Crowder Land Company, LLC Estate of Kenneth E. Pace Grayson Land & Timber Company, Lp Atwl Resources, LLP Bavarian Timber 2015, LLC Twin Creeks Timber, LLC Roydell B. Osteen And Katherine Bruillette v. Charles Payne and Edna Payne , 2022 Ark. App. 467 ( 2022 )

Cite as 2022 Ark. App. 467ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-523
CROWDER LAND COMPANY, LLC; Opinion Delivered November 16, 2022
ESTATE OF KENNETH E. PACE;
GRAYSON LAND & TIMBER APPEAL FROM THE OUACHITA
COMPANY, LP; ATWL RESOURCES, COUNTY CIRCUIT COURT
LLP; BAVARIAN TIMBER 2015, LLC; [NO. 52CV-19-146]
TWIN CREEKS TIMBER, LLC;
ROYDELL B. OSTEEN; AND HONORABLE SPENCER G.
KATHERINE BRUILLETTE SINGLETON, JUDGE
APPELLANTS
V.
CHARLES PAYNE AND EDNA PAYNE
AFFIRMED IN PART; REVERSED IN
APPELLEES PART
N. MARK KLAPPENBACH, Judge
Appellants appeal the Ouachita County Circuit Court order granting them a
prescriptive easement to traverse two logging roads that run across the lands of appellees,
Edna and Charles Payne.1 All of the properties involved are primarily used for timber
investment and recreational hunting. The circuit court’s grant of the easement is not at issue
1
The plaintiffs included in the judgment are Crowder Land Company, LLC; Kenneth
E. Pace; White Timber Company, LP; Grayson Land & Timber Company, LP Roger Guy
Smith; HGH Timber, LLC; ATWL Resources, LLC; Bavarian Timber 2015, LLC; Twin
Creeks Timber, LLC; Braxton Tatum, Jr.; Roydell B. Osteen; and Katherine Buillette. The
notice of appeal was filed by Crowder Land Company, LLC; Estate of Kenneth E. Pace;
Grayson Land & Timber Company, LP; ATWL Resources, LLC; Bavarian Timber 2015,
LLC; Twin Creeks Timber, LLC; Roydell B. Osteen; and Katherine Bruillette.
on appeal. Appellants contend that the circuit court clearly erred by (1) permitting appellees
the right to install a locked gate across the road easements and (2) restricting entry and use
of the road easements by any of appellants’ hunting lessees without permission of appellees.
We affirm in part and reverse in part.
Appellants own acreage that is landlocked and inaccessible to a public roadway unless
traversed by old logging roads—one called the “North Road” and the other called the “South
Road.”2 The logging roads were used for years without interruption. In December 2015,
the Paynes purchased approximately 110 acres of unimproved timberland in the area. The
Paynes improved their property by building a pond, building a shop with living quarters, and
providing for utilities including a water well. At some point, the Paynes placed obstructions
on the North and South Roads where those roads intersected their property. This led to the
lawsuit filed by appellants in 2019 seeking an easement by prescription or, alternatively, by
necessity to use both roads.
At trial, the circuit court found that the South Road had been used by appellants or
their predecessors dating back to 1969 and that the North Road had been used to access
their acreage dating back to 1990. The roads were used over the years to harvest timber, to
inspect the various properties, to maintain boundary markings, and to treat the timber.
When used to harvest timber, appellants or their agents added gravel to the roads, pulled up
2
Two of the landowners each own forty acres located to the north of the Paynes’ land
and are landlocked but for the use of the existing “North Road.” The remaining landowners
collectively own approximately 620 acres of timberland to the south of the Paynes’ land; they
are landlocked but for the use of the existing “South Road.”
2
ditches, cleared obstructions, and traversed the roads with logging equipment and log trucks.
The Paynes’ predecessors in title did not give permission to use the roads; people simply used
the roads. Appellants had also used their land for hunting or leased their property to others
for use in hunting. One witness testified about having a hunting lease and acquiring
permission to use the roads from the Paynes’ predecessors in title, but once the Paynes
became the owners, they denied him permission to use the roads.
The circuit court found that appellants had established a prescriptive easement to use
the North and South Roads over the Paynes’ property. The circuit court noted that the
appellants had collectively used the roads for decades in a manner that was open, notorious,
and sufficiently adverse to put the Paynes and their predecessors in title on notice of that
use. The circuit court permitted a twenty-five-foot-wide roadway for reasonable use and
reasonable maintenance of the prescriptive easement. Appellants were required to repair
any damage to the roads. The Paynes were permitted to install a locked gate “to prevent
public access” to the roads and to install “no trespassing” signs or paint. The court required
that any lock be a combination lock with the combination provided to all appellants, their
heirs, their assigns, and their contractors.
Appellants were permitted to use the roads for enjoyment of their property, including
to visit or inspect their property and to manage or harvest the timber on it. Appellants were
permitted to have their contractors use the roads. Appellants and their families were
permitted to use the roads for hunting purposes. The circuit court, however, restricted the
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use of the roads by any of appellants’ hunting lessees, requiring that the hunters first gain
the Paynes’ permission to use the roads for that purpose.
Appellants paid for a subsequent survey to establish the metes and bounds of the
roadway easement, which the circuit court accepted, and the remaining claims were denied,
dismissed, or abandoned on appeal. Appellants appealed.3 The Paynes did not cross-appeal.
No one disputes that the circuit court correctly granted the prescriptive easement. It
is the scope of the easement that brings this appeal. Appellants first argue that the circuit
court clearly erred in giving the Paynes permission to install locked gates to access the roads.
Appellants have not demonstrated reversible error. At the end of the bench trial, in response
to the circuit court’s question of what appellants wanted the court to do, appellants’ attorney
said that his clients were “not opposed to a gated road” so long as each appellant “can
maintain their own lock” and “can control their own access,” expressing concern about the
problems that could be presented by using keyed locks. Thus, appellants acknowledged that
so long as they would have access to the roads, a locked gate would be a reasonable measure.
The circuit court accommodated that concern in the order by permitting the Paynes to install
gates with combination locks, provided that the combinations would be shared with
appellants, their heirs and assigns, and their contractors. Given the statements that
3
The Paynes filed a motion to dismiss appellants’ appeal before its submission to our
court. We denied that motion on February 2, 2022. To the extent that the Paynes reassert
those arguments in their appellate brief, we again reject them.
4
appellants’ counsel made directly to the circuit court’s query of what the appellants wanted
the court to do, we can find no reversible error in this point.4
Appellants’ second point on appeal concerns the order’s prohibition of road use by
any of appellants’ hunting lessees without obtaining permission from the Paynes. The Paynes
very candidly admit that this part of the circuit court’s order “is more problematic.” This
court reviews equity matters de novo on the record but will not reverse a finding of the lower
court unless it is clearly erroneous. Five Forks Hunting Club, LLC v. Nixon Fam. P’ship, 2019
Ark. App. 371, 584 S.W.3d 685. The hunting-lessee restriction is too burdensome on the
prescriptive easement granted to appellants, so we hold that on this provision, the circuit
court clearly erred.
Both the creation and extent of an easement by prescription are determined by the
adverse use of the property over a long period of time. Five Forks Hunting Club, LLC, 2019
Ark. App. 371, 584 S.W.3d 685 (affirming prescriptive easement and circuit court’s finding
that route and manner of use of the easement could not be altered from the use established
by Nixon and its lessees). As the extent of the easement becomes more difficult to discover,
the relations between the owner and the possessor of the servient estate become increasingly
subject to the governing principle that neither shall unreasonably interfere with the rights of
the other. Jordan v. Guinn, 253 Ark. 315, 321, 485 S.W.2d 715, 720 (1972). Randy Brown,
4
Also, appellants are responsible for repairing damage to the roads, so preventing
public access would protect appellants’ interest by lessening the opportunity for unnecessary
damage.
5
one of appellants’ hunting lessees, testified that he and “gobs of people” had used the roads
for decades to hunt under their hunting leases. Brown had been leasing hunt property for
thirty-one years and had always used those roads. Brown recalled that Roy Edmonson,
Cypress Creek, and his niece and her husband hunted and used those roads. Generally, the
right to use the easement passes with the transfer of a leasehold interest, such as a hunting
lease, whether mentioned in the instrument of transfer or not and may not be interfered
with by the servient estate. See Carver v. Jones, 28 Ark. App. 288, 294, 773 S.W.2d 842, 846
(1989). The right to hunt and fish, technically known as a profit à prendre, or a qualified
ownership, in the land for limited purpose of hunting and fishing, is a valuable and well-
recognized right and may be transferred between individuals separately from the land itself.
See Nelson v. State, 318 Ark. 146, 152, 883 S.W.2d 839, 842 (1994). We reverse the circuit
court order to the extent that it requires appellants’ third-party hunting lessees to obtain
permission from the Paynes to use the North Road and the South Road.
Affirmed in part; reversed in part.
GRUBER and BROWN, JJ., agree.
Harrell & Lindsey, P.A., by: Paul E. Lindsey, for appellants.
David P. Price; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
appellees.
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