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Five Forks Hunting Club, LLC v. Nixon Family Partnership

Court of Appeals of Arkansas, Division III

September 11, 2019


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[Copyrighted Material Omitted]

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         Bridges, Young, Matthews & Drake PLC, Pine Bluff, by: Joseph A. Strode, for appellant.

         Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellee.


         KENNETH S. HIXSON, Judge

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          Five Forks Hunting Club, LLC (Five Forks or appellant), brings this appeal from a judgment of the Arkansas County Circuit Court awarding the Nixon Family Partnership (Nixon or appellee) two separately defined prescriptive easements across the property of Five Forks, one by land used occasionally for ingress and egress by vehicle travel, referred to as the "road easement," and the other by water through a ditch used at times for ingress and egress by boat, referred to as the "boating easement." Five Forks argues five points, contending that the circuit court erred (1) by awarding a prescriptive easement for boat travel; (2) by awarding Nixon multiple prescriptive easements; (3) in finding that the elements of a prescriptive easement were supported by the evidence; (4) by allowing Nixon to delimit the boating easement; and (5) in not imposing reasonable boating restrictions. We affirm.

          I. Introduction

         This is duck hunting country. The parties are adjoining landowners in Arkansas County. The Nixon property is located to the northeast of Five Forks’ property. The parties share a common boundary for a quarter-mile along Five Forks’ north line (and Nixon’s south line) and for another quarter-mile along Five Forks’ east line (and Nixon’s west line). Each property extends into the Bayou Meto Wildlife Management Area (BMWMA). Each party uses its land primarily for duck hunting. Nixon[1] gains ingress and egress to its property by traversing a road and a ditch situated across the Five Forks property. Five Forks seeks to prevent, or substantially limit, Nixon from traversing the Five Forks property. Hence, the conflict. The issue below was whether Nixon created a prescriptive easement(s) over the road and ditch as it crosses the Five Forks property.

          II. Relevant Facts

          A. Five Forks Hunting Club, LLC

          The property now known and referred to as the Five Forks property was previously and commonly known as the "Coca Cola Property" and contains approximately 480 acres in Section 28. According to Richard Metcalf, a member of Five Forks, certain individuals purchased the Coca Cola Property in 1998. Then, in February 1999, those individuals transferred ownership of the property to Five Forks.

          B. The Nixon Family Partnership

          The Nixon Family Partnership is a limited liability partnership that owns approximately 160 acres located in Section 21. According to Ruth Vanlear Nixon Light, Nixon derived title to its property through the maternal grandfather of its members, Mr. E.A. Matthews, who acquired the property in 1951. The only testimony concerning the Nixon property, the Coca Cola Property, or the relationship between the predecessors in title came from Mrs. Light who testified, "Most of what I know about the early part of the property comes from my dad [David Nixon, Sr.] and he also told us that we always had the right to use the road and the ditch." Unfortunately, David Nixon, Sr., passed away prior to this litigation. Obviously, Mrs. Light’s testimony is inconclusive as to whether the right to use the road and the ditch as it passed through the Coca Cola Property was permissive, adverse, or prescriptive. Beginning in

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1991, Nixon leased its property to John Godwin for duck hunting. Godwin later became a member of Big Coon Hunting Club (Big Coon), and Big Coon has leased the property continuously from 1994 to the present. Several witnesses from Nixon and Big Coon testified that they used the road and the ditch to gain access to the Nixon property since at least 1991.

          C. The Road and the Ditch

          A road and a parallel ditch enter the south line of the Five Forks property and then run in a diagonal northeasterly direction across the Five Forks property in Section 28 and enter the Nixon property on the south line of Section 21. The road and the ditch run generally parallel to one another, although the distance between them varies in spots from being immediately adjacent to a somewhat greater distance. Historically, and at least since 1991, as described in more detail below, Nixon has accessed its property via a combination of the road and the ditch. During dry weather, Nixon is able to drive vehicles on the road all the way across the Five Forks property and into the Nixon property. However, in wet weather, the northern portion of the road sometimes floods, which prevents Nixon from completing access to its property. Generally, when the road is flooded, the parallel ditch typically carries enough water to sustain small-boat traffic. During the times when the northern portion of the road is flooded and impassable, Nixon transfers from vehicles to boats that are stored on site in a boat shed constructed on the Five Forks property. Nixon then continues its access across the Five Forks property by boats via the ditch until it reaches the Nixon property.

          Since 1998, when Five Forks first purchased the Coca Cola Property, there have been periods of peace and harmony between Five Forks and Nixon, and there have been periods during which Five Forks made some sporadic unsuccessful attempts to obstruct Nixon’s use of the road and the ditch. Most recently in late 2014, which was the apparent instigator of this litigation, Five Forks built a bridge across the ditch that obstructed Nixon’s use.

          D. The Litigation

          On January 9, 2015, Five Forks filed suit against Nixon seeking a declaratory judgment that it has the right to control the use of the ditch, to construct and maintain the bridge across the ditch, and to enjoin Nixon and its agents and invitees from trespassing on its property by boat and from damaging the bridge. Five Forks claimed that Nixon and its invitees had only permissive access to its property, and although it admitted that the invitees had been generally cooperative in the past, Five Forks alleged that members of Big Coon have been uncooperative and disrespectful of its property rights. It further alleged that the members of Big Coon were inconsiderate and used the ditch in a manner that would "scare away ducks and otherwise interfere with the quality of the duck hunting experience." Notably, Five Forks alleged that at least one member of Big Coon had threatened to damage the bridge that Five Forks had constructed over the ditch.

         Nixon answered and filed a counterclaim seeking to establish a prescriptive easement over the ditch as well as the road across Five Forks’ property, and to require Five Forks to remove the bridge across the ditch. Nixon later amended its counterclaim to seek a preliminary injunction to require Five Forks to immediately remove the bridge and to enjoin further obstruction of the ditch. Following a December 15, 2015 hearing on Nixon’s motion

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for preliminary injunction, the court granted Nixon’s motion and preliminarily enjoined Five Forks from maintaining the bridge and authorized Nixon to remove it.[2] Nixon subsequently removed the timbers that spanned the bridge that obstructed access to the ditch.

          The case proceeded to trial in October 2016, and the circuit court considered the testimony presented at both the preliminary-injunction hearing and trial. As previously explained, because no one was alive and present to testify regarding the pre-Big Coon and Coca Cola Property period, the bulk of the testimony introduced was directed toward the use of the road and the ditch since the early 1990s.

          From the period commencing in 1991 through approximately 2005 there was conflicting evidence concerning the use of the road and the ditch. John Godwin individually leased the Nixon property for duck hunting beginning in 1991 and has continuously leased the property to the present. Mr. Godwin is now a member of Big Coon. Mr. Godwin testified that he and the members of Big Coon have continuously used the road and the ditch to access the Nixon property since 1991. He explained that they typically drive vehicles on the road all the way to the Nixon property unless the road is flooded and impassable. Mr. Godwin testified that Big Coon stores flat-bottom boats in a boat shed located on the Five Forks property, and when the road is flooded and impassable and there is enough water in the ditch, they would launch their boats and motor down the ditch to complete the passage to the Nixon property. Shane Bridgforth, a member of Big Coon, recalled using the ditch to access the Nixon property prior to the 1990s with his father when he was only a child. Mr. Bridgforth also testified that from 1994 forward, Big Coon regularly maintained the road and the ditch between the boat shed on Five Forks’ property all the way to the Nixon property line. This maintenance of the road and ditch would include, but not be limited to, providing loads of gravel for the road, grading the road with farm equipment, filling holes, and clipping undergrowth out of the ditch.

          The testimony elicited also indicated that sporadically during this period, Five Forks made some attempts to obstruct Nixon’s use of the road and the ditch. In each case, Nixon promptly removed the obstructions and continued to use the ditch and the road as it had in the past. In 2000, Five Forks was not satisfied with the inconsistent collection of water on its property. Five Forks developed a plan to create a levee system on its property to facilitate holding water to improve duck hunting. The construction required approval of the U.S. Army Corps of Engineers. The levee-system design included a levee that was to be built across the road and the ditch, which would have obstructed access to the Nixon property. Although the Corps initially issued a permit for the construction, Nixon later objected to the obstruction of the road and the ditch, and the Corps subsequently revoked the permit, halting construction. It was undisputed that a meeting was held among representatives of the Nixon family, Big Coon, and Five Forks. As a result of the meeting, Five Forks agreed to redesign the levee system to remove the levee that obstructed the road and the ditch. With that modification, Nixon withdrew its objection to the permit. In a written agreement memorializing the agreement to redesign the levee system, Five Forks acknowledged that Nixon claimed a prescriptive right to use the

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ditch; however, Five Forks also stated that it disputed such a claim, alleging that any use was merely permissive. Nevertheless, Five Forks agreed to modify the permit so that access to the road and the ditch would not be obstructed by the construction of the levee system or in any other manner.

          The next significant disagreement between the parties occurred five years later in 2005. Richard Metcalf testified on behalf of Five Forks that he wrote a letter to Nixon. The 2005 letter stated that Five Forks realized that it must provide "access [to] the Nixon property by road through the center of our property when not flooded." However, Metcalf requested that members of Big Coon alter their use of the ditch and use an alternate route through Long Pond Bayou when the road is flooded during duck season (referred to herein as the "alternate route"). Nixon rejected the request, declined to alter its use, and continued to use the ditch.

          That brings us to the period from 2005 to 2014. Metcalf testified that in 2014, Five Forks installed some piping across the ditch that blocked passage through the ditch. However, Five Forks removed the pipe after Nixon demanded that it do so. Metcalf then testified that in August 2015, Five Forks built a bridge that obstructed use of the ditch. It was this newly constructed bridge that prompted this lawsuit and was the subject of the preliminary hearing. Although there was some further testimony describing instances of various other natural obstructions of the ditch and the road that allegedly occurred between 2005 and 2014, including fallen trees and downed electrical lines, there were no specific dates provided as to when these events took place.

          It was clear from the testimony that the road and the ditch were continuously used by Nixon without any meaningful obstructions as a means of access to its property from late 2005 until 2014. In fact, Richard Metcalf, a member and partial owner of Five Forks, admitted on cross-examination that Nixon has "continuously" used the road and that they "regularly" used the ditch when it was too wet to access the Nixon property. Moreover, members of Big Coon, including John Godwin and Shane Bridgforth, testified that the character of the road and the ditch and their use had not changed since at least 1994, as the road was used for access during dry periods and the ditch was used for boat access when there was sufficient water in the ditch and the road is under water.

          Metcalf, William Wilson, and Jimmy Dill, all representatives of Five Forks, testified at trial that members of Big Coon had abused their use of the ditch by traveling unsafely and too loudly at times, scaring the ducks away. As such, they testified that if the circuit court was to grant a prescriptive easement over the ditch, such use should be restricted to require boaters to use "idle speed." However, there was no testimony that anyone had complained of those issues to Nixon or Big Coon prior to this action being filed.

          Representatives of Five Forks also presented testimony that Nixon and Big Coon had the ability to use an alternative route through Long Pond Bayou instead of using the ditch in wet weather. Bridgforth and Godwin denied using the ditch in an unsafe manner and testified that for various reasons they did not wish to use the proposed alternative route instead of the ditch.

          Each party introduced independent surveys and the testimony of their surveyors. The main difference in the two surveys is that the Five Forks survey described two narrow fifteen-foot easements; one for the road and ...

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