Phillip J. Jackson v. Earl Ross Downs and Raymond Abramson

Cite as 2022 Ark. App. 17
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
SPECIAL DIVISION
integrity of this document
No. CV-21-125
2023.08.09 11:34:53 -05'00'
2023.003.20244
Opinion Delivered January 12, 2022
PHILLIP J. JACKSON
APPEAL FROM THE MONROE
APPELLANT COUNTY CIRCUIT COURT
[NO. 48CV-19-114]
V.
HONORABLE CHALK S.MITCHELL,
EARL ROSS DOWNS AND JUDGE
RAYMOND ABRAMSON
AFFIRMED
APPELLEES

ANNABELLE IMBER TUCK, Special Judge 1

Phillip Jackson brings this appeal from a judgment of the Monroe County Circuit

Court awarding Raymond Abramson an easement across his property. Specifically, the

circuit court found that Abramson had acquired an easement by necessity, an easement by

implication, and a prescriptive easement across Jackson’s property. We affirm the circuit

court’s finding that Abramson had acquired a prescriptive easement across Jackson’s

property.

Since 1991, Raymond Abramson has owned ninety-three acres of rural, undeveloped

land (the Abramson Property) in Monroe County. This land has been in the Abramson

family since 1895. It is heavily wooded and primarily used recreationally for hunting, hiking,

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Appellee Raymond Abramson is a judge on the Arkansas Court of Appeals. For that
reason, all current court of appeals judges have recused themselves from this case, and this
appeal has been decided by a special panel of retired judges.
fishing, and timber production. In June 2019, Abramson leased his property to appellee Earl

Downs for hunting purposes, and thereafter Downs visited the property frequently.

Adjacent to Abramson’s property is 240 acres of land owned by appellant, Phillip

Jackson, which he primarily uses for farming. Jackson’s land shares a property line with

Abramson’s on the north, east, and south. Jackson obtained title to his land by warranty

deed in 1986.

The dispute in this case arose after Earl Downs was denied access to the Abramson

Property in October 2019. On October 31, Downs went to visit the Abramson Property

to prepare for a hunt. As he did every time before, he planned on using the road that crossed

over Jackson’s property. However, Jackson had barricaded the road with a gate and an

excavator, effectively preventing Downs from accessing the Abramson Property from the

east.

Downs subsequently filed a complaint alleging that he had an easement by

prescription, necessity, or implication, and he requested an “Ex-Parte Temporary

Injunction”against Jackson seeking access to the Abramson Property for hunting purposes.

The circuit court granted the Ex-Parte Temporary Injunction without a hearing and

subsequently served it on Jackson. Thereafter, Jackson filed a motion to dismiss and

requested a hearing. Downs later filed an amended complaint, which added Raymond

Abramson as a party.

On February 27, 2020, the circuit court held a trial on the amended complaint. At

the trial, Abramson testified about his family’s use of the blocked road both prior to and

during his ownership. He said that the blocked road was the only road his family and others

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had ever used to access the property. He indicated that his father was a farmer who used to

rent what is now Jackson’s property and that, as a child, he would ride out to the farm with

his older brother. He testified that he even remembers driving a tractor out there.

Further, Abramson testified about how he used the blocked road during his

ownership, which began in 1991. He said that he goes to the land “at least once a year if

not multiple times every year, some years more than others.” He testified that he goes

whenever he wants and he waves to people in Jackson’s fields, and they wave back.

Abramson said that each fall, he and his wife enjoy walking the property and viewing the

wildlife. Abramson conservatively estimated that he has been to the property around one

hundred times.

Abramson offered evidence that others use the road as well. He said that Pat Gerlach,

who leased the property for hunting purposes from 2008 to 2018, used the blocked road to

access the property. He said that scrap dealers had traversed the blocked road when they

came to purchase his father’s old farming equipment and that loggers had used the blocked

road to haul timber.

Jackson testified that the road he blocked existed when he purchased his land in 1986.

However, he described the road as being nothing more than a trail that was mostly impassable

except by tractor. He said that, over the years, he had improved the road so that he could

better work the land for farming. He testified that he made these improvements for his own

benefit and without consultation with others in the area. He further testified that in 1995

or 1996, he posted no “trespassing signs” and installed a cable across the road because “[he]

was having a bunch of people steal stuff and tearing [his] road up.” Moreover, Joe Jackson,

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who is Phillip Jackson’s son, testified that thirty-gallon barrels were also placed in the road.

Downs testified about his use of the blocked road. He said that he accessed the

Abramson Property via that road at least fifty times. He said that on two or three occasions,

he waved at people in Jackson’s fields. Moreover, Downs testified about a courtesy phone

call with Joe. He said that five or six days before the road was blocked, he called Joe to

introduce himself. He told Joe that he was leasing the Abramson Property, and he also

provided him with a description of his truck. Joe told Downs that he knew somebody had

been coming and going because he could see the tracks.

Pat Gerlach, who obtained the hunting lease immediately prior to Downs, testified

that he also utilized the blocked road. Gerlach said that he first used the road in 1968 when

he was helping farm the land as a teenager. He further stated that he used the road to haul

deer stands in and out of the Abramson Property when he hunted the land from 2008 to

2018.

Following the hearing and after visiting the property in person, the court took the

case under advisement. Both parties submitted posthearing briefs and proposed findings of

fact and conclusions of law. On November 4, 2020, the circuit court issued an order finding

that Abramson had acquired a prescriptive easement, an easement by implication, and an

easement by necessity over Jackson’s land. The circuit court also ordered that Downs had a

right to use the easement. Jackson now appeals, challenging the circuit court’s findings.

This court reviews equity matters de novo on the record but will not reverse a finding of

the lower court unless it is clearly erroneous. See Owners Ass’n of Foxcroft Woods, Inc. v.

Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). A finding is clearly erroneous when,

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although there is evidence to support it, the reviewing court on the entire evidenceis left

with a definite and firm conviction that a mistake has been committed. Id. at 361, 57 S.W.3d

at 192. In reviewing a circuit court’s findings, we give due deference to that court’s superior

position to determine the credibility of the witnesses and the weight to be accorded to their

testimony. Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). Disputed facts

and determinations of witness credibility are within the province of the fact finder. Id. at

624−25, 128 S.W.3d at 425.

Jackson challenges the circuit court’s finding that Abramson had established an

easement by prescription. One asserting an easement by prescription must show by a

preponderance of the evidence that his or her use has been adverse to the true owner and

under a claim of right for the statutory period. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d

903 (1998). Where there is usage of a passageway over land, whether it be by permission or

otherwise, if that usage continues openly for seven years after the landowner has actual

knowledge that the usage is adverse to his interest or where the usage continues for seven

years after the facts and circumstances of the prior usage are such that the landowner would

be presumed to know the usage was adverse, then such usage ripens into an absolute right.

Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). A prescriptive easement,

once attached, is permanent and irrevocable. Carson, 354 Ark. at 626–27, 128 S.W.3d at

427. For reversal, Jackson argues that the circuit court erred in finding that Abramson had

established a prescriptive easement because Abramson failed to prove his use was adverse to

Jackson.

The crux of Jackson’s argument is that because the disputed land is wild, unenclosed,

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and unimproved, there is a presumption that Abramson’s use of the land was permissive.

Our supreme court has held that use of wild, unimproved land such as Jackson’s is presumed

permissive until the persons using the land for passage, by their open and notorious conduct,

demonstrate to the owner that they are claiming a right of passage. Carson, 354 Ark. at 626,

128 S.W.3d at 426–27. This must come in the form of some overt activity that puts the

owner on notice that the use is adverse. It is Jackson’s position that Abramson’s overt

activities were not sufficient to overcome this presumption. However, Jackson’s argument

fails to acknowledge that permissive use can ripen into adverse use when the use continues

openly for seven years after the landowner or his predecessors know the use is adverse or if

they, under the circumstances, are presumed to know the use is adverse.

After reviewing the evidence, we hold that the circuit court did not clearly err by

finding that Abramson rebutted the presumption that his use was permissive and that Jackson

knew or should have known that Abramson was using the road under a claim of right.

Abramson testified that he has been using the road for over fifty years. Likewise, Gerlach

testified that he used the road back in 1968. From this testimony, it is clear that the road

existed prior to Jackson’s purchase of his property in 1986 and that people were using it.

Further, Jackson testified that when he bought his property in 1986, he could tell

that people had been using the road because it was “wallowed out.” It was at this point that

Jackson was put on notice that somebody was using the road. Jackson did nothing to stop

this use until 1995 when he began posting his property and blocking the road with a cable

and plastic barrels. Even after Jackson posted his property and blocked the road with a cable

and barrels, Abramson’s use was open and continuous. Abramson testified that the posted

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signs “were a non-issue to me.” He ignored the signs, cable, and barrels; continued to use

the road; and continued to have his lessees use the road for a period of over twenty years.

Considering Abramson’s use, his lessees’ use, and the length of time that passed, Jackson

knew or should have known that Abramson’s use was adverse. Given these circumstances,

we cannot say that the circuit court’s findings are clearly erroneous.

Having reached the conclusion that Abramson is entitled to an easement by

prescription, we need not consider Jackson’s arguments regarding whether the circuit court

erred in its finding of an easement by necessity or an easement by implication.

Affirmed.

Special Judges GARY ARNOLD and SAM BIRD agree.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellant.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellees.

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