Acuna v. Watkins

423 S.W.3d 670, 2012 Ark. App. 564, 2012 Ark. App. LEXIS 684
CourtCourt of Appeals of Arkansas
DecidedOctober 10, 2012
DocketNo. CA 12-117
StatusPublished
Cited by8 cases

This text of 423 S.W.3d 670 (Acuna v. Watkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acuna v. Watkins, 423 S.W.3d 670, 2012 Ark. App. 564, 2012 Ark. App. LEXIS 684 (Ark. Ct. App. 2012).

Opinion

ROBERT J. GLADWIN, Judge.

hOn November 21, 2011, the Scott County Circuit Court ruled that a prescriptive easement had been acquired by the public for the use of Katie Drive, a roadway on appellant Gabino Acuna’s land that allows access to the parties’ property. The trial court further held that appellant was prohibited from placing a fence or cattle guard across Katie Drive or at the intersection of Katie Drive and the driveway of appellees Randall and Lillian Rachelle Watkins, allowed appellant to place a fence along the east side of Katie Drive, and held that the restrictive covenant in appel-lees’ chain of title requiring that a “suitable fence” be placed around the property was unenforceable due to vagueness. On appeal, appellant contends that the trial court erred: (1) in declaring that appellees proved a public prescriptive easement; (2) in refusing to enforce the restrictive covenant in appellees’ chain of title; and (3) in prohibiting the placement of cattle guards by appellant. We affirm.

12Statement of Facts

Prior to March 25, 1978, J.B. Cox, Jr., and his wife owned all of the land involved in this litigation. At that time, the land was used for raising cattle. Over the next thirty years, several tracts were cut out of the original larger tract, and a subdivision developed, including the construction of two roads that provided access to these new residences. One of these roads, known as Katie Drive, comes off of U.S. Hwy 71 and goes through appellant’s property.

This dispute arose between the parties when appellant announced his plan to place cattle guards on Katie Drive and in appellees’ driveway so that he could run cattle across the drive. A cattle guard was installed on Katie Drive at its entrance onto Hwy 71. The City of Waldron removed the cattle guard based on its opinion that the roadway was a public-access road. Appellees also refused to place a cattle guard in their driveway, which turns immediately off of Katie Drive, and further refused to allow the construction of a fence along their east property line, which adjoins with the west right-of-way line of Katie Drive.

Appellant testified that he bought his property in 2009 with the intention of running cattle on it. He further testified that he installed a cattle guard immediately off of Hwy 71 at the turn onto Katie Drive. He said that he did not make application with the county judge or get his approval when installing the cattle guard. It is undisputed that, after the installation of the cattle guard, at the city’s direction, it was removed. Appellant testified that when the mayor asked him to remove the cattle guard, he was told that it was not safe in light of the older people who live in that area. Appellant acknowledged the public usage of |sthe roadway in question, verified that the trash truck picks up trash on the roadway, and agreed that the mail has regularly been delivered along the roadway. He noted that there are at least six households along Katie Drive and that people come and go from these houses on a regular basis.

Don Owens, the mayor of Waldron, testified that it was at the city’s direction that the cattle guard was removed. He further verified that, as mayor, he had put gravel on the roadway, graded the roadway, and had done some backhoe work on it. He stated that, although Katie Drive is not a dedicated city street, it is a public-access road that the trash trucks, mail carriers, and the general public travel daily. He testified that he thought this public-access road did not need to have cattle traversing it. Mayor Owens described the area as “kind of a subdivision as it’s developed.” He stated that there are six houses along Katie Drive. He noted that he had lived in the area all of his life and did not remember cattle being run in the area since the existence of Katie Drive. He further testified that Katie Drive has been in existence for more than seven years.

Appellee Randall Watkins testified that he purchased his property in 2007 from Donnie Hill. He testified that when he bought his home, Katie Drive had a city street sign on its entry. Mr. Watkins verified that the trash truck comes by regularly to pick up his trash at the end of his driveway, which immediately adjoins Katie Drive. He also testified concerning Laura Lane,' which runs east of Katie Drive near the location of his home.

Donald Goodner, a licensed attorney in Waldron and operator of Scott County Title Company, testified that he had reviewed the title history of the tracts of property in question. j4He verified that he was familiar with Katie Drive and Laura Lane, not only through his title work, but also from having resided in Scott County and in Waldron for many years, and having traversed by the same several times per week. He testified that he had discovered a 1973 roadway easement, which he prepared, as well as a 1981 roadway easement. He said that after 1981, roadway easements were no longer required to be a part of title work. He recalled that the city, at one time, had claimed both Katie Drive and Laura Lane as city streets, and in fact, he had observed city street signs on both streets for many years. He said that it was only within the last couple of years that a dispute had arisen as to whether these were city streets or private drives.

Mr. Goodner further testified that he had discovered there were utility easements in the general area along Katie Drive — specifically, a sewage and waterline easement. He testified that, over the years, he had frequently observed local traffic going up and down the roadway, and he had visited friends who resided in the area. He testified that as part of his abstracting business, he relied upon 9-1-1 maps, which showed both of these roadways to be city streets. He noted that he had not observed a fence along either side of Katie Drive for at least the past ten-to-fifteen years. Mr. Goodner clarified that the two roadway easements, which he found dated 1973 and 1981, were roadway easements traversing along Katie Drive. These easements flowed in favor of Pat Ray and Diana Davenport as well as Thomas Griffin and Aletha Griffin. He also noted that, in his research of appel-lees’ chain of title, Katie Drive was not mentioned in their deed. It was his opinion that Katie Drive was a city street.

lBWhen questioned by appellant’s attorney concerning a 1978 deed from J.B. Cox, Jr., to Mr. Graham, Mr. Goodner noted that there were two covenants contained in it. One covenant restricted placement of mobile homes on the property, and the second required the grantee to build a suitable fence. Although this covenant was contained in the 1978 deed, Mr. Good-ner said that, to his knowledge, a fence had never been built around the property. He further noted that the 1978 deed did not indicate that the fence covenant ran with the land. It was his opinion that the covenant was vague, unenforceable, and personal in nature.

Finally, James Forbes, Scott County Judge, testified that he was familiar with Katie Drive and understood that it was a city street. He assisted the city in maintaining the street due to the fact that the city did not have adequate equipment. He testified that he had been maintaining Katie Drive for five-and-a-half years in the form of grading it at least three times per year. He further testified that no one had made application with him under the Arkansas statute that requires the county judge’s permission to put a cattle guard on public roadways.

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Bluebook (online)
423 S.W.3d 670, 2012 Ark. App. 564, 2012 Ark. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acuna-v-watkins-arkctapp-2012.