                             No. 95-2394


Jerry D. Patterson and              *
Mary Lou Patterson,                 *
                                    *
      Appellants,                   *
                                    *   Appeal from the United States
         v.                         *   District Court for the
                                    *   Western District of Arkansas.
Buffalo National River,             *
a Part of the Department of the     *
Interior, an Agency of the          *
United States of America,           *
                                    *
      Appellee.                     *




                    Submitted:    January 8, 1996

                         Filed:   February 12, 1996

                                                                     *
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,
     District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Jerry and Mary Lou Patterson appeal the district court's order
granting summary judgment to the Buffalo National River ("BNR").
We reverse.


                               I.
     Between 1939 and 1976, the Hall family owned a 159.49-acre
tract of land in northern Arkansas. In 1976, they conveyed the
north 79.49 acres of the tract to the United States, and that

     *
      The HONORABLE DONALD D. ALSOP, United States District
     Judge for the District of Minnesota, sitting by
     designation.
acreage was incorporated into the Buffalo National River project.
The deed also purported to quitclaim all of the grantors' interest
"in any means of ingress or egress." At the time of the transfer,
a primitive roadway crossing the land ceded to the United States
connected the land that the Halls retained with a public road. The
plaintiffs contend that this roadway continues to be the only way
to gain access to the south eighty acres.


     In 1986, the United States National Park Service ("Park
Service") denied the Halls access to their retained land over this
roadway on the ground that the Park Service did not grant private
road easements across park property. The Halls then sold their
retained land to the Pattersons; the deed purported to include an
easement by necessity across the adjoining 79.49 acres now owned by
the United States. In 1987, Jerry Patterson wrote the Park Service
to ask if he could use the roadway to gain access to his property,
and the Park Service again denied the request.


     In 1994, the Pattersons sued BNR, an agency of the United
States, in Arkansas state court. They sought a declaration that
they had an easement by implication or by necessity across the
government's land and asked for an order permanently enjoining BNR
from interfering with their use of that easement.       The United
States removed the case to the federal court pursuant to the Quiet
Title Act, 28 U.S.C. § 2409a(a); see also 28 U.S.C. § 1346(f). The
district court held on summary judgment that the applicable statute
of limitations barred the Pattersons' claim and that, even if their
action had been timely, the Pattersons did not have an easement by
implication or by necessity, because the 1976 deed released all
such easements to the United States.


                               II.
     The Pattersons first argue that the district court erred in
holding that their action was barred by the 12-year statute of


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limitations of the Quiet Title Act. 28 U.S.C. § 2409a(g). They
argue that the district court erroneously found that the
Pattersons' cause of action accrued when the Halls conveyed their
property to the United States in 1976, because the statute began to
run at the earliest in 1986, when the Park Service denied the Halls
access to the roadway. We agree.


     An action under the Quiet Title Act accrues "on the date the
plaintiff or his predecessor in interest knew or should have known
of the claim of the United States." 28 U.S.C. § 2409a(g). Whether
the Pattersons "should have known" about the government's claim is
subject to a test of reasonableness, State ex rel. Bd. of
University and School Lands v. Block, 789 F.2d 1308, 1312 (8th Cir.
1986); "[a]ll that is necessary is a reasonable awareness that the
Government claims some interest adverse to the plaintiff[s]," id.
at 1313.


     The district court found that "the language of the deed which
released to the United States 'any means of ingress and egress'
constitutes notice" that the Halls relinquished their right to
access their land through park property. We disagree. We have
held, it is true, that plaintiffs are deemed to be on notice for
purposes of the Quiet Title Act when they enter into a written
agreement that acknowledges the government's claim. State ex rel.
Bd., 789 F.2d at 1313; see also Vincent Murphy Chevrolet Co. v.
United States, 766 F.2d 449, 452 (10th Cir. 1985) (holding
easements in deed constituted notice of a claim under Quiet Title
Act). The rule could hardly be otherwise in such a case. But in
this case, we think that the restrictions contained in the 1976
deed were at best too ambiguous to place the Halls on notice of the
government's claims. The government argues that the Halls should
have known that they could no longer use the roadway to gain access
to their property because their deed relinquished "any means of
ingress and egress."    The Pattersons contend (and we agree for


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reasons that will appear) that the deed is more plausibly read to
mean "any means of ingress and egress" to the land conveyed to the
government. As the Pattersons point out, when read this way, the
deed merely restates Arkansas law:    in Arkansas, a transfer of
property automatically passes all easements appurtenant to that
property, including all means of ingress and egress to it. See
Wallner v. Johnson, 21 Ark. App. 124, 129, 730 S.W.2d 253, 256
(1987).


     Because the deed is at best ambiguous, we must construe it
against the party who prepared it (in this case the United States),
and we may consider extrinsic evidence of the parties' intent.
Wilson v. Brown, 320 Ark. 240, 244, 897 S.W.2d 546, 548 (1995).
In this case, if we interpret the deed as the government urges, we
must presume that the Halls can reasonably be charged with knowing
in 1976 that they were completely landlocked. Extrinsic evidence
from the time that the transaction occurred, however, leads us to
conclude otherwise. Immediately prior to the sale, the Department
of the Interior appraised the land and concluded that the Halls
were not entitled to severance damages. The appraiser's report
indicated that the value of the Halls' retained land would not be
diminished, in part because "access will not be lost."         The
government suggests that the appraiser was not referring to the
roadway in question. Because the roadway in question was the only
means of gaining access to the retained property, however, it is
reasonable to conclude that Halls probably assumed that he was.
The only reasonable conclusion that a factfinder could come to,
therefore, is that the Halls could not have had a reasonable
awareness in 1976 that the government would claim the right to
block access to their land. Instead, we find that they learned of
this claim only when the Park Service responded to their 1985
inquiry.   We therefore hold that the Pattersons' action is not
time-barred.




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                               III.
     The Pattersons next argue that the district court erred when
it refused to grant a declaratory judgment to the effect that they
have an implied easement by implication or by necessity across the
land deeded to the United States. The district court denied the
Pattersons' motion for summary judgment because it found that, even
if the statute of limitations had not barred their action, the
Halls' 1976 deed released any easement that they might have had
across park property. The court reasoned that "the language of the
conveyance at issue belies the existence of any intent on the part
of the parties to provide the Halls with any means of ingress and
egress to the remaining 80 acres." We disagree.


                                A.
     Easements by implication and by necessity are appurtenant
easements. Brandenburg v. Brooks, 264 Ark. 939, 940, 576 S.W.2d
196, 197 (1979). That is, they benefit a particular parcel of land
rather than a particular individual. As the Arkansas Supreme Court
recently explained, "[a]n easement appurtenant serves a parcel of
land called the dominant tenement.     The property on which the
easement is imposed is the servient tenement." Wilson v. Brown,
320 Ark. at 243-44, 897 S.W.2d at 548.         In this case, the
Pattersons claim that they have an easement appurtenant to the
south 80 acres (dominant tenement) across the land purchased by the
government (servient tenement).


     Because appurtenant easements are attached to a particular
parcel of land, they cannot be conveyed apart from the dominant
tenement, Carver v. Jones, 28 Ark. App. 288, 292, 773 S.W.2d 842,
845 (1989), but they can, of course, be extinguished by the
execution of a written release to the owner of the servient
tenement. See 2 A. James Casner, American Law of Property § 8.95
at 302 (1952).     The government contends that the 1976 deed
extinguished any easements across the land it purchased.


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We disagree.    A document releasing an easement must meet the
requirements of one creating an easement, id., including a legal
description of the interest conveyed. White v. Zini, 39 Ark. App.
83, 87-88, 838 S.W.2d 370, 372-73 (1992) (en banc). Because it is
attached to the dominant tenement, we would expect a deed
transferring an easement appurtenant to the property retained by
the Halls to describe the south 80 acres. Because it does not, we
think that the relevant portion of the deed is more plausibly read
to quitclaim the Halls' rights in "any means of ingress and egress"
to the property described in the document (i.e., the property
transferred to the government), not to the property that the Halls
retained.


     Furthermore, even if the deed had clearly purported to release
all easements appurtenant to the south 80 acres, it would have
conveyed nothing under Arkansas law.         The relevant section
purported to "quit claim" all interests in "means of ingress
and egress."     In Arkansas, deeds using this language are
interpreted as quitclaims, and a grantor can by quitclaim convey
only interests that he owns at the time that the deed is delivered.
Graham v. Quarles, 206 Ark. 542, 547, 176 S.W.2d 703, 706 (1944)
("a quitclaim deed does not purport to convey any title except such
as the grantor had at the time of its execution"); Chavis v. Hill,
216 Ark. 136, 138, 224 S.W.2d 808, 809 (1949) ("afteracquired
property rights do not pass under a quitclaim deed").


     Easements by implication and by necessity are created upon
severance of ownership of a single parcel of land that was
previously held by one owner. If it is necessary for the continued
enjoyment of the dominant tenement, the dominant tenement acquires
an implied easement over the servient tenement when the two are
severed. Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330,
337, 274 S.W.2d 63, 67 (1954). In other words, if the Halls were
entitled to an easement by implication or by necessity over the


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land ceded to the government, they had no interest in the easement
before the property was divided; the right arose after severance.
See 2 Casner, American Law of Property § 8.26 at 250 (discussing
quasi-easements, "a grantor could not, of course, have had, before
his conveyance, an easement in the land conveyed"). Therefore, the
Halls could not have released their easement to the government by
quitclaim in the 1976 deed.


                                 B.
     Having found that the Halls did not relinquish their rights to
any implied easements to which they might have been entitled, we
now consider whether the Pattersons are actually entitled to an
easement by implication or by necessity. The district court found,
and the government does not dispute, that the roadway crossing park
property continues to provide a way to gain access to the
Pattersons' property.     The court did not determine, however,
whether the road was used continuously prior to severance or
whether another reasonable means of gaining access to the
Pattersons' property exists.


     When an owner of a single parcel of land uses part of his land
to benefit a second part, courts may find that a quasi-easement
exists; the land benefited is called the "quasi-dominant tenement"
and the property used is called the "quasi-servient tenement."
Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 276, 819
S.W.2d 275, 278 (1991).       When the parcel is divided, the
quasi-easement becomes an "implied easement corresponding to a
pre-existing quasi-easement" or, put more simply, an easement by
implication.   Id., 307 Ark. at 277, 819 S.W.2d at 278-79.      The
Arkansas Supreme Court explained this situation as follows:
"[W]here, during the unity of title, an apparently permanent and
obvious servitude is imposed on one part of an estate in favor of
another, ... then, upon a severance of such ownership, ... there
arises by implication of law a grant or reservation of the right to


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continue such use." Greasy Slough, 224 Ark. at 337, 274 S.W.2d at
67 (internal quotes omitted). The law recognizes an easement by
implication, however, only if the use of the quasi-easement prior
to severance was "apparent, continuous, and necessary" and if a
continuance of its use is essential to the further use and
enjoyment of the estate retained. Id.


     Easements by necessity share many of the characteristics of
easements by implication. For instance, they arise when a parcel
of land held by a single owner is severed and the easement is
necessary for the enjoyment of the dominant tenement, both at the
time of severance and at the time the holder of the dominant
tenement asserts the right to the easement. Powell v. Miller, 30
Ark. App. 157, 162, 785 S.W.2d 37, 39 (1990). In contrast to an
easement by implication, however, "an easement by necessity ...
allows for a route of access where one previously did not exist."
Burdess v. U.S., 553 F. Supp. 646, 650 (E.D. Ark. 1982); see also
Powell, 30 Ark. App. at 162, 785 S.W.2d at 39.      Therefore, the
Pattersons are entitled to an easement by necessity if crossing the
government's land is necessary for access to their property.


     We are unable to determine whether the Pattersons have an
easement over the government's land, however, because several
questions of material fact remain. For one thing, the Pattersons
are not entitled to either type of easement unless they demonstrate
that one is necessary, not simply convenient, in order to gain
access to their property through the government's land. Kennedy v.
Papp, 294 Ark. 88, 94, 741 S.W.2d 625, 628 (1987) ("[t]he degree of
necessity ... must be more than one of mere inconvenience"). The
Pattersons must show that "there could be no other reasonable mode
of enjoying the dominant tenement." Manitowoc Remanufacturing, 307
Ark. at 277, 819 S.W.2d at 279; see also Brandenburg, 264 Ark. at
940, 576 S.W.2d at 197 (requiring "reasonable necessity"). (The
degree of necessity required is the same for easements by necessity


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and by implication. Kennedy, 294 Ark. at 94, 741 S.W.2d at 628.)
Although their land is surrounded on three sides by private
landowners, the Pattersons claim that they are landlocked unless
they can use the roadway in question. They assert that the nature
of the surrounding terrain makes it virtually impossible to
construct a road across another neighbor's property. The Arkansas
Supreme Court has indicated that courts may consider terrain when
determining necessity, Brandenburg, 264 Ark. at 940, 576 S.W.2d at
197, but, of course, we leave it up to the trial court to weigh
such evidence should it become necessary.     "Whether use of the
easement [is] necessary [is] a question of fact for the trial court
to determine." Carver, 28 Ark. App. at 292, 773 S.W.2d at 845.


     Furthermore, in order to claim an easement by implication over
the existing roadway, the Pattersons must demonstrate that prior to
severance the roadway was permanent and obvious and that the Halls'
use of it was continuous and apparent. Greasy Slough, 224 Ark. at
337, 274 S.W.2d at 67. The government asserts that the roadway was
not used at the time of the initial sale.     Again, the district
court may be called on to resolve these disputed facts on remand.



     We are aware that the law of Arkansas may differ from that of
other states, in that it partially conflates easements by necessity
and easements by implication by imputing to each of them the
characteristic that they arise only if they are necessary to the
enjoyment of the land to which they are claimed to be appurtenant.
See 2 Casner, American Law of Property § 8.26 at 250-51, § 8.43 at
263 (discussing other states' laws). But that is the clear purport
of the Arkansas cases, by which, of course, we are bound in this
diversity case.    Different consequences, however, could follow
depending on whether the Pattersons make out a case for an easement
by implication or an easement by necessity. For instance, if the
easement is found to be necessary to the enjoyment of the retained


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land, but the previous use of the land claimed to be servient
proves not to have been continuous or apparent, then the Pattersons
will be entitled to have an easement laid out, but not necessarily
where   they   assert   that  the   quasi-easement   was   located.
Furthermore, the nature and extent of the previous use of a
quasi-easement will necessarily determine its scope and thus the
traffic burdens to which the servient tenement can be subjected,
but the same, of course, cannot be said of an easement by
necessity, there being no prior use capable of giving it
definition.   There may well be other differences, but we leave
these difficulties to the trial court to work out as the facts may
require.


                             IV.
     For the foregoing reasons, we reverse the order of the
district court and remand the case to determine whether the
Pattersons are entitled to an easement by implication or by
necessity.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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