Wallace v. Rail Res., LLC

2022 Ark. App. 506

657 S.W.3d 875

Samuel WALLACE and Mary Wallace, Appellants

v.RAIL RESOURCES, LLC, Appellee

No. CV-21-463

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 14, 2022

McKissic & Associates, PLLC, Pine Bluff, by: Jackie B. Harris, for appellants.

Stone & Sawyer, PLLC, by: Phillip A. Stone, for appellee.

BART F. VIRDEN, Judge

Samuel and Mary Wallace appeal the Union County Circuit Court's ruling denying their petition for adverse possession.¹ We affirm.

I. Relevant Facts

In October 2006, Mary and Samuel Wallace bought a 3.5-acre parcel of land containing a residential home from Edwin Alderson, Jr., individually and as an executor of the estate of his deceased wife, Janie Alderson.² The Wallaces’ property is a sectioned-off parcel of the Aldersons’ original 20 acres. The remaining 16.5 acres belonged to Edwin. The Wallaces began living in the home immediately after closing. In January 2018, Tracy Anderson sold the remaining 16.5 acres to Rail Resources, LLC (RR), owned by John Hill and Jerry Ramsey.³

On September 13, 2018, the Wallaces filed a petition for prescriptive easement. A small section of the Wallaces’ driveway was located on RR's land, and since their purchase of the property in 2006, they had used that section of driveway to access their property. Also, the Wallaces’ sewer and utility lines ran underneath the driveway. The Wallaces asserted that they had acquired an easement pursuant to twelve years of open, notorious, hostile, and adverse use of the section of driveway and their sewer and utility lines. RR counterclaimed, arguing that the Wallaces were trespassing on the property, and they should be ordered to remove their utility and sewer lines.

On October 19, 2020, the Wallaces filed an amended petition for prescriptive easement, declaratory judgment quieting title, and injunctive relief. The Wallaces contended that title to a 5.475-acre tract of land adjoining the south and west boundary of their property, formerly belonging to the Aldersons and now the property of RR, should be quieted in their name. The Wallaces claimed that they

moved onto their property with the understanding that the strip of land running along the South and West boundaries of the survey attached to the original petition, and which they maintained, mowed, and improved was their own property included within the legal description of their special warranty deed.

They also requested that the court enjoin RR from driving heavy equipment over their utility lines located under the driveway to prevent them from being damaged and from tearing down any existing structures or building on the disputed land.

At the trial, Mary Wallace described their family's use of the disputed property from 2006 to 2018, as follows.⁴ In February 2007, shortly after the Wallaces took possession of their property, they received a letter from Edwin regarding some antique bricks he believed Mary's brother had taken from his property and admonishing them for cutting down a white oak tree. In the letter, Edwin informed the Wallaces that the bricks must be returned and stated that "I am asking you again to please respect our property rights." The Wallaces responded by letter, explaining that they mistakenly believed the white oak had been on their property and denying that Mary's brother took the bricks. The Wallaces asked Edwin to consider selling them the disputed property situated "a short distance beyond the barn, a short distance beyond the clean outs with a straight line to the street giving us ownership of the driveway." Mary explained that at the time of the sale, they believed that the entire driveway was included in the property they were buying; however, at closing they learned that it was not and chose to go forward with the purchase anyway. Edwin did not agree to sell them the disputed property and, according to Mary, never gave them permission to use the 5.475 acres. The Wallaces claimed that over the twelve years before RR bought the adjacent 16.5 acres, they maintained the disputed property by clearing brush; planting grass, flowers, and a garden; and using an excavator to create and maintain hiking trails on the property. The Wallaces stated that they had cookouts on the property, built a storage structure to house equipment, and used the barn on the disputed property for storage of equipment and wood. The Wallaces’ neighbor, Richard Mason, testified that he assumed the disputed property was a "carve out" that belonged to the Wallaces and that they maintained the disputed property the way it had been maintained by the Aldersons before the sale. Mason stated that he had never discussed ownership of the property with the parties.

Tracy Alderson contradicted Mary's recollection, describing the Wallaces’ use of the disputed property as expressly permissive. Tracy explained that in 2005, at her father's behest, she readied the 3.5 acres and the house on it for sale. The Wallaces made the highest bid, and Edwin accepted their offer. Immediately after the sale, during a phone call between her, her father, and the Wallaces, Tracy gave the Wallaces permission to use the adjacent 5.475 acres for recreation, clear the underbrush in the wooded area to their liking, and use the barn on the property for storage of their tractor. Tracy testified that the trails on the disputed property had been there since she was a little girl and were created for horseback riding. Tracy recalled that the disputed land had always been cleared for their family's use, but Mary had expressed that she wanted more of the underbrush removed, which she (Tracy) consented to. During the next twelve years, Tracy routinely drove her Jeep around the remaining 16.5 acres, including the disputed property, to check on it. Tracy testified that she noticed that the trails were overgrown, and trees had fallen and had not been removed. During one visit, she noticed that the Wallaces had built a gazebo on the land, which did not bother her; however, when the Wallaces painted the barn to match the gazebo, Tracy called them and ordered them to remove the paint immediately. She told Samuel Wallace that "you can't do that to things on my property or I'm going to limit your access." Tracy stated that she did not revoke permission to use the disputed property and barn. In 2018, after the sale of the property to RR, Tracy decided to have the barn demolished because painting had ruined it, it was "time to let that go," and the expense of moving it was prohibitive.

In early 2018, RR purchased the remaining 16.5 acres from Edwin Boyd Alderson Properties, LLC. John Hill, co-owner of RR, testified at the trial, that after he bought the 16.5 acres, he walked around the property and saw overgrown brush with no signs of any caretaking. RR hired Jeff Beavers to cut trees on his property. Beavers testified that he was hired to clear RR's land but ceased work after one day because Mary Wallace saw them on the disputed property and threatened to shoot him and his son. Mary denied threatening to shoot the Beavers and testified that she told them that she "felt like" shooting their equipment because she was worried the heavy equipment would damage her utility lines. In a text exchange, Mary asked if Hill was cutting trees, and John responded, "Yes I did. They are my trees to cut." Mary acknowledged Hill's ownership, replying "Amen I have no problem with the trees out just making sure it was you thank you." Mary did not respond to Hill's follow-up question regarding her threatening Jeff Beavers and his son. Mary testified that the texts were "a lie," and she did not agree that the trees were Hill's to cut.

Subsequently, Hill hired Andrew Simpson to cut the timber. Simpson flagged the boundary lines, and when he returned to the property a few days later, he saw his flags in a burn pile on the Wallaces’ property. Simpson also saw on the burn pile survey stakes that had been on the boundary line when he tied his flags. Mary Wallace confirmed that she had told the gardener to pull up the stakes so that he could mow. The El Dorado Police Department and the Arkansas Department of Agriculture investigated the removal of the survey stakes as a criminal matter.

The circuit court entered a detailed order finding, in relevant part, that the Wallaces had an easement by implication regarding access through the driveway and sewer lines. The court rejected the Wallaces’ claim of adverse possession and found that the Aldersons granted them permission to the enter the disputed property, maintain it as it had been maintained before the sale (removing brush and fallen trees), and use the barn for tools and equipment storage. The court determined that Alderson did not revoke permission to use the barn when the Wallaces painted it without her permission. The court quieted the title in RR's 16.5 acres. The Wallaces timely filed their notice of appeal.

II. Discussion

The Wallaces’ argument on appeal centers on whether their use of the disputed land was permissive. First, they assert that Tracy had no authority to dictate how they could use the land because she did not sell them their property, and she did not own the remaining 16.5 acres. Second, the Wallaces contend that their use of the land was not expressly permitted and was, in fact, hostile. Third, they alternatively argue that if their use was...