpkins. Gifford testified that when he bought
the land, he was not aware of the existence of the field
lines. He testified that about a month after he bought the
land, McGee approached him and told him about the field
lines. Gifford asserts that he gave McGee permission to keep
the field lines. McGee denies ever having a conversation with
Gifford about being able to keep his field lines in place.
McGee took the position that he had never asked Giffords
permission to maintain the septic lines because his father
had granted him that right.
Beary, an expert on septic systems with the Arkansas
Department of Health, testified that Gifford asked him to
investigate the field lines and that he found no evidence of
sewage in the pasture, but there was a strong odor of sulphur
that likely came from other sources. Beary also noted that
there was really no other spot that would meet the criteria
for locating septic field lines but that McGee could likely
obtain a waiver of the regulations and install a
McGees land is located approximately 800 feet from the
nearest city of Blytheville sewer line. Gifford testified
that he planned to build his home on his land and planned to
connect to the city sewer. It was undisputed that Gifford
could not install his own septic system on the land as long
as McGees lines remained in place.
Following the bench trial, the court found that McGee had an
oral easement for the field lines and that Gifford should
have, with reasonable diligence, discovered the existence of
the field lines before he bought the property. Gifford filed
a motion for reconsideration within ten days of the ...