McClaran v. Traw

2011 Ark. App. 198, 382 S.W.3d 705, 2011 Ark. App. LEXIS 202
CourtCourt of Appeals of Arkansas
DecidedMarch 9, 2011
DocketNo. CA 10-862
StatusPublished
Cited by1 cases

This text of 2011 Ark. App. 198 (McClaran v. Traw) 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
McClaran v. Traw, 2011 Ark. App. 198, 382 S.W.3d 705, 2011 Ark. App. LEXIS 202 (Ark. Ct. App. 2011).

Opinion

DAVID M. GLOVER, Judge.

|! Appellant Holly McClaran appeals from the trial court’s April 27, 2010 order, which granted a permanent injunction against her. The injunction involved an easement that was established in a May 12, 2008 judgment by Judge Philip Smith. The appellees in this case are Amos and Moon-Ja Traw, Tony and Selena Lowe, and David and Kathy Woodward, all of whom own property in the area and rely upon the easement to access their property, and, with the addition of the Wood-wards, who did not own their affected property at that time, are the same parties to the May 12, 2008 judgment. Ms. McClaran contends that the trial |2court erred in issuing its permanent injunction against her because the order was “contrary to the evidence” and “violated the doctrine of res judicata.” We reverse.

The judgment establishing the prescriptive easement provided in pertinent part:

On January 22, 2008, the above styled cause of action was submitted to the Court on the complaint of the Plaintiffs requesting the Court to declare that they had acquired a prescriptive easement over a roadway commonly known as “Traw Lane” and that the Defendants be enjoined from interfering with the rights of the Plaintiffs and the public in general in their use of said roadway.
The Court is well and sufficiently advised as to the premises, and upon consideration of the facts, pleadings and other matters finds as follows:
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(3) The roadway known as “Traw Lane” transverses the section line between Sections 21 and 16 running East and West from a county road known as Pleasant Run Road to the Northwest corner of East Half of the Northeast Quarter of Section 21, Township 21 North, Range 4 West, where it continues on to the Plaintiffs’ lands.
(4) The Court finds that in a previous lawsuit involving the Plaintiffs herein, an easement was granted other [sic] the portion of the roadway leaving the Northwest corner running west to Neal and Cynthia Rogers. Neal and Cynthia Rogers v. Amos and Moon-Ja Traw, Sharp County Circuit Court No. CV-2000-227.
(5) From Mr. Traw’s testimony he claims a reservation of that roadway by the estate of his father, but from the abstract the Court does not find any specific reservation and then in the later deeds to that property and the surrounding property and doesn’t see that there had ever been any reservation of ownership of that roadway.
(6) The Court finds that the actual ownership of the roadbed, the property where the road is, is actually contained within the deeds of Mrs. McClaran because she purchased that whole East Half of the quarter sections that are on both sides of that road, north and south, so it looks like from the drawing that’s been introduced into evidence the roadway is probably contained in her deed to the East Half of the Northeast Quarter of Section 21.
(7) The Court finds that the Plaintiffs have used the roadway know as “Traw Lane” as their only means of ingress and egress to their property for a period of time |,⅞⅛ excess of seven years, and by reason of such use of the roadway the Plaintiffs and the public have acquired a prescriptive easement.
(8) The Court finds that it is clear that this road has been used for many years as a means to get into Mr. Traw’s property; in fact, the Traws owned it at one time until the property was sold off after his father’s death, and so it’s clear that there has been an easement established for use of that roadway in and our [sic] by Mr. Traw and Mrs. Traw and obviously to their heirs and assigns in ownership of the property. And the Court is going to declare that there is an easement by prescription to that roadway and that the roadway is an easement that is twenty feet in width. The Court understands that two fence lines are somewhat farther apart than that, but the Court is finding from the evidence and from the photographs here that the actual roadway does not go right up to the fence line. The reason the Court is limiting this to twenty feet is that there was no testimony that there’s any particular need for more than that. The Court finds that twenty feet is enough room for two vehicles to pass if they are careful, unless one of them is a big vehicle obviously, in which case one is going to have to pull over. The Court is specifically doing this in order to solve this problem that was seen in the photographs of some ditches that are being dug right back up against the fence posts and are eating into the bases of these fence posts and compromising the fences.
(9) The Court finds that the Plaintiffs have a right to maintain the roadway in and out, and, if it needs fixing they can fix it so you can get in and out and do whatever you want to as far as maintaining the roadway. However, don’t get into her fence lines and fence posts. The Defendant should be able to maintain her fences without having to go back out there and fill in ditches.
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IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED, that the roadway known as “Traw Lane” has become a public way by the continuous, prescriptive use by the Plaintiffs and others; that the Plaintiffs and, the public are granted a prescriptive easement to said roadway which will be twenty (20) feet in width; and that the above findings by the Court are hereby ordered effective immediately-

(Emphasis added.)

Thus, the judgment established a prescriptive easement for the plaintiffs (the Lowes and the Traws) and the public. And it could not have been more clear in setting the limits of the easement: it was to be twenty feet in width, it did not extend the full width between the |4fences, and the right to maintain was limited to the “roadway.” There was no appeal from the judgment.

About a year and a half after the entry of the judgment, the Traws, the Lowes, and the Woodwards filed the motion for temporary and permanent injunction. In their motion, they acknowledged that the May 12, 2008 judgment “granted Plaintiffs a prescriptive easement for ingress and egress to ‘Traw Lane’ twenty (20) feet in width,” but sought to enjoin McClaran from .“keeping the present fence lines, from filling in the ditches, removing rock walls and from interfering with Plaintiffs’ right to maintain their easement to ‘Traw Lane.’ ” They also asserted that McClaran had “caused the fence lines which have defined the boundary between defendant’s property and ‘Traw Lane’ for more than forty-five (45) years to be moved inward causing a narrowing of ‘Traw Lane’ making it impossible for school buses that must traverse ‘Traw Lane’ to proceed safely.” Additionally, they claimed that other vehicles cannot pass safely without sustaining damage caused by the barb wire fencing now in place. Finally, they alleged that McClaran’s actions of filling in ditches and removing rock walls were causing erosion to “Traw Lane,” and if not abated, would permanently damage it.

Following a hearing concerning their request for permanent injunctive relief against McClaran, Judge Kevin King entered the April 27, 2010 order, which provided in pertinent part:

4.

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Bluebook (online)
2011 Ark. App. 198, 382 S.W.3d 705, 2011 Ark. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclaran-v-traw-arkctapp-2011.