ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

WENDELL MORRIS,

APPELLANT

v.

CITY OF RAVENDEN, ET AL.

APPELLEES

CA03-245

DECEMBER 17, 2003

APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT,

HON. THOMAS L. HILBURN, JUDGE,

(E2001-174)

AFFIRMED

Sam Bird, Judge

Wendell Morris is a property owner and homeowner in the W. H. Curry Addition of Ravenden, Arkansas. On November 8, 2001, the City of Ravenden filed in the Circuit Court of Lawrence County a complaint praying for temporary and permanent injunctions against Morris, who in the previous thirty days had blocked a portion of Anderson Street near his home and had made it impassable by tearing up asphalt with a backhoe. Ravenden also requested a declaration that Anderson Street from Highway 63 to Main Street was either a platted street or a public right-of-way, and an order requiring Morris to restore the street or right-of-way to its former condition. Morris alleged in his answer that over the years Anderson Street had shifted west from its original location to encroach upon the lands he owned, and that the encroachment had placed the road dangerously close to a home on those lands. He prayed that the complaint be dismissed and that the road be relocated to its previous location.

Following a trial, the circuit court entered an order that enjoined Morris from obstructing or blocking the street and ordered him to restore the pavement to its condition before he disturbed it. The order additionally decreed that the street's location at the time of trial remained unchanged by the court. Morris raises three points of appeal. We affirm the trial court's decision.1

The judgment against Morris included the following findings:

The Court finds that Anderson Street was dedicated pursuant to a plat to the City of Ravenden in 1947 [sic] with approximately a forty foot right of way.2 Anderson Street was totally graveled until approximately 1992 when around 800 feet were asphalted. When the City laid the asphalt it used the present Anderson Street roadway and did not follow the centerline of the right of way easement.

Anderson Street was being used by the public in its present location for over forty years and was being used in the same location as it now exists when defendant, Wendell Morris, purchased his property. Wendell Morris did not discover any discrepancy with respect to the right of way of the road until he had a survey made of the property.

The Court knows of no Arkansas law requiring construction of a road to the center of an easement. The property owners on either side of Anderson Street own to the center of the easement and can use their property up to the edge of the road.

In his appeal from this order, Morris contends that the trial court erred (1) in finding that there had been a street dedication, (2) in finding that Anderson Street did not have to be constructed to the center of the easement, and (3) in concluding as a matter of law that a prescriptive easement was established.

Property matters are reviewed de novo, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Carson v. County of Drew, ___ Ark. ___, ___ S.W.3d ___ (November 6, 2003). In reviewing these findings, we give due deference to the trial court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. 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.

Where there is usage of a passageway over land, whether it began 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). In the recent Carson opinion, our supreme court further reviewed property law concerning the area of prescriptive easement:

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 Assoc. Of Foxcroft Woods, supra; See Paul Jones Jr., Arkansas Titles to Real Property §§§§ 714, 1499, at 443, 906-09 (1935 & Supp. 1959); Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984) ("Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession."). 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." 25 Am. Jur.2d Easements and Licenses §§ 45 (1996); Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Neyland v. Hunter, supra; Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. Neyland v. Hunter, supra; Duty v. Vinson, 228 Ark. 617, 309 S.W.2d 318 (1958); Brundidge v. O'Neal, 213 Ark. 213, 210 S.W.2d 305 (1948). That statutory period for adverse possession is set out in Ark. Code Ann. §§ 18-61-101 (1987). See also Ark. Code Ann. §§ 18-11-106 (Supp. 1999) (enacted as Act 776 of 1995).

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. Owners Assoc. of Foxcroft Woods, supra; Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Manitowoc Remanufacturing, Inc. v. Vocque, supra; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O'Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Duty v. Vinson, supra; St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S.W.2d 659 (1950); Brundidge v.O'Neal, supra. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Owners Assoc. of Foxcroft Woods; Duty v. Vinson, supra; Brundidge v. O'Neal, supra; Stone v. Halliburton, supra.

___ Ark. ___, ___, ___ S.W.3d ___, ___ (November 6, 2003).

Evidence in the present case included extensive testimony by property owners and other persons about the location and use of Anderson Street. Agreed Exhibits No. 13 - 16 were a 1945 plat of the W. H. Curry Addition to Ravenden; a September 10, 2001, survey made with the purpose of establishing the east line of Morris's property; a warranty deed by which Wendell Morris and his wife, Lavenia Morris, took title to his land in the Curry Addition on December 16, 1997; and a February 11, 1949, warranty deed conveying the property east of Morris's land to Homer Lee Baker and Lena Z. Baker, husband and wife. The Morris deed included the following property description:

All that part of the Northeast Quarter (NE1/4) of the Southeast Quarter (SE 1/4) of Section Two (2), Township Eighteen (18) North, Ranger Three (3) West, lying North and East of the Railroad. Being the same lands described by Deed in Western District Book "58" at page -504- on February 23, 1923, subject to existing rights of way. A portion of said lands also being known as Block Fifteen (15) of W.H. Curry's addition to the town of Ravenden, Arkansas.

The grantors of the property were John Morris, unmarried, and Edna Morris Canote and Charles Canote, her husband.

Much of the testimony at trial was made with reference to Agreed Exhibit No. 13, the 1945 plat of the W. H. Curry Addition, which is located partly in the West Half of Section 1, and partly in the East Half of Section 2, Township 18 North, Range 3 West, in Randolph County. Three parallel lines on the plat indicate a "lane" running in a north-south direction, beginning at the northern boundary of the W.H. Curry Addition and running south for half a mile to the northern boundary of Blocks 15 and 16. The middle of these three lines denotes the dividing line between the West Half of Section 1 and the East Half of Section 2, while the other two lines apparently represent the east and west boundaries of the "lane." At the point on the plat where the "lane" intersects the northern boundary of Blocks 15 and 16, the westernmost of the three lines is discontinued, and the two other lines continue on for an additional 700 feet to the south boundary of Blocks 15 and 16.

Testimony at trial also referred to Agreed Exhibit No. 14, which was the September 10, 2001, survey made by Terry Throesch on behalf of Morris to establish the east line of Morris's land. Throesch, a professional surveyor, testified that a dashed line on the survey represented the boundary line between Sections 1 and 2, which was also the boundary between Block 15 on the west, owned by Morris, and Block 16 to the east, owned by Mary Lee Baker Rogers. The survey indicates that this boundary line is situated within Anderson Road where the road is straight, but that the boundary line lies east of Anderson Road where the road curves slightly to the west around a tree. The location of Morris's house is indicated by initials west of this curve. The Throesch survey shows that Anderson Road is paved beginning at the north boundary of Sections 1 and 2 and continuing south past Morris's house to where the road curves around the tree; that it is a gravel road south of the curve; and that it dead ends on the south into Main Street, which is also a gravel road. A railroad track lies south of Main Street and parallel to it.

Throesch also testified that the road in question was "represented on the plat and from the east line that I surveyed." He stated:

Based on the original plat filed for the Curry Addition the road was straight. It does not show the road actually being platted past Block 15 which would only be 700 feet from the northeast corner.

. . . .

The east line of Mr. Morris' property is a section line. But based upon the plat in Agreed Exhibit 13, it doesn't show the center of the road in Block 15. According to the plat it doesn't show a road. I've looked at the deed [conveying the lands to Morris] that is Agreed Exhibit 15 and it states that it is subject to existing rights of way. That would be an indication that when the deed was made someone thought there was a right of way along the east side of that road.

Throesch further testified that Agreed Exhibit 13, the plat of the Curry Addition, "shows that there is a road that actually straddles the centerline of the road. That is actually the section line." He said that south of the northeast corner of Morris's property, a line is shown on the east side of Block 15 but not on the west side. He further stated:

It is not consistent because the road is shown as an easement being on both sides of the sectional line until it gets to the property that Mr. Morris owns. At that point it changes and actually shows the road being on the other side of the section line, or at least the easement is there and then it is changed. They are showing an easement on the east side of the Section line at that point. It does not show an easement on the west side, which would have been Wendell Morris' property.

James Gibbens, the mayor of Ravenden, testified that Anderson Street had existed in its location from Highway 63 to Main Street for as long as he could remember, and that the street had been used frequently during his years as mayor. He further testified:

The county used to maintain and grade the road before it was blacktopped. During the twenty-five years that I have been the mayor it has been maintained either by the city or the county. Since the road was blacktopped ten to twelve years ago the city has exclusively maintained it since that time. The county assists the city in maintaining the gravel portion of the road.

City councilman Larry Dail testified that he had lived in Ravenden for his forty-nine- year lifetime. Dail said that he had frequently used Anderson Street during the previous twenty years, and that the city council had always accepted the street's existence from Highway 63 to Main Street. He said that his aunt used to live in a house on the road that was located close to trees on the west side, the property currently owned by Morris. He said that the road had been "as it is" all of his life.

Imo Dail testified that he was eighty-three and had lived in Ravenden for as long as it had been incorporated, which was all of his life. He stated that he used to visit his aunt on Anderson Street almost every week, and that the street was in the same location as it had always been.

Archie Perrin, an eighty-five-year-old man who lived in Imboden, also testified that the road was where it had always been. He testified that he was familiar with Anderson Street, that the road had been open from Highway 63 down to just north of the railroad for as long as he could remember, that he did not remember the location of the road ever changing through the area, and that he frequently had visited the home of his good friend Rupert Morris and was also familiar with the Homer Lee Baker place across the road east of the Morris place. Eighty-five-year-old Essie Sellers of Imboden testified that she could remember visiting the Bakers in 1955 by driving from Highway 63 to get to their house, so Anderson Street had probably been there for fifty-five years. She said that she had driven the entire length of Anderson to its intersection with Main Street.

City councilman Harold Sharp testified that he was forty-four years old and had lived in Ravenden all of his life, and that the initials H.S. on Exhibit No. 14 showed the location of his house on the east side of Anderson Street where he had lived for four or five years. He testified that he had always used the street from the highway to Main Street, and that it had always been at its current location and curved around trees. He testified that his mother had traveled the road when she was a little girl, and that he had been required to travel Anderson Street to access river-front property of his grandfather, John Clarey.

Mary Lee Baker Rogers testified that she owned property and a house on the east side of Anderson Street. She stated that her parents were Lena and Homer Lee Baker, that the house she currently owned was the one she had grown up in, and that the road then was exactly as its current location. Rogers said that the road then might be called a smaller lane coming down to the Morris residence; that the road was always on the Morris side; that she had always made use of the street from where her property began down to Main Street; and that between 1955 and 1960 her father had built the south part of Anderson Street, from the point where the survey showed the trees down to Main Street.

Jerry Kemp testified that he had been a rural letter carrier and postmaster after moving to Ravenden in 1944, and that he had quit driving in 1985. He said that he did not remember the location of Anderson changing during the years he had carried the mail, that the road had not been straight then, and that there were big rocks. He stated that he did not remember a tree being taken out, that the road "came on the side closest to Mr. Morris' house," and that "[i]f you met someone you would have to pass on that side of the tree."

Wendell Morris testified that he had lived in the city limits all his life, and that he owned "the other side of the street from Mrs. Rogers' property." He said that when had bought the property in 1997 or '98, he was unaware of any easement other than for the railroad on the south end of the property. Referring to the warranty deed that gave him title, he agreed that the lands described were subject to an existing right of way. He also testified that he did not dispute that, from the northeast corner of his lot down to where it intersects with Main Street, Anderson street had been used by the public for at least thirty years. He told the court that he just wanted to get the road straightened out to where it was supposed to be.

Turning now to Morris's appeal, we begin with the last point presented because we find that it controls the other two points. For his third point, Morris argues that the trial court erred in concluding as a matter of law that a prescriptive easement was established.

An easement by prescription results from seven years of use adverse to the owner and his predecessors in title, and a claim of right does not mature if public use of a road over another's property has been by permission or mistake. Kralicek v. Chaffey, 67 Ark. App. 273, 998 S.W.2d 765 (1999); Pierce v. Jones, 207 Ark. 139, 179 S.W.2d 454 (1944). Morris concedes that there was a showing of public use of Anderson for a period of years far in excess of the seven years required to establish a prescriptive easement, but he complains that the evidence failed toshow that use of the disputed area had been adverse to him and his predecessors in title. He notes testimony by Rogers and Councilman Sharp that they considered use of the street permissive, and testimony by Councilman Dali and by Morris himself that they mistakenly believed that the centerline of the present location of Anderson Street followed the section line and thus the boundary lines between the Morris and Rogers properties.

Morris contends that the trial court, by finding that the public had used Anderson Street in its present location for more than forty years, seemingly concluded that as a matter of law Ravenden had established an easement by prescription. We agree that this constitutes a finding that the road was established by prescriptive easement.

In Carson v. County of Drew, ___ Ark. ___, ___, ___ S.W.3d ___, ___ (November 6, 2003), the supreme court set forth the following reasons for affirming the trial court's finding that an easement by prescription existed in favor of the public as to a road, turnaround, parking area, and landing:

Certainly, the testimony presented to the trial court demonstrated that members of the community had used Gee's Landing area in excess of the seven years required. In fact, the evidence demonstrates that the members of the public had used the property for around sixty years. Because there was an acquiescence to longtime use, [it] operated to put appellants on sufficient notice "of a claim of right." Therefore, the communities' use of the property meet the actions required for prescriptive easement.

The period for acquiring a prescriptive right-of-way and the statutory period for acquiring title by adverse possession both require seven years, but prescriptive use, unlike adverse possession, need not be exclusive. Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984). The public use is under a claim of right when governmental authorities assert their dominion by working a road for seven years. Id.; Morris v. Thompson, 218 Ark. 542, 237 S.W.2d 473 (1951).

Here, the public's open usage ripened into an absolute right because the usage continued far beyond the statutory period required after Morris's predecessors in title had knowledge that the usage was adverse. See Fullenwider v. Kitchens, supra. Evidence was presented to the trial court that the city had built Anderson Road in its present location more than forty years before Morris made it impassable, and that the public had used the road continuously for that time to travel between Highway 63 and Main Street. Furthermore, the city had blacktopped and maintained the disputed portion of the road. Thus, the trial court did not err in finding that a prescriptive easement had been established.

Although our holding on Morris's third point is dispositive of this appeal, we will briefly discuss why we conclude that Morris cannot prevail on either of his other two points. For his first point, Morris argues that the City of Ravenden should be ordered to straighten Anderson Road because the trial court erred in its finding that there had been a dedication of the street. Even if we agreed with Morris that the trial court had erred in its holding that there had been a dedication of Anderson Street, such error would be of no avail to Morris. Where the evidence was overwhelming that Anderson Road has existed in its present location for more than forty years, it is immaterial that the 1945 plat of the W.H. Curry Addition to the city depicted an easement for a lane that was straight. It is clear from the evidence that Anderson Road was either never constructed as a straight road as depicted on the plat, or that its location was changed more than forty years ago. In either case, the public has acquired a prescriptive easement to use the road as it was located before Morris blocked it.

Morris's second point, that the trial court erred in finding that Anderson Road did not have to be constructed in the center of the easement, is also of no avail to him. As already noted, the evidence was overwhelming that for more than forty years, Anderson Road has not been straight and, therefore, was either not originally constructed as depicted on the 1945 plat or its location was changed more than forty years ago. Either way, the public's prescriptive easement to use the road includes the right to use the roadway as it was located before Morris blocked it.

Affirmed.

Hart and Vaught, JJ., agree.

1 Morris filed a third-party complaint against Mary Lee Baker Rogers. Her answer adopted the city's complaint, denied that Ravenden had any interest in her property, and pled as an affirmative defense the seven-year statute of limitation for recovery of real property under Ark. Code Ann. § 18-61-101. The order from which Morris appeals included a dismissal of his third-party complaint, which Morris does not appeal.

2 The plat that was introduced into evidence at trial and to which witnesses referred in their testimony is dated 3/17/45.