Redwine v. Bobby

378 S.W.3d 866, 2011 Ark. App. 251, 2011 Ark. App. LEXIS 257
CourtCourt of Appeals of Arkansas
DecidedMarch 30, 2011
DocketNo. CA 10-1082
StatusPublished
Cited by3 cases

This text of 378 S.W.3d 866 (Redwine v. Bobby) 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
Redwine v. Bobby, 378 S.W.3d 866, 2011 Ark. App. 251, 2011 Ark. App. LEXIS 257 (Ark. Ct. App. 2011).

Opinion

WAYMOND M. BROWN, Judge.

| j This case involves the use of an established easement on property located in Sharp County. After she purchased her property, appellant Kimberly Redwine had a dispute about the use of an easement on her property, used for the benefit of her neighbors, appellees Bobby and Brenda Turner. After a trial, the court entered the order from which Redwine appeals. She contends that the circuit court erred by requiring the parties to share the expenses of maintaining the easement and adjacent fence, by requiring the fence to remain on the property, and by not allowing her to install gates at the end of the easement. The circuit court did not clearly err in any of these rulings; therefore, we affirm.

The parties are adjacent landowners. The Turners purchased twenty acres in rural Sharp County in 2006. Redwine bought the adjacent forty acres, to the west of the Turners, |2m 2009. Redwine’s property is subject to a twenty-foot-wide easement that runs along the north border of her property. This easement connects the Turners’ property to a county road, allowing ingress and egress. Redwine’s flaneé, Kevin Coursey (a party below, but not to this appeal), leases land north of Redwine’s property.

This dispute involves use of the easement itself as well as fences and gates along the easement. In February 2010, the Turners filed a complaint against Red-wine and Coursey, seeking a declaration establishing their rights to the easement, an injunction preventing Redwine and Coursey from interfering with the easement, and an order directing Redwine and Coursey to pay for damages to the easement and the adjoining fence. Redwine filed a counterclaim against the Turners, but the counterclaim was voluntarily dismissed.

The circuit court held a trial in May 2010, where the parties presented testimony. Mrs. Turner testified that her and her husband’s plan was to move onto the property five years after the purchase, but they moved onto the property in 2008 when their house burned. In March 2007, they had someone bulldoze and clear the easement, costing them about $6200. They put a mobile home on the property in September 2008. At that time, there was a fence on the north side of the easement acting as a boundary fence. When they moved onto the property, they put gates on both ends of the easement to keep the neighbor’s horses from getting off the property. They also posted signs to keep others from trespassing onto the property. Mrs. Turner denied that the signs were designed to keep Redwine and Coursey off their properties. In 2009, the Turners built a fence along the south side of the easement and 13removed the gates at the end of the easement. Mrs. Turner testified that, with the fence, the gates became unnecessary. Accordingly, they removed the gates from the easement. There had been issues with Redwine’s cattle getting free from her property, but Mrs. Turner stated that the cattle never got through the fence on the south side of the easement. Mr. Turner conceded that the fence might have been ugly, but he stated that it kept horses and cows on the property.

Mrs. Turner stated that problems began in December 2009 when she received a letter from Redwine’s attorney, accusing the Turners of trespassing. There were other heated disputes involving the Turners and Coursey as well, including one dispute that led to Mrs. Turner’s son being charged with terroristic threatening.

In January 2010, someone put a gate back on the easement, and Redwine sent the Turners a key to the gate. The Turners stated that the gate caused a hardship on them. The gate is located close to a county road. They had to use four-wheel drive to cross the easement. Mrs. Turner described one instance where she stood outside for fifteen minutes trying to unlock the gate. Mr. Turner slipped on the ice one day and busted his mouth on the gate. Mrs. Turner was also concerned about the delay that would be caused by the gate if she ever had to take her grandson, who has asthma, to the hospital. After these incidents, the Turners talked to their attorney, filed this lawsuit, and removed the gate.

The Turners were also concerned about Coursey’s use of the easement. Mrs. Turner testified that Coursey used a backhoe to move big bales of hay (for feeding his cows). This |4caused ruts and other damage to the easement. Mrs. Turner opined that there was no reason to use the road to dump hay on the south side of the fence.

Redwine testified that, when she purchased the property, there were gates installed on the easement and that the gates were consistently closed. She denied that there was a fence along the south side of the easement at that time. Her plan was to put livestock on the property, but she did not put the livestock on the property until there was a boundary fence installed on the backside of the property (where it meets the Turners’ land). Redwine recalled an occasion where the Turners were on their property. They were retrieving horses that had escaped from their property, and Redwine told them that she had shooed the horses back to their (the Turners’) property. Mrs. Turner then told Redwine that she talked to Redwine’s predecessor about putting up a fence. Mrs. Turner and Redwine discussed the matter, and Redwine agreed to allow them to put up a fence as long as it was the same quality of fence she and Coursey were constructing on the border between the Redwine and Turner properties. Redwine claimed that livestock had escaped through the Turners’ fence several times, most recently in April 2009. With regard to using a backhoe on the easement, both Redwine and Coursey testified that it was the only way they could feed the cattle on the property. Redwine denied that Coursey’s backhoe did any damage to the easement. When asked if it would be fair to ask him to maintain the easement, Coursey stated that he had done no more damage than a normal person would. He also believed that he and Redwine should not be responsible for maintaining their own property.

|sThe court ruled from the bench after hearing testimony from the parties. First, it reaffirmed the Turners’ right to use the easement for ingress and egress. Regarding the fence, the court stated:

Now, the question of whether there is a necessity for a fence along the south side, in this case, the south side of that twenty foot easement comes down to what is reasonable under these circumstances. If the south fence is not there at all, since Ms. Redwine runs livestock on her property, that’s going to require a gate at both ends of the easement, at the county road and then again where the easement enters the Turner property. Because of various reasons, such as the proximity of where the gate was to the county road, that makes it difficult to get out and open the gate without your vehicle sticking out in the road. In bad weather it makes it sometimes treacherous to do so, and, then again when you get up to the other gate they’ve got to do the same thing. This is where they live, and it is probably not reasonable to require somebody to go through two gates that they have to get out and then open, go through, get out again and close, and do that two times, so that means exiting your vehicle twice and somebody standing out in the inclement weather and closing the gate behind them and all of that, that’s— we’ve got to figure out a way to allow that not to happen, and the way for that to work is for there to be a fence along the south side.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 866, 2011 Ark. App. 251, 2011 Ark. App. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redwine-v-bobby-arkctapp-2011.