Fields v. Ginger , 54 Ark. App. 216 ( 1996 )

Judith Rogers, Judge.

Appellants appeal from an order granting appellees a nonexclusive easement by prescription in a driveway and also quieting tide in appellees to the strip of land lying south of the driveway. On appeal, appellants contend that both findings made by the chancellor are clearly against the preponderance of the evidence. Finding no error in the chancellor’s decision, we affirm.

The parties are adjacent landowners. The property they now own was once part of a single, thirteen-acre tract owned by Bill and Mary Harris. The Harrises lived in a home which was situated on the southern two acres, which was separated from the rest of the property by a fence. The entire tract was bordered on the west by Highway 71. When the Harrises purchased the property, access to the home was gained by a circular driveway off a tin-horn from Highway 71. Mr. Harris later constructed an “L” shaped road across the property from Highway 71 to what is known as Commission Road. The road was placed south and parallel to the fence mentioned above, running in an easterly direction from the highway. At a point just beyond the house, the road makes a ninety-degree turn to the north, crosses the fence line and continues until it intersects Commission Road. Mr. Harris put in a gate where the road crossed the fence and placed a lock on it. Mr. Harris also built a concrete pad connecting the road and the home. The driveway in question is that part of the road as it runs from Highway 71 to the house. Grass was allowed to grow over the original circular driveway.

In 1978, the Harrises sold the home and two acres to Harlan and Myra York. In dividing the property, the Harrises retained tide to the driveway with the location of the property line being some six feet south of the drive. After the sale, the Harrises rented the home from the Yorks for a year while they built their own home on the northern part of the property, including a separate driveway. During this time, Mr. Harris put in curbs and gutters along the driveway. The Yorks lived in the home and used the drive as the sole access to their property from 1979 to 1986, when the house was sold to the appellees, William and Sharon Ginger. Meanwhile, the Harrises divorced, and Mr. Harris later died in 1990. The Harrises’ home was then occupied by their daughter and her husband, Larry and Lynette Denton. Appellants, Eugene and Glenda Fields, bought the northern tract from Mr. Harris’s heirs in December of 1991.

Appellees received correspondence from appellant’s attorney in June of 1992 informing them that appellants considered appellee’s use of the drive as being permissive. In August of 1992, appellant’s attorney wrote another letter informing appellees that the appellant’s “future plans for the property are such that it is probable that [appellants] will be closing the driveway.” That same month, appel-lees filed this lawsuit claiming that they had acquired a prescriptive easement in the driveway. Appellees also contended that they had acquired the property south of the fence by adverse possession. The chancellor found that appellees had established their right to a permanent, nonexclusive easement by prescription in the driveway. The chancellor further determined that appellees had acquired the strip of land south of the driveway by adverse possession, but that appellees had failed to establish their claim to the property north of the drive to the fence. In his decision, the chancellor found that appellees had established their adverse claims by tacking their possession onto that of the Yorks.

Appellants first contend that the chancellor erred in finding that appellees had acquired a prescriptive easement in the driveway. Although we review chancery cases de novo, we will not reverse a chancellor’s findings unless they are clearly against the preponderance of the evidence, or clearly erroneous. Hutter v. Medlock, 29 Ark. App. 122, 777 S.W.2d 869 (1989).

Myra York testified that the property was not surveyed when she and her husband bought the house from the Harrises in 1978. She said that she believed that everything south of the fence was theirs and that she assumed that the driveway went with the house because there was no other access to the home. She further testified that Mr. Harris told them that the driveway was theirs, saying, “It’s your drive.” She related that Mr. Harris used the driveway to move equipment to his property and that she did not object to his use of the road. She said that they always got along well and never had any problems with each other. Mrs. York also stated that the Harrises had their own driveway and did not use the drive in question on a regular basis.

Mary Harris related that she and Mr. Harris were divorced in 1986 but that they had dated each other after the divorce until his death in 1990. She testified that when they sold the house to the Yorks they intended to keep the road and property south of the fence for future development. She testified, however, that Mr. Harris told her that “Before seven years is up we’ve got to sell part of this road to the Yorks or dedicate it to the county.” Mrs. Harris later acknowledged that Mr. Harris was “definitely aware” that the Yorks could claim the drive by adverse possession after a seven-year period and she said that, sometime before she left in 1986, he asked her not to let him forget to do something about it. She said that she was not aware that he had done anything while they were married or during the time that they dated one another.

Appellee William Ginger testified that, at the time of his purchase of the property in 1986, he drove with the realtor up the drive, which was the only means of getting to the house. He said that he saw the fence to the left of the drive and observed that the house was enclosed by fences on all but the western boundary, and he said that he assumed that the area south of the fence, including the driveway, was part of the property he was purchasing. He said that he had used the drive for access to his home since he had bought the house, just as his predecessors in tide had done.

Mr. Ginger recalled that Highway 71 was widened to four lanes in 1989. He said that Mr. Harris sought his cooperation in having the road dedicated to the county so that a left-hand turn lane for access to the drive could be placed on Highway 71. Mr. Ginger understood that a turnout could not be constructed for a private road, and he was amenable to the idea thinking it beneficial because it would increase the value of his property and also reduce the risk of having an accident. Ginger said that Mr. Harris also asked him to pay for paving his portion of the road. Ginger stated that the turn lane was built and a stop sign was placed at the opening of the drive by the county. He revealed that, during his discussions with Mr. Harris, a question arose as to who owned the road. Ginger said that he had believed the road was his and he looked at the survey, which had been done at the time he bought the property, and discovered that the Harris’s owned the road. He further testified that Mr. Harris had used the road sparingly prior to the placement of the turn lane but that afterwards his use of the road became more frequent. Mr. Ginger said that he did not object because as far as he was concerned the road had been dedicated to the county. He felt that this belief was confirmed when Mr. Harris’s daughter and her husband, the Dentons, asked him for permission to relocate their mailboxes onto the road, since the Post Office would not allow mailboxes to be placed on a private drive. He also said that the Dentons asked him for permission to name the road Dakota Drive, after their son, and for the road to be included in the 911 system, both of which were accomplished.

There was testimony that, although the county treated the drive as a county road, its dedication had never been formally accepted and that it was not, in fact, a county road.

An individual asserting an easement by prescription has the burden of proof to show by a preponderance of the evidence that use of the roadway has been adverse to the owner and his predecessors in title under claim of right for the statutory period. Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). In contesting the chancellor’s decision, appellants contend that the Yorks’ and the Gingers’ use of the drive was permissive and did not ripen into an adverse right. In so arguing, appellants, as well as the dissent, rely on the familiar rule of law spoken of in the decision of Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991), where it is said:

Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice.

Id. at 275-276, 819 S.W.2d at 278 (citations omitted). However, appellants and the dissent fail to acknowledge that the supreme court has long recognized a variation in the general rule. In Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954), the court, after reviewing the leading decisions in Arkansas concerning prescriptive rights, stated the exception to the rule as follows:

A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.

Id. at 446, 266 S.W.2d at 283. One of the cases discussed and quoted at length by the court in Fullenmder was McGill v. Miller, 172 Ark. 390, 288 S.W 932 (1926), a case factually similar to the one at bar. There, the court affirmed the chancellor’s grant of a prescriptive easement in an alley to owners of adjoining property. The court said:

It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation.

It is true that the testimony of McGill establishes the fact that, after he became the owner of the property in 1910, the alley was frequently used, but that there was an embankment at the mouth of the alley, so that it was difficult to use it; and he also testified that one of his neighbors asked permission to dig down the alley and use it for the purpose of hauling manure. He stated that he agreed for his neighbor to so use the alley, but his own testimony shows that the alley was open and plainly marked prior to that time, and was occasionally used. His testimony is not sufficient to show that, prior to that time, during the years that the alley had been open, the use of it had merely been permissive, nor that those who used the alley after he acquired the property did so merely by permission.

We give full recognition to the principle of law established by the numerous decisions cited in the brief of appellants, to the effect that a permissive use cannot ripen into a legal right merely by the lapse of time, but we think that the evidence is sufficient to show that this use was made of the alley as a matter of right and in hostility to the right of the original landowner to close the strip and prevent its use. The open way was for the especial benefit of the owners of adjoining property, and is the only convenient access that they have to their properties, and this confers upon them such special right as enables them to maintain a suit to prevent an obstruction. We think that the chancellor was correct in holding that there was an easement for the use of the alley, and that neither McGill or Todd had the legal right to close it.

Id. at 394, 288 S.W. at 934. Given the principles upon which the McGill court based its opinion, it was not critical to the decision that there was no evidence of overt activity on the part of the adverse users alerting the owner of their adverse claim. Indeed, this was one of the complaints asserted in the dissenting opinion. See also Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971).

In Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981), we rejected the notion that it was necessary in all cases that persons claiming a prescriptive easement must openly communicate their intention to use the road adversely before a permissive use can ripen into an adverse right. Relying on Fullenwider v. Kitchens, supra, and McGill v. Miller, supra, we recognized that the length of time and the circumstances under which the roadway was opened and used is sufficient to establish an adverse claim, when those circumstances indicate that the true owner knew or should have known that the road was being used adversely. See also White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992).

The determination of whether the use of a roadway is adverse or permissive presents a question of fact. Wallner v. Johnson, supra. In the case under consideration, it was shown that the driveway was the only means of access to the home. A review of the testimony reveals that, based on the location of the drive, both the Yorks and the Gingers assumed that they owned the driveway, with the Yorks’ belief being based in large part on Mr. Harris’s representation that the driveway was theirs. The testimony taken as a whole thus strongly indicates that their use of the drive was under a claim of right, as was found by the chancellor. It was also firmly established that Mr. Harris had actual knowledge of their adverse use of the road and, despite that knowledge, he never denied them access to the drive. We also regard as significant the testimony that Mr. Harris sought permission from Mr. Ginger in the effort to dedicate the road to the county, as well as the testimony that he asked Mr. Ginger to contribute to the cost of paving the road. Given the circumstances of this case, we cannot say that the chancellor’s decision is clearly against the preponderance of the evidence, or that it is contrary to settled law.

On this point, appellants further argue that the chancellor erred in failing to limit the purposes for which appellants can use the road. This issue was not raised at trial and we decline to address it for the first time on appeal. Barr v. Ark. Blue Cross, 297 Ark. 262, 761 S.W.2d 174 (1988).

Appellants next argue that the chancellor erred in finding that appellees and their predecessors in tide had adversely possessed the strip of land south of the driveway because of Mrs. Harris’s testimony that she planted a row of trees there which she watered and tended on a regular basis until 1986. However, there was conflicting evidence as to who maintained this strip of property. Appellees presented testimony that the Yorks and those hired by them mowed the strip, and Mr. Ginger testified he was the only one who mowed the strip from the time he bought the property until the appellants requested that he stop doing so in 1992. There was also evidence that an electric light pole was located on the strip prior to the Gingers’ purchase of the property. It was said that the switch for the light was inside the Gingers’ house and that they paid for the electricity to the pole. As with the first issue, we cannot say that the chancellor’s decision is clearly against the preponderance of the evidence.

Affirmed.

Jennings, C.J., and Cooper, Robbins and Mayfield, JJ., agree. Griffen, J., dissents.