Garringer v. Garringer

374 S.W.3d 769, 2010 Ark. App. 297, 2010 Ark. App. LEXIS 296
CourtCourt of Appeals of Arkansas
DecidedApril 7, 2010
DocketNo. CA 09-1245
StatusPublished
Cited by3 cases

This text of 374 S.W.3d 769 (Garringer v. Garringer) 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
Garringer v. Garringer, 374 S.W.3d 769, 2010 Ark. App. 297, 2010 Ark. App. LEXIS 296 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

LBy order entered on June 22, 2009, the trial court determined that appellee, Richard Garringer, had proved that he was entitled to an implied easement over his aunt’s, appellant Nellie Garringer’s, adjacent property. For her sole point of appeal, Nellie contends that the trial court erred in finding that Richard met his burden of proof. We affirm the trial court’s decision, but we remand with instructions for the trial court to amend the order to include a specific legal description of the easement at issue in this case.1

\9Standard of Review

In reviewing matters concerning easements, this court conducts a de novo review and will not reverse a finding of fact made by the trial court unless it is clearly erroneous. Orr v. Orr, 2009 Ark. App. 578, 2009 WL 2877634. A finding of fact 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. This court will give due deference to the opportunity of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Id.

Easement by Implication

An easement by implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. Hanna v. Robinson, 86 Ark. App. 180, 167 S.W.3d 166 (2004). In order for such an easement to be established, it must appear not only that the easement was obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property, the term “necessary” meaning that there could be no other reasonable mode of enjoying the dominant tenement without the easement. Id. An easement by implication arises at the time of the conveyance in which the common owner severs one of his parcels. Id. Thus, the necessity |sfor the easement must have existed at the time of severance. Id. Further, the apparently permanent nature of the easement must be in existence at the time of common ownership because the existence of the easement depends on the common owner’s use. Id. Whether an easement is necessary and apparent are ordinarily questions of fact. Id.; Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).

The reason for the above requirements is that an implied easement begins when a parcel of land is owned by one person. Hanna, supra. During the common ownership, the owner imposes a servitude on one part of his land in favor of another part. At that point, there is no actual easement since one person still owns all the land; rather, there is a quasi-easement. Id. When the owner conveys one of the parcels, ie., severs his estate, an implied easement is then created. Id. The nature of the easement corresponds to the benefits and burdens existing at the time of the severance. Id. Thus, the question of whether an easement is apparently permanent and necessary to the enjoyment of the dominant tenement must be determined at the time of severance, for that is when the easement comes into existence. Id.

The Property Transfers

Here, the following facts were essentially undisputed: appellee Richard’s parents, Clara and Paul Garringer, were the original owners of both parcels of land involved in this case. They are now both deceased. In 1963, Clara and Paul sold approximately one-half of their entire parcel to Paul’s brother, John (now deceased), and John’s wife, Nellie, who is the appellant in this case. In 1976, Clara and Paul subdivided their remaining parcel into eight |4lots for each of their eight children, conveying the property to their children but reserving a life estate in it. Richard received Lot 10, which is located at the far northwest corner of the property retained by his parents, and which is essentially landlocked.

Testimony

Scott Foster, a professional surveyor, testified that he performed a survey for Richard. The survey was introduced as an exhibit at the hearing. Scott pointed out the portion of the survey that represented Richard’s eight-acre parcel (Lot 10). He explained that Kinfolks Road is a county road that runs north from Highway 294 for about half a mile and then dead-ends. He testified that there is a private gravel drive located where Kinfolks Road ends, going east over Nellie’s property, toward Richard’s property. He stated that the gravel drive is used to access two houses along the gravel drive; that after the second home, an impediment had been placed between the gravel road and Richard’s property; that at one time the drive had gone “all the way through”; and that “[f]rom the point it’s blocked off, it’s like a dirt trail.” He testified that there were not any other roads that access Richard’s property, stating that if there were, they would have been on the survey. He indicated that he was not aware of a dedicated easement accessing Richard’s property along the east line of the property, also running north from Highway 294.

Richard testified that Nellie’s property bordered his property; that for his entire life, he had accessed the property, including what is now Lot 10 that was left to him by his |Bparents, traveling Kinfolks Road and crossing over his Aunt Nellie’s land. More particularly, he explained:

I received the property upon my mother’s death, which was four years ago. I believe it was deeded to us in 1976. My parents maintained the property until they passed. They had a life estate. They deeded other property to my other brothers and sisters. My property is the furthest northwest corner of the property that was deeded by my parents to their children. It is the back of the property. I was not granted any kind of easement for access to my property that I know of. The property was landlocked when I received it. There are boundary markers on my property. It outlines my land. I have heard of Kinfolks Road. This road starts at Highway 294 and runs straight north. It leads to the back of all the property and goes on to a minnow pond on Art Cole’s property. It does not go across Ms. Garringer’s property. The road does turn right onto the property of Aunt Nellie. I have used that road. I have used it as long as there has been a road there my entire life. Before there was a road, it was my parents’. There was a trail that goes across the back of the property to connect it before there was even a Kinfolks Road. They used it for access going to the minnow ponds and to the back of Mr. Cole’s property going to our property because of the circumstances. There’s a creek separating that goes across all the property. I can’t think of the name of the creek. When it rains you have to go down that road to get to the property. That’s just the way it was.
My parents gave me the property.... The same people that deeded my property to me deeded it to her [Nellie].
I stopped having access to my property off of Kinfolks Road two and a half years ago when all this started.

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.W.3d 769, 2010 Ark. App. 297, 2010 Ark. App. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garringer-v-garringer-arkctapp-2010.