Wilson v. Johnston

990 S.W.2d 554, 66 Ark. App. 193, 1999 Ark. App. LEXIS 254
CourtCourt of Appeals of Arkansas
DecidedApril 28, 1999
DocketCA 98-1015
StatusPublished
Cited by8 cases

This text of 990 S.W.2d 554 (Wilson v. Johnston) 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
Wilson v. Johnston, 990 S.W.2d 554, 66 Ark. App. 193, 1999 Ark. App. LEXIS 254 (Ark. Ct. App. 1999).

Opinion

Margaret Meads, Judge.

This case involves a dispute over a private-way easement. On May 8, 1963, the John Matthews Company filed of record in Pulaski County, Arkansas, a replat of Lot 16, Block 49, Lakewood, dividing it into Lots 16 and 17, and a plat and bill of assurance of Lot 17, Block 49, Lakewood that contained the following language:

Grantor herein, its successors and assigns, reserves a private way over and across the extreme northwest portion of Lot 17, Block 49, LAKEWOOD, which private way is more particularly described as, having a frontage of 29 feet, more or less, on the southeast fine of Shore Point Road, extending from Shore' Point Road easterly 16.5 feet along the south fine of said Lot 5, Block 50, thence southerly 56.2 feet across the west part of said Lot 17, Block 49, to the northeast corner of said Lot 16, Block 49, thence northwesterly 55 feet along the northeast line of said Lot 16, Block 49, to Shore Point Road, all as shown on said attached plat, which private way, being a part of said Lot 17, Block 49, LAKEWOOD, shall be forever appurtenant to and may be used as a private way or private road exclusively by the owners of said Lots 16 and/or 17, Block 49, LAKEWOOD, their heirs, successors and assigns forever.

Appellant, Viola Wilson, purchased Lot 16 in 1964 and used part of the common private way to construct a concrete driveway. Several years later, appellees, Fremont and Altha Johnston, purchased Lot 17 and, in constructing their own driveway, added on to the existing concrete drive appellant had built in the private way. A strip of land included in the private way, roughly ten feet wide and thirty feet long, was not paved and remains in its natural state. This strip of land (the “property”) is the focus of appellant’s lawsuit.

Over the years, appellant used the property to gain access to her backyard for various tasks such as moving sod and firewood to the backyard, delivering lumber for a shed, servicing the air conditioner, and bringing her riding lawn mower to the front yard. Appellees occasionally objected to such use and had asked that parked vehicles be moved off the property. Due to the ruts caused by service trucks and the frequent muddy condition of the property, appellant decided that she would pave the property. However, because appellees objected to her use of the property and to the paving, appellant filed a complaint for declaratory judgment and injunction in Pulaski County Chancery Court to determine her rights with regard to the property. She also requested that she be allowed to pave the remaining portion of the private way and to extend the privacy fence already in existence on her property.

After a hearing, the chancellor determined that although both parties used the property for driveways to their respective homes, for thirty-one years the property had been maintained as a “buffer,” and appellant could not utilize the property for anything other than a “buffer.” Appellant’s requests to pave the property and to extend her privacy fence were denied. Moreover, the chancellor found that appellees have the responsibility of maintaining the “buffer” and ordered that they could not take any action that would detrimentally affect appellant’s property. Appellant contends on appeal that the chancellor erred in narrowing the width of the private-way easement that was defined by metes and bounds in the recorded plat.

Although this court tries chancery cases de novo on the record, we will not reverse unless we determine that the chancery court’s findings of fact were clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). Upon our de novo review, we hold that the chancellor was clearly erroneous in restricting appellant’s right to use the entire area of the easement as a private way.

An easement is a property right and as such is entitled to all the constitutional safeguards afforded to other property rights. Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969). In general, an express easement may be created by a written instrument. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987).

The grant of an easement normally will control its location if the location is specified therein. The grant should identify an easement’s location with specificity. In other words, the description of the easement requires such that a surveyor can go on the land and locate the easement from such description. . . .

25 Am. JuR.2d, Easements and Licenses § 74 (1996).

In addition, an appurtenant easement runs with the land and serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998). Thus, in this case we are concerned with an express easement, created by the metes and bounds description contained in the bill of assurance filed of record for Lot 17, Block 49, Lakewood. Because the land upon which the private way is located is owned by the appellees, their land is the servient tenement, and appellant’s private way is the dominant tenement.

Appellant argues that the chancellor erroneously applied the law pertaining to undefined easements in reaching his decision that appellant was not allowed to use the ten- by thirty-foot strip of property included in her private way; we agree.

Although we acknowledge that an easement that is not described by metes and bounds or defined with specificity is subject to “lines of reasonable enjoyment,” see, e.g., Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997), that is not the situation in the case at bar. Here, there is an express easement specifically established by metes and bounds for use as a private way by both appellant and appellees, and the chancellor can neither diminish the area nor restrict the usage of this private way.

The chancellor also clearly erred in taking into consideration the fact that the area had not been constantly used by appellant as a means of ingress and egress to her backyard and in determining that the area was a “buffer.” We agree with the reasoning of the South Dakota Supreme Court in Salmon v. Bradshaw, 173 N.W.2d 281 (S.D. 1969), wherein the court held that owners of the servient tenement could not restrict the dominant tenement owner’s use of an express easement. The court ruled:

Plaintiffs are accordingly entided to the free and uninterrupted use and enjoyment of the entire easement area for the clearly expressed purposes of the grant. The includes the “last inch as well as the first inch.” It is immaterial whether or not plaintiffs made use of the full rights of the easement area in the past.

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Bluebook (online)
990 S.W.2d 554, 66 Ark. App. 193, 1999 Ark. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-johnston-arkctapp-1999.