Gifford v. McGee

          Rehearing Denied May 1, 2019

          APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. 47BCV-17-183], HONORABLE RICHARD LUSBY, JUDGE

         Law Office of James W. Harris, by: James W. Harris, Blytheville, for appellant.

         Reid, Burge, Prevallet & Coleman, Blytheville, by: Robert L. Coleman, for appellee.

         OPINION

         LARRY D. VAUGHT, Judge

          Julian Gifford appeals the Mississippi County Circuit Court’s order of judgment

Page 219

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 ...