Edge v. Sutherland , 2015 Ark. App. 305 ( 2015 )


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                     ARKANSAS COURT OF APPEALS
                                           DIVISION II
                                          No. CV-14-1048
    
    
    LARRY EDGE and JULIUS EDGE                        Opinion Delivered   MAY 6, 2015
                        APPELLANTS
                                                      APPEAL FROM THE CLEBURNE
    V.                                                COUNTY CIRCUIT COURT
                                                      [NO. CV-13-51-4]
    
    GARRY B. SUTHERLAND and                           HONORABLE TIM WEAVER,
    BRENDA SUTHERLAND, Husband and                    JUDGE
    Wife, as Co-Trustees of the
    SUTHERLAND REVOCABLE TRUST                        AFFIRMED
    DATED July 25, 2007; KURT PHILLIPS
    and VIRGINIA PHILLIPS, Husband and
    Wife; GARRY L. SUTHERLAND and
    ANGELA SUTHERLAND, Husband and
    Wife
                                APPELLEES
    
    
    
                                KENNETH S. HIXSON, Judge
    
    
           Appellants Larry and Julius Edge (“Edge” or “Edges”) appeal the order of the Cleburne
    
    County Circuit Court that rejected their request for an easement across the lands of appellees
    
    Garry Bryant and Brenda Sutherland, as co-trustees of the Sutherland Revocable Trust dated
    
    July 25, 1997 (“Sutherland Trust” or “Bryant Sutherland”); Kurt and Virginia Phillips
    
    (“Phillips”); and Garry Lynn and Angela Sutherland (“Lynn Sutherland”). The Edges
    
    acquired an existing dedicated roadway easement to access their property from the east, but
    
    they wanted to use a different, shorter route across these neighboring properties from the
    
    south, filing suit in April 2013. The complaint alleged four counts: Count I sought quiet title
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    as to the correct location of the Edge boundary lines; Count II and Count III sought an
    
    easement by implication or, alternatively, by necessity over all appellees’ properties; and
    
    Count IV sought a prescriptive easement or ownership by adverse possession of a particular
    
    portion of land (a “gap” between the southern boundary of the Edge property and the three
    
    acres of Phillips property). After hearing evidence presented by appellants, appellees moved
    
    for directed verdict1 on all counts alleged in the complaint, which the trial court granted.
    
    This appeal followed.
    
           Appellants do not contest the dismissal of their complaint on Counts I and IV.
    
    Appellants argue that the trial court erred in granting a directed verdict and dismissing their
    
    complaint because an easement existed for the gravel drive across the Sutherland Trust and
    
    Lynn Sutherland properties and because they presented a prima facie case of easement by
    
    implication or necessity across all the intermediate lands. We hold that the trial court did not
    
    err in dismissing their complaint seeking an easement to cross all these properties. Appellants
    
    have not demonstrated trial court error. We therefore affirm.
    
           The standard of review is well settled. This case was disposed by directed verdict at
    
    the close of the plaintiffs’ case. In determining on appeal whether a directed verdict (or
    
    dismissal at a bench trial) was properly entered at the trial court level, we review the evidence
    
    in the light most favorable to the party against whom the verdict was sought and give it its
    
    highest probative value, taking into account all reasonable inferences deducible from it.
    
    Nicholson v. Simmons First Nat’l Corp., 
    312 Ark. 291
    , 
    849 S.W.2d 483
     (1993). A motion for
    
    
           1
            Because this was a bench trial, this was in actuality a motion to dismiss.
    
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    directed verdict or dismissal should be granted only if there is no substantial evidence to
    
    support a jury verdict. Deck House, Inc. v. Link, 
    98 Ark. App. 17
    , 
    249 S.W.3d 817
     (2007).
    
    In making that determination, the trial court does not engage in fact finding or determine
    
    questions of credibility. Where the evidence is such that fair-minded persons might reach
    
    different conclusions, then a fact question is presented, and dismissal or directed verdict should
    
    be reversed. Id.
    
           Appellants sought the judicial creation of an easement over land owned by three
    
    different persons or entities with the segments of the requested easements created by different
    
    judicial mechanisms. Over two segments, appellants requested an easement by implication
    
    or by necessity, over another segment an express easement by reservation in a prior deed (or
    
    by implication or necessity), and over another segment by easement by prescription (or
    
    implication or necessity). With each requested type of easement, the law requires different
    
    and distinct elements of proof.
    
           An easement by implication arises where, during unity of title, a landowner imposes
    
    an apparently permanent and obvious servitude on part of his property in favor of another part
    
    and where, at the time of a later severance of ownership, the servitude is in use and is
    
    reasonably necessary for the enjoyment of that part of the property favored by the servitude.
    
    Berry v. Moon, 
    2011 Ark. App. 781
    , 
    387 S.W.3d 306
    . In order for such an easement to be
    
    established, it must appear not only that the easement is obvious and apparently permanent
    
    but also that it is reasonably necessary for the enjoyment of the property. Id. The term
    
    “necessary” in this context means that there could be no other reasonable mode of enjoying
    
    
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    the dominant tenement without the easement. Id. The necessity for the easement must have
    
    existed at the time of the severance. Id. Further, the apparently permanent nature of the
    
    easement must be in existence at the time of common ownership. Id.
    
           An easement by necessity arises when there could be no other reasonable mode of
    
    enjoying the dominant tenement without the easement. Horton v. Taylor, 
    2012 Ark. App. 469
    , 
    422 S.W.3d 202
    . The possibility of another, although inconvenient, route to appellant’s
    
    property precludes the establishment of an easement by necessity. Id. The degree of
    
    necessity, thus, must be more than mere convenience. Id. To establish an easement by
    
    necessity, a party must prove (1) that at one time one person held title to the tracts in
    
    question; (2) that unity of title was severed by conveyance of one of the tracts; and (3) that
    
    the easement is necessary in order for the owner of the dominant tenement to use his land,
    
    with the necessity existing both at the time of the severance of title and at the time the
    
    easement is exercised. Id. An easement by necessity terminates with the cessation of the
    
    necessity that brought it into being. Sluyter v. Hale Fireworks P’ship, 
    370 Ark. 511
    , 
    262 S.W.3d 154
     (2007). The elements of easement by necessity or implication are very similar.
    
           A prescriptive easement may be gained by one not in fee possession of the land by
    
    operation of law in a manner similar to adverse possession. Owners Ass’n of Foxcroft Woods,
    
    Inc. v. Foxglen Assocs., 
    346 Ark. 354
    , 
    57 S.W.3d 187
     (2001). Like adverse possession,
    
    prescriptive easements are not favored in the law, since they necessarily work corresponding
    
    losses or forfeitures in the rights of other persons. Id. In Arkansas, it is generally required that
    
    one asserting an easement by prescription show by a preponderance of the evidence that one’s
    
    
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    use has been adverse to the true owner and under a claim of right for the statutory period.
    
    Id. Our supreme court has said that the statutory period of seven years for adverse possession
    
    applies to prescriptive easements. Id. 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.
    
    Id. Mere permissive use of an easement cannot ripen into an adverse claim without clear
    
    action, which places the owner on notice. Id. The plaintiff bears the burden to show by a
    
    preponderance of the evidence that there has been adverse, not permissive, use of the land in
    
    question. Id; see also Manitowoc Remfg., Inc. v. Vocque, 
    307 Ark. 271
    , 
    819 S.W.2d 275
     (1991).
    
           A detailed examination of the evidence presented at this bench trial is necessary to
    
    decide the issues on appeal. Julius Edge and his son Larry Edge purchased forty-five acres of
    
    rural land in March 2013 for the purpose of building a cabin on it and using the acreage for
    
    hunting. This land is in the east half of the northeast quarter of section 25, township 12
    
    north, range 9 west, in Cleburne County, situated north of Wolf Bayou Road, a paved
    
    roadway. Although appellants had been granted another route from the eastern side of their
    
    property to access Wolf Bayou Road, they wanted to access their property from the south by
    
    crossing over property owned in varying tracts by appellees.
    
           Appellee Bryant Sutherland has owned thirty-eight acres directly south of Edge for
    
    many years. Wolf Bayou Road runs adjacent to the southern boundary of Bryant Sutherland’s
    
    tract. Squeezed in between the Edges’ acreage and Bryant Sutherland’s acreage is a three-acre
    
    rectangular tract owned by appellees Kurt and Virginia Phillips. Access to the Phillips acreage
    
    is gained from a gravel drive that commences off Wolf Bayou Road and runs generally
    
    
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    northeast to the Phillips’ three-acre tract. This access is referred to herein as the “gravel
    
    drive.”
    
              This gravel drive was built by Bryant Sutherland’s predecessor in title decades ago.
    
    The gravel drive, however, crosses two different tracts of property. As the gravel drive begins
    
    off Wolf Bayou Road, the gravel drive is contained within the west half of the quarter, not
    
    the east half of the quarter. This segment that lies within the west half is referred to herein
    
    as the “southern portion” of the gravel drive. There is some evidence in the record that this
    
    southern portion of the gravel drive is on property owned by Lynn Sutherland. As this gravel
    
    drive continues northward, it crosses over to the east half of the quarter and lies within the
    
    tract owned by Bryant Sutherland. This segment that lies within the east half is referred to
    
    herein as the “northern portion” of the gravel drive.
    
              Appellees collectively were unwilling to permit the Edges to cross their lands to
    
    connect to Wolf Bayou Road. As a result, the Edges acquired the aforementioned access
    
    from the east over a thirty-foot-wide existing old road easement that had been in existence
    
    for many years, running more than a mile to another point of connection to Wolf Bayou
    
    Road. It was not ideal for the Edges, as it was rough, hilly terrain that required twice crossing
    
    a creek. Their attorney contended that this was not reasonable access to the property. This
    
    was what led to the lawsuit seeking an easement to cross the neighboring properties from the
    
    south.
    
    
    
    
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           The relief requested by appellants was a combination of at least four, and perhaps, five
    
    different easements linked together from Wolf Bayou Road to gain access to the Edge
    
    property from the south, as follows:
    
           1.      An easement by necessity or implication over land owned by Lynn Sutherland
                   over the southern portion of the gravel drive that lies within the west half of
                   the quarter; then
           2.      An easement by necessity or implication over the northern portion of the gravel
                   drive that is contained within the east half of the quarter, in the thirty-eight-
                   acre tract owned by Bryant Sutherland; then
           3.      An easement by necessity or implication over land owned by Kurt Phillips from
                   the point where the gravel drive enters the three-acre tract (approximately in
                   the middle of the tract) over to and along an alleged express easement along the
                   western boundary of the three-acre tract; then
           4.      An express easement over the western boundary of the three-acre tract owned
                   by Kurt Phillips allegedly arising from a reservation of an easement in a deed
                   between prior buyers and sellers of the three-acre tract; then
           5.      A prescriptive easement over a purported “gap” discovered by survey between
                   the northern border of the Phillips property and the southern border of the
                   Edge property (referred to hereinafter as “the gap”).
    
    These combined easements would complete the desired access route from Wolf Bayou Road
    
    to the Edge property from the south.
    
           The trial court heard extensive testimony about the usage of the gravel drive and paths
    
    from the Phillips acreage toward the property that is now owned by the Edges. It also heard
    
    testimony from Edge about the alternative access from the eastern side of the Edge acreage,
    
    whether it was sufficiently passable, and why appellants wanted the shorter, easier route. The
    
    attorneys for Bryant Sutherland, Lynn Sutherland, and Phillips moved for directed verdict on
    
    all counts. The trial court found that appellants failed to present sufficient evidence to sustain
    
    the burden of proof for easements by necessity or implication on one or more elements and
    
    directed a verdict in favor of appellees.
    
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           In reviewing the record on appeal, even if we were to hold that there were sufficient
    
    facts and inferences to survive a motion to dismiss over the segments of the requested
    
    easements other than the gravel drive, which we do not decide, there is an absence of
    
    evidence in the record concerning the unity of title regarding the gravel drive. Without an
    
    easement to use the gravel drive, the Edges cannot reach Wolf Bayou Road. Our ultimate
    
    analysis centers on that segment.
    
           Nowhere in appellants’ complaint is there an allegation that a prescriptive easement
    
    was sought or that an express or dedicated easement already existed across the gravel drive.
    
    The only allegation regarding the gravel drive in the complaint was that an easement by
    
    implication or by necessity2 should be granted. As stated, the ownership of the property over
    
    which the gravel drive exists is divided. The southern portion of the gravel drive is contained
    
    within the western half of the quarter, and the northern portion of the gravel drive is
    
    contained within the eastern half of the quarter. The first essential element of an easement
    
    by necessity or an easement by implication is unity of title. Appellants failed to introduce into
    
    evidence a warranty deed or any other type of deed concerning the ownership of the southern
    
    portion of the gravel drive, the dates of ownership, and whether there was at any time unity
    
    of title to the entirety of the gravel drive and unity of title with the forty-five-acre Edge
    
    property. Even giving appellants the benefit of any reasonable inference, the only evidence
    
    in the record concerning the ownership of the southern portion of the gravel drive was Bryant
    
    
           2
            The Edges’ attorney argued to the trial judge in opposition to a directed verdict that
    “our easement by necessity is what comes across the Sutherlands. That lower portion. That
    gravel road.”
    
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    Sutherland’s testimony that his son Lynn Sutherland currently “owns the gravel driveway.”
    
    Without this element of unity of title, an easement by necessity or implication fails. A failure
    
    of this aspect of the complaint rendered useless any further easement, as it negates the very
    
    remedy sought—this particular access route from Wolf Bayou Road to the Edge property.
    
           We affirm.
    
           KINARD and GLOVER, JJ., agree.
    
           Grayson & Grayson, P.A., by: Keith L. Grayson and Melanie L. Grayson, for appellants.
    
           Murphy, Thompson, Arnold, Skinner & Castleberry, by: Blair Arnold;
           Blair & Stroud, by: Robert D. Stroud and Barrett S. Moore, for appellees.
    
    
    
    
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