ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

THOMAS BEYER and DAMITA BEYER,

APPELLANTS

V.

WOODRIDGE LAND CO., INC.,

APPELLEE

CA00-769

MARCH 7, 2001

APPEAL FROM THE BENTON COUNTY CHANCERY COURT,

NO. E99-736-1,

HON. OLIVER LEE ADAMS, JR.,

CHANCELLOR

AFFIRMED

Appellants, Thomas and Damita Beyer, appearing pro se, appeal a decision of the Benton County Chancery Court that ordered them to remove fences they had constructed on their land in the Ashmore Creek Subdivision. The appellees, Woodridge Land Company, developer of the subdivision, and Cordell Schmidt, the company's president, are collectively referred to herein as Woodridge. The Beyers contend (1) that the chancellor erred in his decision to place restrictions on unrestricted easements, thereby violating Ark. Code Ann. § 18-12-103; and (2) that the chancellor erred in his decision to grant the use of the Beyers' easement to a corporation, thereby violating Article 12 Section 9 of the Constitution of Arkansas. We find no error and affirm.

On March 15, 1996, appellees filed with the recorder of Benton County protective covenants and restrictions covering the Ashmore Creek Subdivision. On January 16, 1998, the Beyers purchased Tract 18 in the subdivision. Their warranty deed from Woodridge sets

forth the metes-and-bounds description of the tract and contains the following language:

[The conveyance is] subject to a 50 foot ingress, egress, and utility easements being centered along the north, east, and west property boundaries, subject to and benefitting from a 50 foot minimum width easement for ingress, egress, and utilities (survey plat record 31-18). Providing access to Highway 62, part of said easement being centered on the NE property boundary, and subject to a 15 foot water easement being centered on the south property line.

On April 22, 1999, Woodridge filed a petition against the Beyers in the Benton County Chancery Court seeking to enforce the protective covenants and requesting a preliminary injunction. In an order filed May 22, 1999, the chancellor dismissed the petition with regard to covenant violations, denied the request for injunction, and restrained and enjoined the Beyers from interfering with Woodridge's free and unrestricted use of the public roadways shown on the recorded plat of Ashmore Creek and the other tracts within the subdivision. On February 2, 2000, Woodridge filed a petition for contempt, alleging that the Beyers had violated the court's order by constructing a fence down the middle of platted rights-of-way and a platted utility easement existing on Tract 18. Following a hearing, the chancellor found that the fence the Beyers constructed interfered with Woodridge's free and unrestricted use of the easements for their designated purposes. The Beyers were ordered to remove the fence within twenty days, and, if the fence should not be removed within that time, Woodridge was authorized to remove the fence without obligation to reconstruct it or to preserve the fencing material.

Whether the chancellor erred in his decision to place restrictions on unrestricted easements, and in so doing violated Ark. Code Ann. § 18-12-103

Arkansas Code Annotated section 18-12-103 (1987) reads as follows:

Restrictive covenants

No restrictive or protective covenants affecting the use of real property nor any instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive or protective covenants or instrument purporting to restrict the use of the real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.

The Beyers seem to argue that fences they erected did not unreasonably interfere with rights of ingress and egress; that if the easements were designated for road building, appellees should have built the roads around appellants' fences; that appellee had no right to build roads on the easements; and that the warranty deed granted an easement only to appellants, with vehicular use of the easement not being a necessary means of ingress and egress. In their brief, the Beyers refer to various Arkansas cases that they contend support their position that the chancellor violated the restrictive-covenants statute. In response, Woodridge contends that the chancellor did not place restrictions on unrestricted easements in violation of the statute, but enforced the language creating the easements on the Beyers' property; and that the chancellor was correct in restricting them from placing fences and other obstructions within the easements.

We do not find that the cases relied upon by the Beyers support their arguments, and we find no merit in their points on appeal. We note that, in general, an express easement may be created by a written instrument. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987). Once an easement is created, the owners of the servient tenement cannot restrict the dominant tenement owner's use of that easement. Wilson v. Johnston, 66 Ark. App. 193,990 S.W.2d 554 (1999). The grant of an easement normally will control its location if the location is specified therein, and the grant should identify an easement's location with specificity. Id. (quoting 25 Am. Jur. 2d, Easements and Licenses § 74 (1996)). It is immaterial whether or not plaintiffs made use of the full rights of the easement area in the past; an easement created by an express grant is not lost by mere nonuse or partial use. Id. (citing Salmon v. Bradshaw, 173 N.W.2d 281 (S.D. 1969)). The Wilson court stated the following general rule from 25 Am. Jur. 2d, Easements and Licenses § 99 (1996):

[G]rant of an easement or right of way does not, by implication, include the right to have such way kept open to the sky for light and air, and the grant is not interfered with by building over the way, provided there is no interference with reasonable use of the easement as a passageway. . . . Of course, if a structure is contrary to the terms of grant of way, it cannot lawfully be erected; if the grant shows an intention of the parties that the way should not be interfered with by overhead obstructions, such intent will be given effect.

66 Ark. App. at 200, 990 S.W.2d at 557-558.

Here, the warranty deed conveying Tract 18 to the Beyers stated that the conveyance was subject to an easement for ingress, egress, and for utilities. Mr. Beyer acknowledged at trial that he saw the plat of the subdivision when he bought his tract. The plat, which was introduced into evidence, shows easements to which the appellants' property is subject, and shows that there is no access to other tracts within the subdivision from Highway 62 except by way of the easements on Tract 18. As noted earlier, the restrictive covenants were filed of record in Benton County before the Beyers purchased their lot, thus placing them on notice of the existence of easements on their property. Clearly, this reservation was an express easement in favor of Woodridge for the purpose of vehicular access to other lotswithin the subdivision.

Whether the chancellor erred in granting a corporation the use of the Beyers' easement, thereby violating Article 12 Section 9 of the Arkansas Constitution

Article 12, Section 9 reads as follows:

No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.

The Beyers' arguments under this point seem to be as follows. The written instruments granted no easement; the easements were granted, bargained, and conveyed to the Beyers by warranty deed, and Woodridge "forgot to grant himself an easement before he sold the property"; the easements were to be used for utilities or private drives, but not for vehicular use; Woodridge had no right to damage the right of way without liability; and the court erred in not addressing the issue of trees in the easement, which prevent building roads.

Woodridge contends that there was no violation of Article 12, Section 9, in that it reserved the easements when it conveyed the property by warranty deed to the Beyers. We agree. Furthermore, we note that the restrictions set forth by Section 9 apply only when the State has delegated its power of eminent domain to private corporations. Such was not the situation in this case.

Affirmed.

Stroud, C.J., and Vaught, J., agree.