Osborn v. Tennison

2014 Ark. App. 175, 434 S.W.3d 1, 2014 WL 960950, 2014 Ark. App. LEXIS 208
CourtCourt of Appeals of Arkansas
DecidedMarch 12, 2014
DocketNo. CV-13-740
StatusPublished
Cited by2 cases

This text of 2014 Ark. App. 175 (Osborn v. Tennison) 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
Osborn v. Tennison, 2014 Ark. App. 175, 434 S.W.3d 1, 2014 WL 960950, 2014 Ark. App. LEXIS 208 (Ark. Ct. App. 2014).

Opinion

KENNETH S. HIXSON, Judge.

| ¶ Appellant Delmar G. Osborn appeals from an amended order whereby the trial court, among other things, issued an injunction enjoining Mr. Osborn from interfering with or obstructing an easement in favor of the appellees, Donna L. Cole Ten-nison and her husband Carious Tennison. The roadway at issue runs southbound across appellant’s property and forks into two roads known as the “A” road and “B” road, which both access the Tennison property.

In this appeal, Mr. Osborn argues that the trial court clearly erred in finding that the A road was part of the easement, and further erred by authorizing the appellees to modify the gate on the A road. Mr. Osborn also argues that the easement in this case is personal to only appellee Donna Tennison. We affirm.

|2In 1985, Mr. Osborn and his wife owned property in Marion County and conveyed a parcel of land to Donna Cole (now Tennison) and her parents, as joint tenants with right of survivorship. The conveyance included the following easement across the Osborns’ property:

A private road and utility easement for ingress and egress over and across the road as it now exists extending from county road known as Jimmie’s Creek Road in Section 12, across the North half of Section 13 and into the Southwest quarter of Section 13, all in Township 19 North, Range 16 West, which easement is for the exclusive use of Grantors and Grantees only.

The warranty deed provided that the conveyance was to Ms. Tennison and her parents, and “unto their heirs and assigns forever.”

In 1992, Mr. Osborn and his wife deeded their interest in their properly to Mr. Osborn’s two daughters, with the conveyance being subject to all existing easements. Mr. Osborn retained a life estate in the property, and his wife has since died. Mr. Osborn’s daughters and their husbands have acknowledged that the Tennisons have an easement running through the property.

In 1993, Donna married Carious Tenni-son. Donna’s father is now deceased, and her mother has deeded to Donna her interest in their property. Donna has permitted Carious to use the easement for farming operations.

The litigation in this case was initiated when the Tennisons filed a complaint against Mr. Osborn on April 13, 2012. In their complaint, the Tennisons alleged that Mr. Osborn had obstructed the roadways included in Donna’s easement by the use of gates and locks, and that he had also blocked their use of the roads with trees and other debris, which | -¡interrupted the Tennisons’ farming operations. The Ten-nisons asked for an injunction against Mr. Osborn restraining him from interfering with or obstructing the roadways, and for permission to construct a gate large enough to permit farming equipment ingress and egress.

On May 10, 2012, Mr. Osborn filed an answer denying the material allegations in the Tennisons’ complaint. On May 21, 2012, Mr. Osborn filed a counterclaim asking that the easement be terminated. In his counterclaim, Mr. Osborn alleged that the easement at issue was personal in nature and only to be used by the grantors and grantees, and that it was understood that the grantees would use the road because it was the only access to their property. Mr. Osborn alleged that since the sale was consummated in 1985, several other roads have been used by the Tenni-sons to access their properly and thus the purpose of the easement had ended. Mr. Osborn also alleged that the 1985 warranty deed was drafted at the behest of Donna Tennison and her parents, and that any ambiguity in the easement should be construed against the drafters. Finally, Mr. Osborn asserted that Carious Tennison and his agents were in violation of the easement because the easement gave no authority for him or his agents to traverse the properly.

Donna Tennison testified at the bench trial held on September 25, 2012. She testified that after she and her parents acquired their properly from the Osborns in 1985 it was used for cattle farming. Mrs. Tennison stated that they used both the A road and the B road to access their land, and she thought that both of these roads were included in the easement.

Mrs. Tennison described the A road as the more important road because it was used to access the location of their cattle. Mrs. Tennison stated that the B road is a steep road that | ¿accessed a stone quarry. She indicated that the B road is difficult to use and is unsuitable for hay or cattle trucks.

Mrs. Tennison testified that within a few years of the conveyance in 1985, Mr. Osborn built a fence between the parties’ properties. Gates were later constructed on both the A road and B road, but the gate at the A road is only four feet wide and is too narrow to drive a truck through.

Mrs. Tennison testified that since marrying Carious Tennison in 1993, she has given him permission to use the roads to assist in farming the property. Mrs. Ten-nison has also given others involved in their farming operation permission to use the roads.

Carious Tennison testified that for the past two years Mr. Osborn has engaged in a campaign of blocking their access to the roads by changing the locks and barricading the roads with debris. This resulted in Mr. Tennison filing police complaints against Mr. Osborn and ultimately the filing of this lawsuit.

Mr. Tennison indicated that the B road is too steep for a large truck, and that they can only bring eight bales of hay at a time on a 16-foot flatbed. He stated that if they could use the A road, their large trucks could drive directly to the barn and save them several days of extra work. He said that he would like to place a larger gate at the location where the A road connects the two properties.

Mr. Tennison testified that he spoke to Mr. Osborn’s two daughters, who presently own the adjoining properly, and they told him that they thought he had the right to use the | stwo roads. The daughters presented a plat showing both the A road and B road as part of the easement.

Mr. Osborn testified that the easement consists only of the quarry road (the B road), and does not include the A road. Mr. Osborn acknowledged that Mrs. Ten-nison had the right to use the B road, but he stated that nobody else was authorized to use the easement. Mr. Osborn agreed that the A road is a good road and is much better to use than the B road.

The trial court entered an order on February 15, 2013, which contained a description of the easement and included the following findings:

8. That Delmar G. Osborn has obstructed the roadways referenced above, to which the Plaintiffs are entitled to use, has attempted to obstruct by use of gates and locks the free use of said roads including efforts by Delmar G. Osborn to place trees or other debris in the roadways blocking the free use of said roads.
9. That this has interrupted the farming operation of Donna L. Cole/Tennison and her husband Carious Tennison and caused both inconvenience and economic damage.
10. That an injunction should be issued against Delmar G. Osborn, also known as George Osborn, from interfering with or obstructing the roadways described above and as noted hereinafter.
11.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 175, 434 S.W.3d 1, 2014 WL 960950, 2014 Ark. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborn-v-tennison-arkctapp-2014.