Dray v. Likens

2013 Ark. App. 118

TERRY DRAY AND TONIA D. DRAY APPELLANTS v. JUSTIN L. LIKENS AND ERIN R. LIKENS APPELLEES

No. CA12-633

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered February 20, 2013

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT,

[NO. CIV-2010-597]

HONORABLE MICHAEL MEDLOCK,

JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellants Terry and Tonia Dray appeal a Crawford County Circuit Court order granting an easement to appellees Justin and Erin Likens for a water line across their property. We affirm.

Prior to 2001, Mid-Ark Property Management, Inc., acquired title to a parcel of real property in Crawford County, Arkansas, and platted the property into thirteen separate tracts. On October 29, 2001, the Likenses entered into a purchase-and-sale agreement with Mid-Ark to purchase approximately half of Tract 13. The other half of Tract 13 was purchased by Kyu Shun and Selena Lee, who were friends of the Likenses. The real estate contracts for both the Lees and the Likenses stated that Mid-Ark would grant a waterline easement across Tract 10 to Tract 13. The Lee deed contained the easement across Tract 10. The Likens deed did not. Both Mid-Ark and the Likenses agree that the failure to include the easementin the Likens deed was the result of a mutual mistake.

That same month, Mid-Ark paid the City of Dyer for a two-inch water line and meter hookups for the Lee and Likens properties. The meters were placed at the corner of Tract 7. Shortly thereafter, the Likenses and the Lees dug a single trench across Tract 10 and laid water lines to both properties.

In February 2002, Mid-Ark sold Tract 10 to David Henson, subject to all right of ways, easements, restrictions, and previous mineral reservations, if any. Henson conveyed the property to the Drays in September 2003. The Drays were unaware that the Likenses had a water line across their property until a neighbor accidentally dug it up.

On September 23, 2010, the Drays filed suit against the Likenses for a declaratory judgment denying that the Likenses had any legal right to the property, for trespass, and for removal of the Likenses' water lines from the property. The Likenses answered, denying the allegations and claiming that the action was malicious in nature and was intended as retribution for their denial of the Drays' request for an easement for an electric line across their property. The Likenses counterclaimed, alleging their entitlement to a prescriptive easement, an implied easement, or an easement by necessity. In the alternative, the Likenses requested reformation of their deed to include the easement originally intended by the parties.

A hearing was held on January 31, 2012. After hearing the testimony of the witnesses and reviewing the evidence submitted, the trial court ruled in favor of the Likenses' claims and defenses. The trial court granted the easement, finding that the Likenses had proved thatthey were entitled to either an easement by implication or a prescriptive easement for the water line. The court further found that the Drays' property was not burdened by the existence of the Likenses' waterline because it was virtually indistinguishable from, and was simultaneously installed in the same trench with, the water line of a neighbor, who had a valid recorded easement. The Drays appeal this order.

The Drays argue that the trial court erred in awarding an easement because (1) they were bona fide purchasers for value without notice who recorded first thereby defeating a claim for reformation; (2) an underground pipe, by definition, cannot be open and notorious, thereby defeating a claim for a prescriptive easement; (3) the servitude was not established before unity of title was severed thereby defeating a claim for an easement by implication; and (4) the water line was not necessary to the enjoyment of the property thereby defeating a claim for an easement by necessity.

We review equity cases de novo on the record but will not reverse a finding of the trial court unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id.

The Drays first argue that they were bona fide purchasers for value defeating a claim for reformation. A deed to property can be reformed even when the holder of record legal title resists it. Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement arenot correctly reflected in the written instrument purporting to...