Lonoke County, Arkansas, Through the Lonoke County Court and the County Judge of Lonoke County, Individually and Together v. Larry Nipper and Kathryn Nipper , 2022 Ark. App. 304 ( 2022 )

Cite as 2022 Ark. App. 304ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-284
LONOKE COUNTY, ARKANSAS, Opinion Delivered August 31, 2022
THROUGH THE LONOKE COUNTY
COURT AND THE COUNTY JUDGE APPEAL FROM THE LONOKE
OF LONOKE COUNTY, COUNTY CIRCUIT COURT
INDIVIDUALLY AND TOGETHER [NO. 43CV-19-975]
APPELLANT
HONORABLE DAVID N. LASER,
V. JUDGE
REVERSED AND REMANDED;
LARRY NIPPER AND KATHRYN DISMISSED AS MOOT IN PART
NIPPER
APPELLEES
STEPHANIE POTTER BARRETT, Judge
This appeal involves real property known as Salem Cut Road (hereinafter, “Salem
Road”) located in Lonoke County. On appeal, Lonoke County argues the circuit court (1)
erred in granting summary judgment in favor of appellees Kathryn and Larry Nipper; and
(2) erred in denying its motions for partial dismissal and motion for summary judgment. We
hold there are genuine issues of material fact and reverse and remand the circuit court’s
order granting summary judgment in favor of the Nippers, and we remand for further
proceedings consistent with this opinion.
On September 2, 1987, real property that contains Salem Road was conveyed by
warranty deed from E.A. and Rothie May Nipper to appellees Larry and Kathryn Nipper
(hereinafter, “the Nippers”). On June 25, 2019, the Nippers received a letter from Doug
Erwin, Lonoke County judge, informing them they had thirty days to remove fencing that
was encroaching on the Bethlehem Road right-of-way or legal action would be taken. The
Nippers responded to Judge Erwin’s letter on July 23, stating they believed the fencing is on
the private road, not Bethlehem Road and requested proof that the road in question is a
county road. In response, the county judge provided the Nippers a record of county
maintenance done on Salem Road since March 17, 2017, which reflected that gravel had
been placed on the road in 2019. The county judge additionally indicated there were county
employees who predated his tenure that could attest to continuous maintenance of the road
throughout the years.
On September 4, 2019, the Nippers received a letter from Judge Erwin stating he
inadvertently referred to Salem Road as Bethlehem Road in his previous correspondence.
He indicated that Salem Road had been identified as a county road that had been open and
used by the public since at least the early 1900s and that it had been long established as a
public roadway by public-use prescription and the county maintained adverse possession.
Judge Erwin stated to the Nippers that the fencing and any obstructions must be removed
within ten days, or it would be removed by the county.
On September 16, 2019, Judge Erwin, citing Ark. Code Ann. § 14-14-1102(b)(1)(A)(i)
(Repl. 1998), entered an order declaring Salem Road a public road by a public-prescriptive
easement as the Lonoke County Road Department had maintained the road for a period
well in excess of seven years. The Nippers filed a complaint in the Lonoke County Circuit
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Court on November 13, 2019, alleging the county erred by declaring Salem Road a public
road, that the county cannot obtain rights to the “ditches” adjacent to Salem Road by
prescriptive easement, that this was an unconstitutional taking under the Arkansas
Constitution, article 2, section 22, that the order was in violation of Arkansas law, and the
order was unconstitutionally vague.
Lonoke County filed an answer to the Nippers’ complaint and notice of appeal and
petition for judicial review on December 16, 2019, alleging that Salem Road is, and has been,
a public road. Additionally, Lonoke County filed a motion for partial dismissal alleging the
Nippers’ constitutional taking claim is not actionable because the circuit court does not have
subject-matter jurisdiction over the matter, unless and until the Nippers exhaust adequate
remedies available by law. The Nippers filed a response to the motion for partial dismissal,
asserting that the only remedy available to them was to appeal the order declaring Salem
Road a public road because they could not obtain just compensation for their land due to
the fact that it was taken by prescriptive easement.
On February 6, 2020, the Nippers filed a motion for summary judgment alleging that
neither the public nor the county had acquired a prescriptive easement to Salem Road or
the adjacent ditches. The Nippers attached Larry Nipper’s affidavit wherein he stated that
the county did not maintain the road, nor did the public continuously use the road until
2014 at the earliest. The Nippers argued that there could be no prescriptive easement because
seven years had not elapsed prior to the county court’s September 16, 2019 order declaring
Salem Road a public road.
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On February 27, 2020, Lonoke County responded to the motion for summary
judgment and asked for an extension of time to conduct discovery prior to a ruling on the
motion, and in the alternative, argued that it was entitled to summary judgment as a matter
of law due to “the ample proof” that Salem Road is a public road and because the conveying
deed expressly recognized the public and open nature of the road. In addition, Lonoke
County argued that the Nippers’ motion for summary judgment should be denied. Lonoke
County attached ten affidavits to its response that averred Salem Road was a public road and
had been maintained by the county for 150 years.
On March 23, 2021, the circuit court entered an order and judgment granting the
Nippers’ motion for summary judgment, finding that Salem Road is a private road belonging
to the Nippers. Additionally, the circuit court vacated the September 16, 2019 order
declaring Salem Road a public road and also denied Lonoke County’s motion for summary
judgment and motion for partial dismissal.
In its findings of fact, the circuit court focused heavily on the documentation
provided by the Nippers, which traced the property’s chain of title to its original conveyance
from the United States in 1821. The circuit court found that Lonoke County failed to
present any evidence that title to any portion of Salem Road was ever transferred to the
county. The circuit court noted the “County Maintenance Ends” sign that was put up at the
entrance until at least July 2014 and found that until July 14, 2014, Salem Road was “an
unmaintained single lane dirt road.” The circuit court found that the maintenance records
provided to the court, showed, at most, that Salem Road had been graded several times since
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March 17, 2017, and that gravel had been placed on the road in 2019. The circuit court
also found that Lonoke County had failed to provide any evidence other than maintenance
records to show any grading took place prior to March 17 and failed to provide evidence that
the ditches were also maintained. The circuit court found that none of the evidence
submitted by Lonoke County supported its position that either the public or Lonoke County
had acquired a prescriptive easement to Salem Road but that the Nippers did show
documentation establishing a clear chain of title for the property. The circuit court also
found that Lonoke County failed to meet the requirements of adverse possession: (1) no
evidence the public used Salem Road as a throughfare for a period of seven years or more;
(2) no evidence the public used Salem Road in a notorious, adverse, or under a claim of right
for a period of seven years or more; (3) no evidence Lonoke County maintained Salem Road
for the seven years prior to this lawsuit; (4) and no evidence that Lonoke County has
maintained the adjacent ditches. In conclusion, in weighing the evidence, the circuit court
found that Lonoke County did not present sufficient evidence to create a genuine issue of
material fact regarding whether it had acquired any legal rights to any portion of Salem
Road. In its conclusions of law, the circuit court found that Lonoke County improperly
took the Nippers’ property by declaring a public road through prescriptive easement. The
circuit court vacated the September 16 order, found that the circuit court has jurisdiction
over the Nippers’ constitutional takings claim as it is their only adequate remedy available;
found the Nippers ineligible for just compensation of property taken by a prescriptive
easement; and declared Salem Road a private road “owned by them and them alone.”
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Summary judgment is to be granted by a circuit court only when it is clear there are
no genuine issues of material fact to be litigated and the moving party is entitled to judgment
as a matter of law. Bugg v. Honey, 2021 Ark. App. 393, 636 S.W.3d 359. On appeal, we
determine if summary judgment was appropriate by deciding whether the evidentiary items
presented by the moving party in support of its motion leave a material fact unanswered. Id.We view the evidence in the light most favorable to the party against whom the motion was
filed, resolving all doubts and inferences against the moving party. Id.Summary judgment is not proper, however, when evidence reveals aspects from which
inconsistent hypotheses might reasonably be drawn and reasonable minds might differ.
Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). The object of summary
judgment is not to try the issues but to determine whether there are any issues to be tried.
Id. When there are genuine questions of material fact with regard to a party’s intent,
summary judgment is improper. Bugg, 2021 Ark. App. 293, 636 S.W.3d 359.
Lonoke County argues that the circuit court erred in granting the Nippers’ motion
for summary judgment because there were genuine issues of material fact present that
precluded summary judgment. We agree. The warranty deed contained the following
statement: “Grantors further convey the land located in the old Bethlehem road in the event
the said road is closed.” The warranty deed, along with the ten affidavits and other matters
before the court provided by Lonoke County––when contrasted with the Nippers’ affidavit
and evidence––created a genuine issue of material fact with respect to the public or private
nature of the road.
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The affidavits supported Lonoke County’s argument that Salem Road had, in fact,
been a public road by way of prescription for many years. The determination of whether the
use of a roadway is adverse or permissive is a question of fact. Johnson v. Jones, 64 Ark. App.
20, 977 S.W.2d 903 (1998). Where there is usage of a passageway over land, whether it be
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. Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Moreover,
in Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984), the supreme court held that a
public prescriptive right-of-way can be established by the county working the road for a period
of seven years. The affidavits presented by Lonoke County contained sworn testimony from
road department employees stating they had maintained Salem Road for many years—far
more than seven. Lonoke County also presented affidavits from local residents stating that
the public had continuously used Salem Road for a period of far more than seven years. The
affidavits presented by Lonoke County present a genuine issue of material fact regarding the
length of time and the circumstances under which Salem Road was opened, maintained, and
used. Viewing the evidence and all reasonable inferences to be drawn from that evidence in
the light most favorable to Lonoke County, we hold there are genuine issues of material fact
present and reverse the circuit court’s order granting summary judgment in favor of the
Nippers.
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Lonoke County next argues that the circuit court erred in denying its motion for
summary judgment and motion for partial dismissal because the circuit court did not have
jurisdiction to hear the Nippers’ “takings” claim.
On December 16, 2019, Lonoke County filed a motion for partial dismissal on the
basis that the Nippers’ complaint for unconstitutional taking is not actionable because the
circuit court lacked subject-matter jurisdiction. We conclude that this is a moot point
because in no event will the Nippers be entitled to any compensation for a taking. This was
correctly set forth in the circuit court’s order wherein the circuit court stated that it would
be inappropriate for the Nippers to assert a claim for just compensation because the Nippers
cannot receive compensation for property taken through prescriptive easement. The
supreme court in Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984), held that when
property is acquired through a prescriptive easement, the property owner is not entitled to
just compensation. The issue to be decided on remand is whether Salem Road is the
Nippers’ private road or whether the county has established a public prescriptive easement
over the road, and in neither event will an unconstitutional taking have occurred or
compensation be owing.
Not only did Lonoke County respond to the Nippers’ motion for summary judgment,
on February 27, 2020, Lonoke County also filed its own motion claiming it was entitled to
summary judgment because the underlying deed expressly declined to convey Salem Road to
the Nippers. Lonoke County asserted that there were no genuine issues of material fact in
dispute and that Lonoke County––not the Nippers––was entitled to summary judgment.
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Again, while the language in the deed relied on by Lonoke County constitutes some evidence
of the nature of Salem Road, that language is not dispositive of the controversy as a matter
of law, and there is a genuine issue of material fact regarding the public or private nature of
Salem Road.
In conclusion, we reverse the grant of summary judgment in favor of the Nippers
because there are genuine issues of material fact to be decided, and we remand for further
proceedings consistent with this opinion.
Reversed and remanded; dismissed as moot in part.
KLAPPENBACH and HIXSON , JJ., agree.
Jason Owens Law Firm, P.A., by: Jason E. Owens, for appellant.
Quattlebaum, Grooms & Tull PLLC, by: Michael N. Shannon and S. Katie Calvert, for
appellees.
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