APPEAL
FROM THE MISSISSIPPI C O U NT Y C IRC U IT C O U R T,
CHICKASAWBA DISTRICT [NO. 47BCV-17-183] HONORABLE RICHARD
LUSBY, JUDGE
Law
Office of James W. Harris, by: James W. Harris, for
appellant.
Reid,
Burge, Prevallet & Coleman, by: Robert L. Coleman, for
appellee.
LARRYD. VAUGHT, JUDGE.
Julian
Gifford appeals the Mississippi County Circuit Court's
order of judgment 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 Gifford's property for the purpose of
maintaining a septic line. We affirm.
The
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.
Stan
Simpkins, a friend of the McGee family, purchased 6.09 acres,
including the land on which McGee's 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.
On
September 24, 2004, Gifford and his wife purchased the 6.09
acres from Simpkins.[1] 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 Gifford's
permission to maintain the septic lines because his father
had granted him that right.
David
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
"non-typical system."
McGee's
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 McGee's
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 entry of
judgment, which was deemed denied. He filed a timely notice
of appeal.
"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." Peregrine Trading, LLC v. Rowe, 2018
Ark.App. 176, at 1, 546 S.W.3d 518, 520. 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. at
1-2, 546 S.W.3d at 520. Facts in dispute and determinations
of credibility are solely within the province of the
fact-finder. Id.
On
appeal, Gifford argues that the circuit court erred in
finding that McGee proved by clear and convincing evidence
the existence of an oral easement. The Arkansas Supreme Court
has held that an easement is effective in the absence of a
writing if certain elements are met: it must be accompanied
by (1) consideration, (2) action and reliance on the grant,
and (3) the grantees being permitted the granted use.
Warren v. Cudd, 261 Ark. 690, 693, 550 S.W.2d 773,
776 (1977). Gifford does not challenge the sufficiency of the
proof as to these elements but cites Hannah v.
Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952), for the
rule that an oral easement is binding on the purchaser of a
servient piece of property only if the purchaser had actual
or constructive knowledge of the easement.
The general rule is that whatever puts a party upon inquiry
amounts in judgment of law to notice, provided the inquiry
becomes a duty as in the case of vendor and purchaser, and
would lead to the knowledge of the requisite fact, by the
exercise of ordinary diligence and understanding. Or as the
rule has been expressed more briefly, where a man has
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