Arkansas County Bank, Dewitt v. Pin Oak Hunting Club, Inc.

Cite as 2022 Ark. App. 314
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-303

ARKANSAS COUNTY BANK, DEWITT, Opinion Delivered September 7, 2022
AS TRUSTEE UNDER THE LAST WILL
AND TESTAMENT OF GODFREY APPEAL FROM THE ARKANSAS
THOMAS; ARKANSAS COUNTY COUNTY CIRCUIT COURT,
BANK, DEWITT, AS TRUSTEE OF THE SOUTHERN DISTRICT
GODFREY THOMAS TESTAMENTARY [NO. 01DCV-18-31]
TRUST; GODFREY THOMAS
FOUNDATION, INC.; TATE HONORABLE DAVID G. HENRY,
PFAFFENBERGER; LES JUDGE
PFAFFENBERGER; TURNER FARMS
IV; TURNER FARMS PARTERNSHIP; REVERSED ON DIRECT APPEAL;
AND ROGER TURNER AFFIRMED ON CROSS-APPEAL

APPELLANTS/CROSS-APPELLEES

V.

PIN OAK HUNTING CLUB, INC.

APPELLEE/CROSS-APPELLANT

STEPHANIE POTTER BARRETT, Judge

This case concerns the ownership of real property in Arkansas County on which a

levee is situated and whether appellee, Pin Oak Hunting Club, Inc. (Pin Oak), is entitled to

a prescriptive easement across property owned by Thomas entities appellants and leased by

Turner tenant appellants to access a portion of property owned by Pin Oak. Appellants

Arkansas County Bank, DeWitt, as Trustee under the Last Will and Testament of Godfrey
Thomas and as Trustee of the Godfrey Thomas Testamentary Trust; Godfrey Thomas

Foundation, Inc. (collectively “Thomas entities”); Tate Pfaffenberger; Les Pfaffenberger;

Turner Farms IV; Turner Farms Partnership; and Roger Turner (collectively “Turner

tenants”), appeal from the Arkansas County Circuit Court’s finding that Pin Oak established

a prescriptive easement; alternatively, they argue that if an easement has been established, it

should be an easement in gross, not appurtenant, and specific limitations consistent with

prior use should have been imposed. On cross-appeal, Pin Oak argues that the circuit court

erred in finding that the Thomas entities adversely possessed property owned by Pin Oak

and in denying Pin Oak an easement by necessity over the Thomas entities’ property. We

reverse on direct appeal and affirm on cross-appeal.

Pin Oak owns real property located in sections 14 and 15, township five south, range

four west, in the southern district of Arkansas County, Arkansas. The Thomas entities own

real property lying north and east of, but adjacent to, the Pin Oak property. The Turner

tenants lease the Thomas entities’ property at issue in this appeal. A levee runs roughly along

the southern border of the Thomas entities’ property and the northern border of Pin Oak’s

property. The controversy began in late 2016, when the Pfaffenberger brothers, who

subleased a portion of the Thomas entities’ property from Roger Turner, a tenant of the

Thomas entities, blocked the road and levee Pin Oak used to access the Hot Springs Club

property, which it purchased in 1989, with earthen berms across the roadway and levee road,

and, according to Pin Oak, continued to interfere with its right to use and access its property

by blocking access to the levee and road that had been used by Pin Oak for many years. A

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survey commissioned by Pin Oak and the Thomas entities revealed that a portion of the

levee was situated on Pin Oak property.

Pin Oak filed suit against the Thomas entities and the Turner tenants, requesting a

declaratory judgment that it was the legal owner of the levee and established roadway;

alleging the boundary had been established by acquiescence as the center of the levee; and it

had established an easement by prescription to travel over the levee and on a trail leading to

the Hot Springs Club property, or alternatively, it was entitled to an easement by necessity

to travel over the levee system and the trail to the Hot Springs Club property. The Thomas

entities and the Turner tenants filed a counterclaim alleging that the levees were built wholly

on the Thomas entities’ property approximately fifty feet from the property boundary line

and seeking to quiet title in the Thomas entities; they asserted that the levees had been

maintained since the 1960s by the Turner tenants; that permission to use the levee for access

to Pin Oak property had been requested and denied multiple times; and that while a survey

suggested a portion of the southern levee crossed the boundary onto Pin Oak property, the

accuracy of the survey was disputed by both parties. Alternatively, the Thomas entities and

the Turner tenants claimed that they had been in actual possession of the levees and the real

property they were built on since at least 1962; and that the possession was open, continuous,

exclusive, and with the intent to hold the real property adversely against anyone who may

claim to be the owner. The Thomas entities alleged that the Turner tenants had

continuously and openly repaired and maintained the levees since at least 1962, and the

maintenance work was completed on the entire levee. The Thomas entities also claimed that

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they had established a boundary by acquiescence as the southern base of the levee on the

southern end of the Thomas entities’ property because they had been solely responsible for

maintaining and repairing the levee, for mowing the levee, and keeping the pathway on the

levee usable for over fifty years.

After a bench trial, the circuit court filed a letter opinion on March 19, 2020, and

filed an order on December 2, 2020, incorporating the letter-opinion findings into the order.

The circuit court found that Pin Oak had established a prescriptive easement for ingress and

egress across the real property owned by the Thomas entities in order to access its property;

the use of the easement would be consistent with prior use; and the easement was

appurtenant. The circuit court stated in its letter opinion that its decision on this issue was

based on the fact that it found testimony of several longtime Pin Oak members concerning

the long-time use of the levee and trail to the Hot Springs Club property on the issue of the

prescriptive easement to be credible, while finding the testimony of Tate and Les

Pfaffenberger, subtenants, to be inconsistent.

The circuit court further found that the Thomas entities established ownership of the

levee system located along the previously surveyed northern boundary of Pin Oak’s property,

and to the extent any of the levee fell within the previously surveyed boundaries of Pin Oak’s

section 14 or 15 property, the Thomas entities had established ownership of the levee by

adverse possession. The circuit court found that evidence at trial indicated Godfrey Thomas

had built the levee system as early as the 1940s, and he and his successors had treated the

levee system as their own since that time. All other claims of the parties were dismissed with

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prejudice. The Thomas entities and Turner tenants filed their notice of appeal on December

11, 2020, and Pin Oak filed its notice of cross-appeal on December 18, 2020.

I. Standard of Review

Matters sounding in equity are reviewed by this court de novo on the record with

respect to questions of both law and fact, but a circuit court’s findings of fact will not be

reversed unless they are clearly erroneous. Strange v. Mary K. Reed Tr., 2014 Ark. App. 333.

A circuit court’s finding of fact is clearly erroneous when, despite supporting evidence in the

record, the appellate court, viewing all of the evidence, is left with a definite and firm

conviction that a mistake has been committed. Id. In reviewing a circuit court’s findings of

fact, the appellate courts give due deference to the circuit court’s superior position to

determine witness credibility and the weight to be accorded each witness’s testimony. Id.

II. Direct Appeal

The Thomas entities and Thomas tenants first argue that the circuit court erred when

it found that Pin Oak established a prescriptive easement. In Clark by and Through Clark

v. Eubanks, 2019 Ark. App. 49, at 3–4, 570 S.W.3d 506, 508–09 (citations omitted), this

court explained the elements required for a prescriptive easement:

A prescriptive easement may be gained by one not in fee possession of the land
by operation of law in a manner similar to adverse possession. In Arkansas, it is
generally required that one asserting an easement by prescription 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. The statutory period of seven
years for adverse possession applies to prescriptive easements.

Overt activity on the part of the user is necessary to make it clear to the owner
of the property that an adverse use and claim of right are being exerted. Mere

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permissive use of an easement cannot ripen into an adverse claim without clear
action, which places the owner on notice. Some circumstance or act in addition to,
or in connection with, the use that indicates the use was not merely permissive is
required to establish a right by prescription. The plaintiff bears the burden of
showing by a preponderance of the evidence that there had been adverse, not
permissive, use of the land in question.

Like adverse possession, “prescriptive easements . . . are not favored in the law, since they

necessarily work corresponding losses or forfeitures in the rights of other persons.” Pop-A-

Duck, Inc. v. Gardner, 2022 Ark. App. 88, at 9, 642 S.W.3d 220, 227 (quoting Carson v. Cnty.

of Drew, 354 Ark. 621, 625, 128 S.W.3d 423, 426 (2003)). Whether use is adverse or

permissive is a factual question. Anita G., LLC v. Centennial Bank, 2019 Ark. App. 217, 575

S.W.3d 561. There is a presumption of permissive use if land is unenclosed and

undeveloped; however, this presumption can be rebutted if the user shows hostility of

conduct in the usage of the land. Id. In Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d

281 (1954), our supreme court reasoned,

The reason for the rule that a passageway over unenclosed and unimproved
land is deemed to be permissive is sound and also easily understandable. . . . It
assumes that the owner of such land in many instances will not be in position to
readily detect or prevent others from crossing over his land, and, even if he did, he
might not enter any objection because of a desire to accommodate others and because
such usage resulted in no immediate damage to him. Also in such instances the
landowner would probably have no reason to think the users of the passageway were
attempting to acquire any adverse rights.

Use of a roadway over unenclosed and unimproved land is deemed to be permissive and not

adverse to the owners of the land. Burdess v. Ark. Power & Light Co., 268 Ark. 901, 597

S.W.2d 828 (1980). Although permissive use of a roadway can ripen into adverse use, there

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must be some overt activity on the part of the user to make it clear to the owner of the

property that an adverse use and claim of right is being exerted. Id.

Although the structure in the present case is a levee and a pathway to the Hot Springs

Club property rather than an actual roadway, the analysis is still the same. While the circuit

court did not specifically state in its order that the land was unenclosed and unimproved, it

cannot seriously be argued that it was anything else. Therefore, there is a presumption that

the use of the levee was permissive. The question then becomes whether Pin Oak rebutted

the permissive-use presumption. Although the circuit court did not specifically state that it

found Pin Oak had rebutted the presumption, such a finding can be inferred because it

found that Pin Oak was entitled to a prescriptive easement. The circuit court is presumed

to know and follow the law. C.J.M. v. State, 2017 Ark. App. 477, 531 S.W.3d 412.

Testimony at trial indicated that the vegetation and trees were thick, and none of the

Thomas tenants remembered seeing Pin Oak members on the levee. The Pin Oak members

who testified all stated that they never asked permission to use the levee as a passageway.

They all believed the levee was the property boundary line, but after Pin Oak purchased the

Hot Springs Club property in 1989, Pin Oak members used the levee for access to the Hot

Springs Club property when the water levels were too low to access the property by boat

because it was the only reasonable way to gain entry to that property. One member testified

that there was a defined path to the Hot Springs Club property. Another member testified

that he was told that the Hot Springs Club members used the levee to access its property,

and another member testified that the Hot Springs Club members accessed the property by

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using the levee access because there was no boat access at that time. Pin Oak members

testified that they used the levee every weekend during duck-hunting season when the water

was not high enough to use a boat, they deer hunted and fished on the property during the

year, and they also performed maintenance on boats and blinds during the off season.

At trial, Tate Pfaffenberger testified that he never saw anyone on the levees.

However, when confronted with his deposition testimony that it was obvious that Pin Oak

members were using the levees and the road because of ATV tracks, he did not remember

saying that. Les Pfaffenberger testified that he never saw anyone on the levees when he was

deer and duck hunting until 2016, when he saw signs of trespassing and placed berms on

the levee. On cross-examination, Les denied saying in his deposition that he had noticed

four-wheeler tracks on the levee from time to time over the last twenty years.

As previously stated, there is a presumption that use of the levee was permissive, and

that Pin Oak had the burden to rebut that presumption. Based upon the record on appeal,

we hold that Pin Oak failed to rebut the presumption that such use was permissive and not

adverse. In reaching our conclusion, we are mindful that the circuit court found the

testimony of the Pin Oak members credible and the Pfaffenberger brothers’ testimony

inconsistent. Despite the credibility finding, Pin Oak did not rebut the presumption that

the use of the levee was anything but permissive. There was no overt activity on the part

of Pin Oak members to clearly indicate to the Thomas entities or the Turner tenants that

they were using the property adversely or exerted a claim of right to the property other than

a permissive use of the levee to access the Hot Springs Club property. The finding that Pin

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Oak was entitled to a prescriptive easement was clearly erroneous. For this reason, we reverse

the circuit court’s finding that Pin Oak was entitled to a prescriptive easement over the

Thomas entities’ property.

The Thomas entities and Turner tenants alternatively argue that if the prescriptive

easement is affirmed in Pin Oak’s favor, such an easement should be in gross rather than

appurtenant, and the circuit court erred in not imposing specific limitations on the

easement’s use rather than granting a prescriptive easement “consistent with prior use.”

Given our holding that the circuit court clearly erred in granting Pin Oak a prescriptive

easement, it is unnecessary to address these arguments.

III. Cross-Appeal

Pin Oak argues on cross-appeal that the circuit court erred in finding that the Thomas

entities established adverse possession of the portions of the levee system that the

commissioned survey indicated were on Pin Oak’s property. We hold that the circuit court’s

decision on this matter was not clearly erroneous. Adverse possession is governed by both

common law and statute. The common-law elements of adverse possession require a

claimant to show he has been in possession of the property in question continuously for

more than seven years, and his possession has been visible, notorious, distinct, exclusive,

hostile, and with the intent to hold against the true owner. Muldrew v. Duckett, 2013 Ark.

App. 304. Whether possession was adverse to the true owner is a question of fact; proof that

the claimant’s acts of ownership are of such a nature as one would exercise over his own

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property and would not exercise over the land of another is ordinarily sufficient proof of

adverse possession. Id.

Pin Oak first argues that the Thomas entities failed to establish color of title and pay

taxes on the property they now claim adversely. In 1995, the General Assembly added a

statutory requirement1 for proof of adverse possession that the claimant prove color of title

and payment of ad valorem taxes on the subject property or contiguous property for a period

of seven years; however, if the claimant’s rights to the disputed property vested prior to 1995,

he need not comply with the statutory change. Id.

The levee at issue here was built by Godfrey Thomas sometime in the early 1940s,

and Roger Turner began leasing the land in the early 1960s. Turner’s lease and the

Pfaffenberger brothers’ sublease required them to perform maintenance on the levees, such

as mowing, repairing washouts of the levee, and removing downed trees. Warren Jennings,

Jr., president and CEO of Arkansas County Bank, which is the trustee of Godfrey Thomas’s

will and testamentary trust, testified that Godfrey Thomas Farms bore the expense of any

major repairs on the levee, such as blown-out risers or rusted-out standpipes. The Pin Oak

members who testified as well as the Pin Oak caretaker all stated that they did not maintain

any portion of the levee at issue here, although there was testimony that the Pin Oak

members maintained another levee belonging to them. The Thomas entities and the Turner

tenants treated the levee as their own property, as they were the only entities maintaining

1
Ark. Code Ann. § 18-11-106 (Repl. 2015).

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the levee. Because there was no testimony that Pin Oak ever maintained the levee—only the

Thomas entities and the Turner tenants—since at least the early 1960s, the seven-year period

for adverse possession ran long before 1995; therefore, the Thomas entities are not required

to prove color of title and payment of taxes.

Pin Oak also argues that Godfrey Thomas Farms paid the taxes on the Thomas

entities’ real property, but it was not a party to the dispute. However, the right of adverse

possession vested long before the 1995 statutory amendment requiring the payment of taxes.

Pin Oak also argues that the circuit court erred in failing to grant it an easement by

necessity. We hold that the circuit court’s order was not clearly erroneous in denying Pin

Oak’s request. To establish an easement by necessity, a party must prove (1) that, at one time,

one person held title to the tracts in question; (2) that unity of title was severed by conveyance

of one of the tracts; and (3) that the easement is necessary in order for the owner of the

dominant tenement to use his land, with the necessity existing both at the time of the

severance of title and at the time the easement is exercised. Young v. Robertson, 2015 Ark.

App. 681, 476 S.W.3d 856.

Pin Oak met requirements one and two by introducing into evidence deeds showing

that all the property was at one time owned by the same person and that unity of title was

severed. However, we hold that Pin Oak’s argument fails on the third requirement to prove

an easement by necessity—that the easement is necessary in order for Pin Oak to use its land.

Pin Oak argues that there is no reasonable access to the Hot Springs Club property

except by boat when the water is high enough or over the Thomas entities’ property when

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the water is too low. Pin Oak correctly asserts that our supreme court has held that when

a parcel of land is accessible by a navigable body of water but not by road and motor

vehicle, the accessibility via water does not defeat a showing of necessity. Riffle v. Worthen,

327 Ark. 470, 939 S.W.2d 294 (1997). However, the possibility that alternate routes to

the property exist that might be more inconvenient does preclude the finding of an

easement by necessity. Young, supra; see also Horton v. Taylor, 2012 Ark. App. 469, 422

S.W.3d 202 (holding that possibility of another, although inconvenient, route to

appellants’ property precluded establishment of easement by necessity); Berry v. Moon,

2011 Ark. App. 781, 387 S.W.3d 306 (holding that possibility of another route to

property that had not been fully investigated precluded establishment of easement by

necessity); Orr v. Orr, 2009 Ark. App. 578 (denying easement by necessity on conflicting

evidence that there were possibilities of alternative routes that were not as convenient as

the one sought to be established by an easement by necessity). Pin Oak member Joel Fox

admitted that Pin Oak might be able to build a slightly elevated path that would permit

the members to access all of their hunting holes by four-wheelers during low-water

periods—if a permit could be obtained from the U.S. Army Corp of Engineers—but

argued it would not be feasible. Because there were possibly other routes to the Hot

Springs Club property that Pin Oak had not investigated, we hold that the circuit court’s

order denying Pin Oak’s request for an easement by necessity was not clearly erroneous.

Reversed on direct appeal; affirmed on cross-appeal.

KLAPPENBACH and HIXSON, JJ., agree.

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Hyden, Miron & Foster, PLLC, by: Lyle D. Foster, Guy W. Murphy Jr., and Sam Patterson;

and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants/cross-appellees.

Ark Ag Law, PLLC, by: J. Grant Ballard, for appellee./cross-appellant.

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