NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

CLINT GASAWAY d/b/a THE ASSOCIATION TO REOPEN TAYLOR OLD RIVER

APPELLANT

V.

SOUTH BEND HUNTING CLUB, INC. and CHICAGO MILL & LUMBER CO.

APPELLEES

CA01-957

September 18, 2002

APPEAL FROM THE LINCOLN COUNTY CHANCERY COURT

E-98-120-1

HON. EUGENE HARRIS, JUDGE

AFFIRMED

On May 27, 1998, appellant, Clint Gasaway d/b/a the Association to Reopen Taylor Old River (Gasaway), filed a complaint for a prescriptive easement against appellees, South Bend Hunting Club (SBHC) and Chicago Mill & Lumber Co. (Chicago Mill). Appellant alleged that the property in dispute was a portion of the Arkansas River levee and a roadway leading from the levee to Taylor Old River, which was owned by Chicago Mill and leased to SBHC. Gasaway claimed that he and others had accessed Taylor Old River to fish for more than fifty years by the roadway at issue; that the roadway had been used continuously, openly, notoriously, hostilely, and adversely for more than seven years with actual knowledge by appellees and their predecessors; and that the use had ripened into a prescriptive easement. The trial court denied a request for a temporary injunction after a hearing. A trial was held on March 22, 2001. After taking the case under advisement, the court ruled that appellant failed to prove that he was entitled to a prescriptive easement, finding that (1) the road at issue is not a county road and the land it crosses is wild, open, and unenclosed; (2) the use permitted by SBHC was from a desire to accommodate its neighbors and appellees did exercise control over the land and road; and (3) the roadway was not connected to a navigable stream but to a lake that is not connected to the Arkansas River except during periods of overflow. Appellant contends that the trial court's decision is clearly erroneous. We disagree and affirm.

This court reviews chancery cases de novo on the record but will not reverse a finding by the chancery court unless it is clearly erroneous. Owners Assoc. of Foxcroft Woods v. Foxglen, 346 Ark. 354, 57 S.W.3d 187 (2001). A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.

One asserting an easement by prescription must show by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period. Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000). The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Id. 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, the length of time and circumstances under which the roadway was opened and used are sufficient to establish an adverse use. Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981).

In Fullenwider, supra, the court explained:

223 Ark. at 446, 266 S.W.2d at 283.

In support of his case, appellant called numerous witnesses. Many of the witnesses had fished Taylor Old River regularly for years (one for as long as sixty years) until the gate was erected by SBHC. Many of the witnesses were friends with members of SBHC. They all accessed the lake by going down the levee and turning down the berm or spur. Most recalled the road being gravel. The witnesses testified that they never asked permission to use the road or lake, and they were never asked to leave. No one from Chicago Mill ever told them they could not go out there anymore, nor did they tell Chicago Mill that they were using the property or claiming a right to the property. Many of the witnesses also testified that they remember when Fate Nuckols controlled the property by charging people to put a boat in the lake. Some also recalled SBHC placing signs stating no camping and no nighttime activities. One witness (Jimmy Boren), who had been a member of SBHC until 1996, testified that the signs had not been put up until six years ago. There was also testimony that some witnesses had seen a county road grader on the property.

Appellant contends that the case of Zunamon v. Jones, supra, is directly on point and supports his argument for reversal. The facts of Zunamon, however, are clearly distinguishable. The road at issue there had been in existence as early as 1913 or 1914, and was used by people coming from a steamboat landing on the Arkansas River. It was approximately one and a quartermiles long and thirty feet wide. The testimony indicated that the road was traveled by wagons, buggies, and automobiles for sixty years. There was also evidence that the road had been maintained by private citizens, as well as the county by grading and graveling. Witnesses for both parties also testified that the road was used by log haulers, fisherman, hunters, and campers. The manager of the owner since 1929 testified that he was aware of private logging concerns and others using the road but no attempt to prevent people from using the road was made until 1979. Two members of the hunting club who had been familiar with the road for thirty-two years and seventeen years, respectively, testified that they were aware of the public's use of the road. Both indicated that keep out signs were posted for a five-year period, but that no action was taken to bar the public from using the road until 1979. In addition, several representatives of appellants knew of and were aware of the public's open and continued use of the road for at least fifty years, but appellants never denied access to anyone. In the present case, there is not much testimony describing the road; however, the chancellor indicated the road at issue is a one-lane road approximately 150 to 200 feet long, which leads from the levee to SBHC. Rita Shepard was the wife and administrative assistant to deceased County Judge Charles Green who served from 1973 until his death in 1981. She succeeded her husband and served as county judge for 1981-82, 1985-88. She testified that the county never maintained the road or provided gravel during her tenure as county judge or administrative assistant. J.T. Moncrief served as county judge from 1982-84 and 1994-95; he testified that the county never maintained the road while he was judge and that no road inside the levee had ever been maintained by the county. The current county judge, Berzent Blagg, who was in his third two-year term, stated that the county has not maintained the road during his tenure and that it was not within the county system. Contrary to the testimony of the judges, J.C. Edwards, a road grader operator for Lincoln County for thirty-six years, testified that he maintained the road for the county on a regular basisuntil he retired in 1981. He stated that a county judge would order a load of gravel and he would go in there to "blade it and spread it." He indicated that Judge Green had him maintain the road, as well as the fact that he would routinely grade roads of private landowners as ordered by the county judge. Wayne Boren, a charter member of SBHC, testified that a county judge had once asked if the club wanted the county to maintain the road, and they declined the offer because it may set a precedent that it was a public road. Although there is a dispute as to whether the county maintained the road, we defer to the chancellor's superior position to assess credibility and to resolve conflicts in testimony in favor of one party. Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000).

The most compelling difference in Zunamon is that the representative of the owner testified that he was aware of private loggers and others using the road for fifty years, but made no attempt to prevent the use until 1979. Here, there was no such testimony. Rather, Robert Horton, who worked for Chicago Mill from 1956 until 1993, testified that he had been involved with the property since 1975. He visited the property three or four times a year from 1968 until 1993, sometimes more. He testified that the property abutting Taylor Lake has been leased to SBHC since 1968. He stated that Chicago Mill meets with the officers of SBHC at least once a year. He recalled an occasion in the late 1980s when SBHC reported a problem with someone placing a trailer on the property. SBHC had the trailer removed. Horton did not remember any other complaints of unauthorized use. Horton would occasionally talk to people he saw down at the camp. No one ever told them that they were not a member of the club and that they had a right to use the road. There was also testimony that since the property was quitclaimed by the levee district to Chicago Mill in 1961, it has been controlled by Chicago Mill and SBHC. There was testimony that Fate Nuckols controlled the property until 1974 by charging to launch boats, and by renting boats and cabins. SBHC assumed control of the property in 1974.

Pat Sullivan, the custodian of records and general manager for Chicago Mill, testified that Chicago Mill never requested anyone other than its tenant to maintain the roads on the property, and never had notice that anyone else was maintaining the property. Sullivan testified that SBHC was required to control unauthorized use and to legally post the property. He also stated that Chicago Mill had not had any knowledge of anyone using the road who did not have permission of Chicago Mill or SBHC. He knew of one trespasser.

Appellees also presented the testimony of Galen Gasaway, who testified that he had been a charter member of SBHC when it began in 1962. SBHC, pursuant to the lease with Chicago Mill, was required to post the property, to patrol and police the property, and to prevent trespass and unauthorized use. Galen testified that he has had to confront people at the lake approximately twenty to twenty-five times, and called law enforcement on three of the occasions. He stated that they have allowed people to come in and fish, so long as they abided by the rules that were posted. If people came down there and acted improperly or contrary to the signs, SBHC would confront them and make them "leave or shape up." Galen testified that he has not seen anyone except members of SBHC maintain the levee or the road from the levee to the camp. He indicated he had never seen the county maintain the road and stated that Howard Raley had maintained the road for the past fifteen years. Galen testified that the gate was erected in 1996 to prevent the general public from coming into the area.

Robert Murphy has been a member of SBHC since 1974. He testified that SBHC has always regulated activities out there; he has run people off of the land and has called law enforcement on several occasions. He specifically recalled telling one of appellant's witnesses, Wayne Beck, not to back his front wheel drive down to the edge of the water. A sign prohibiting people from backing down was there in 1974. He told Beck not to come back if he could not abide by the rules andregulations. In addition to signs stating that cars could not back down, SBHC put up signs in the 1980s prohibiting camping and all night activity. According to Murphy, they did allow friends to fish there. Murphy was also familiar with the lease and stated that they were required to police the property. As such, they prevented anyone from using the property who did not have permission from SBHC. The club filed annual reports and met with Chicago Mill annually. Murphy recalled that in 1988, they advised Chicago Mill of unauthorized use of the property. No camping, no hunting, and no night fishing signs were put up in 1988.

Clearly, the appellant's evidence merely showed that the public used the road for an extended period. The appellee's evidence demonstrated that the public's use of the property was permissive. Permissive use can ripen into an absolute right where the 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. Fullenwider, supra. Here, there was no evidence that Chicago Mill had any actual knowledge of adverse use nor are the facts and circumstances such that Chicago Mill would have presumed to know that the use was adverse. Based on the foregoing, we cannot say that the trial court's findings are clearly erroneous.

Affirmed.

Jennings and Crabtree, JJ., agree.