Rush v. Lynne Davis Family Ltd. P'ship

2022 Ark. App. 441

655 S.W.3d 86

Ben RUSH and Joanne Rush, Appellants

v.LYNNE DAVIS FAMILY LIMITED PARTNERSHIP; and Adannac Family Properties, LLC, Appellees

No. CV-21-446

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 2, 2022

PPGMR Law, PLLC, by: R. Scott Morgan, Pine Bluff, and M. Christine Dillard, for appellants.

Turner Law Firm, Cabot, by: Kaleb M. Jones ; and Thrash Law Firm, P.A., by: Thomas P. Thrash, Little Rock, and Will T. Crowder, for appellees.

LARRY D. VAUGHT, Judge

Joanne and Ben Rush (the Rushes) appeal the Jefferson County Circuit Court's order granting summary judgment in favor of the appellees, Lynne Davis Family Limited Partnership and Adannac Family Properties, LLC (hereinafter referred to collectively as "the McNeill family" or "the McNeills").¹ The order also quieted title to a disputed forty-seven-acre parcel of land located on the McNeill family's farm and dismissed the Rushes’ counterclaims for promissory estoppel and for the establishment of an easement. We affirm.

The disputed tract of land is located in Jefferson County, Arkansas, and is bordered on all sides by a lake and by property owned by the McNeill family. The McNeill family contends that the disputed tract is part of a fifteen-hundred-acre farm that they have continuously owned and operated for almost eighty years. The McNeill family submitted evidence that, since the 1940s, they have behaved as if they own the now-disputed forty-seven-acre tract of land: cutting and clearing the timber, raising cattle on it, fencing it, leasing it to others for farming and hunting, commercially harvesting pecans from its trees, maintaining roads to it, posting signs on it to deter trespassers, hunting on it, and paying property taxes on all the contiguous land. Dating back to 1981, the McNeill family enrolled portions of the disputed tract of land in the United States Department of Agriculture (USDA) and Agricultural Stabilization and Conservation Service (ASCS) farm programs. Most recently, the McNeill Family placed portions of the family farm, including the disputed tract of land, in the Federal Conservation Reserve Program (CRP) in 2015 and 2017, and they planted trees and performed other conservation practices required by the program on the disputed property.

The McNeill family presented evidence that it holds a 1974 deed that conveyed "All that part of Section 29, which lies North of Arkansas River" and that the contested forty-seven acres lies squarely within that portion of section 29.

In 1975, Buckner Realty and Insurance Company, Inc. (owned by Mr. James Buckner), bought the forty-seven-acre tract of land—along with four other lots—for $106.38 at a tax sale. The McNeill family presented evidence that it was unaware of this sale at the time and that, since the tax sale, Buckner has had no access to the land, and no one has ever seen him on the property. The McNeill family notes that the Rushes did not present any evidence from Buckner to the contrary.²

The McNeill family presented evidence that, in 1982, they put Buckner on notice that they were making a claim to the property that was open and adverse to Buckner's claim. In a letter dated October 28, 1982, Buckner wrote the following:

Buckner Realty and Insurance Company, Inc., holds title to all of the Northeast ¼ South of the River in Section 29, T3S, R10W in Jefferson County.... I am requesting your approval to use the existing farm lanes on your adjoining property as an access to our property.

Dr. Ric Cannada (a son-in-law member of the McNeill family) responded to Buckner on behalf of the family and informed him that the family was not willing to grant Buckner's request to use the existing farm lanes on the McNeill property as an access to the forty-seven-acre tract. Further, Cannada asserted to Buckner that the McNeill family's property includes "all of the flooded timber at the west or north-west end of the lake" and that the McNeill family "post[s] the property anew each year." Buckner responded, stating, "I am afraid that we have a serious title problem concerning the disputed property ...." Buckner further noted that "[a]ccording to aerial photographs, the flooded timber at the west end of the lake is within the aforementioned legal description."

The McNeills presented affidavits stating that, despite being made aware of the "serious title problem," Buckner took no additional steps to assert his ownership of the property against the McNeills following their 1982 correspondences. Buckner did, however, continue to pay taxes on the property and granted a flowage easement to the United States government in 2003.

The McNeills farmed the land, posted "no trespassing" markers annually, hunted on the land, and—from 1992 until 2017—leased the forty-seven-acre tract to third parties for farming operations. During this time the McNeill family continued to commercially harvest pecans on portions of the disputed property annually.

The evidence presented to the circuit court showed that, in 2019, Ben was perusing the Jefferson County Tax Assessor's records and saw that Buckner Realty and Insurance Company, Inc., owned the tract of land. He was interested in purchasing the land, so he contacted Buckner about buying the property. Buckner informed him that the tract of land was landlocked and that Buckner had no way to access it. Ben testified that he assumed that Buckner had not been on the property since purchasing it and that it "certainly has not been open to Mr. Buckner in the fact that he [was] not allow[ed] access to the property."

Ben contracted with Buckner to purchase the property on January 4, 2019, despite having never seen it. Buckner told Ben that adverse possession would have to be an exception to his title warranty. The real estate contract set the closing date for April 19, 2019. The title-insurance company also excepted any claims for adverse possession.

During the week of January 7, 2019, Ben tried to reach John Davis (son-in-law member of the McNeill family). At Davis's request, Cannada returned Ben's call on January 16, 2019. Cannada agreed to meet with the Rushes. On January 19, 2019, the Rushes and Cannada met at the McNeill family farm, got into Cannada's truck, and drove across the McNeill's pecan orchard to a place where they thought the corners to the disputed forty-seven-acre tract might be located in the middle of a large field that, for decades, the McNeills had used for grazing and then farming.

The McNeills assert that Ben never asked about or discussed the issue of adverse possession with Cannada, John Davis, or any other member of the McNeill family. However, Ben testified that when he was in Cannada's truck driving across the property, Cannada blurted out that he "had no plans to pursue adverse possession." Ben did not respond to the statement, and Joanne Rush, who was sitting in the backseat, did not hear the statement. Ben also did not write the statement down or make any attempt to memorialize it at the time. Ben did not confirm the statement with Davis, who, along with Cannada, owned contiguous parcels of property or seek any similar assurances from other members of the McNeill family. Cannada denies having made the statement.

On January 22, 2019, Cannada contacted the Rushes and pleaded with them not to go forward with the purchase of the forty-seven-acre tract of land from Buckner. He asked them to allow the McNeill family to purchase the land instead. Cannada explained that "the land is surrounded by our ancestral family farm," and the "farm has been the heart of our family and our family heritage." Cannada told Ben "the idea of granting an access across our family farm to a land locked place in the middle of our farm is very troubling and difficult. If the law forces us to do it, we will of course comply."

After being told that the McNeill family would not voluntarily grant him access to the land and would only grant him an easement if they "were required to do so" and "if the law force[d] [the family] to do it," Ben sent an email to Cannada on January 27, 2019, in which he stated that the Rushes would "be back in touch once a decision has been made."

The Rushes then took steps to move up the closing date on the property to January 30, 2019. They purchased the property with adverse possession being specifically exempted from their warranty deed and title insurance. After closing on the property, Ben contacted Cannada and told him that the Rushes went ahead and purchased the property because they had given Buckner their word that they would do so, that they had "no definitive answer yet" regarding their aim to get an easement and use the land, and that the McNeill family should not "panic yet." In response, Cannada offered to pay the Rushes more than they paid for the land or to swap it for an equal portion of land on the periphery of the McNeill family farm. The Rushes were not willing to swap the forty-seven-acre tract of land for a tract of equal size. They wanted more than forty-seven acres in any possible swap or substantially more money than the $50,000 they had just paid Buckner.

After acquiring title from Buckner, the Rushes requested that the Jefferson County Tax Assessor recognize that the parcel of land included the original forty-seven acres and also additional accreted land. The additional acreage was recognized as accreted property by the Jefferson County Tax Assessor, and the record on appeal contains a "Jefferson County Rural Property Record Card," which contains a verified map, sectional plat, and record card from the Jefferson County Tax Assessor. This record card states, "4/17/2019 CGH ADDED ACCRETIONS TO ASSESSMENT AT REQUEST OF BEN RUSH." Further, the legal description provided by the assessor's office is "ALL NE ¼ S OF RIVER & ACCRETIONS 88.026 ACRES."

After the Rushes had purchased the land from Buckner, the McNeill family filed suit in the Jefferson County Circuit Court seeking to quiet title on the basis of...