                                 Cite as 2015 Ark. App. 305

                 ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CV-14-1048


LARRY EDGE and JULIUS EDGE                        Opinion Delivered   MAY 6, 2015
                    APPELLANTS
                                                  APPEAL FROM THE CLEBURNE
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CV-13-51-4]

GARRY B. SUTHERLAND and                           HONORABLE TIM WEAVER,
BRENDA SUTHERLAND, Husband and                    JUDGE
Wife, as Co-Trustees of the
SUTHERLAND REVOCABLE TRUST                        AFFIRMED
DATED July 25, 2007; KURT PHILLIPS
and VIRGINIA PHILLIPS, Husband and
Wife; GARRY L. SUTHERLAND and
ANGELA SUTHERLAND, Husband and
Wife
                            APPELLEES



                            KENNETH S. HIXSON, Judge


       Appellants Larry and Julius Edge (“Edge” or “Edges”) appeal the order of the Cleburne

County Circuit Court that rejected their request for an easement across the lands of appellees

Garry Bryant and Brenda Sutherland, as co-trustees of the Sutherland Revocable Trust dated

July 25, 1997 (“Sutherland Trust” or “Bryant Sutherland”); Kurt and Virginia Phillips

(“Phillips”); and Garry Lynn and Angela Sutherland (“Lynn Sutherland”). The Edges

acquired an existing dedicated roadway easement to access their property from the east, but

they wanted to use a different, shorter route across these neighboring properties from the

south, filing suit in April 2013. The complaint alleged four counts: Count I sought quiet title
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as to the correct location of the Edge boundary lines; Count II and Count III sought an

easement by implication or, alternatively, by necessity over all appellees’ properties; and

Count IV sought a prescriptive easement or ownership by adverse possession of a particular

portion of land (a “gap” between the southern boundary of the Edge property and the three

acres of Phillips property). After hearing evidence presented by appellants, appellees moved

for directed verdict1 on all counts alleged in the complaint, which the trial court granted.

This appeal followed.

       Appellants do not contest the dismissal of their complaint on Counts I and IV.

Appellants argue that the trial court erred in granting a directed verdict and dismissing their

complaint because an easement existed for the gravel drive across the Sutherland Trust and

Lynn Sutherland properties and because they presented a prima facie case of easement by

implication or necessity across all the intermediate lands. We hold that the trial court did not

err in dismissing their complaint seeking an easement to cross all these properties. Appellants

have not demonstrated trial court error. We therefore affirm.

       The standard of review is well settled. This case was disposed by directed verdict at

the close of the plaintiffs’ case. In determining on appeal whether a directed verdict (or

dismissal at a bench trial) was properly entered at the trial court level, we review the evidence

in the light most favorable to the party against whom the verdict was sought and give it its

highest probative value, taking into account all reasonable inferences deducible from it.

Nicholson v. Simmons First Nat’l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993). A motion for


       1
        Because this was a bench trial, this was in actuality a motion to dismiss.

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directed verdict or dismissal should be granted only if there is no substantial evidence to

support a jury verdict. Deck House, Inc. v. Link, 98 Ark. App. 17, 249 S.W.3d 817 (2007).

In making that determination, the trial court does not engage in fact finding or determine

questions of credibility. Where the evidence is such that fair-minded persons might reach

different conclusions, then a fact question is presented, and dismissal or directed verdict should

be reversed. Id.

       Appellants sought the judicial creation of an easement over land owned by three

different persons or entities with the segments of the requested easements created by different

judicial mechanisms. Over two segments, appellants requested an easement by implication

or by necessity, over another segment an express easement by reservation in a prior deed (or

by implication or necessity), and over another segment by easement by prescription (or

implication or necessity). With each requested type of easement, the law requires different

and distinct elements of proof.

       An easement by implication arises where, during unity of title, a landowner imposes

an apparently permanent and obvious servitude on part of his property in favor of another part

and where, at the time of a later severance of ownership, the servitude is in use and is

reasonably necessary for the enjoyment of that part of the property favored by the servitude.

Berry v. Moon, 2011 Ark. App. 781, 387 S.W.3d 306. In order for such an easement to be

established, it must appear not only that the easement is obvious and apparently permanent

but also that it is reasonably necessary for the enjoyment of the property. Id. The term

“necessary” in this context means that there could be no other reasonable mode of enjoying


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the dominant tenement without the easement. Id. The necessity for the easement must have

existed at the time of the severance. Id. Further, the apparently permanent nature of the

easement must be in existence at the time of common ownership. Id.

       An easement by necessity arises when there could be no other reasonable mode of

enjoying the dominant tenement without the easement. Horton v. Taylor, 2012 Ark. App.

469, 422 S.W.3d 202. The possibility of another, although inconvenient, route to appellant’s

property precludes the establishment of an easement by necessity. Id. The degree of

necessity, thus, must be more than mere convenience. Id. 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. Id. An easement by necessity terminates with the cessation of the

necessity that brought it into being. Sluyter v. Hale Fireworks P’ship, 370 Ark. 511, 262

S.W.3d 154 (2007). The elements of easement by necessity or implication are very similar.

       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. Owners Ass’n of Foxcroft Woods,

Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). 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. Id. In Arkansas, it is generally required that

one asserting an easement by prescription show by a preponderance of the evidence that one’s


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use has been adverse to the true owner and under a claim of right for the statutory period.

Id. Our supreme court has said that the statutory period of seven years for adverse possession

applies to prescriptive easements. Id. 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 are being exerted.

Id. Mere permissive use of an easement cannot ripen into an adverse claim without clear

action, which places the owner on notice. Id. The plaintiff bears the burden to show by a

preponderance of the evidence that there has been adverse, not permissive, use of the land in

question. Id; see also Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991).

       A detailed examination of the evidence presented at this bench trial is necessary to

decide the issues on appeal. Julius Edge and his son Larry Edge purchased forty-five acres of

rural land in March 2013 for the purpose of building a cabin on it and using the acreage for

hunting. This land is in the east half of the northeast quarter of section 25, township 12

north, range 9 west, in Cleburne County, situated north of Wolf Bayou Road, a paved

roadway. Although appellants had been granted another route from the eastern side of their

property to access Wolf Bayou Road, they wanted to access their property from the south by

crossing over property owned in varying tracts by appellees.

       Appellee Bryant Sutherland has owned thirty-eight acres directly south of Edge for

many years. Wolf Bayou Road runs adjacent to the southern boundary of Bryant Sutherland’s

tract. Squeezed in between the Edges’ acreage and Bryant Sutherland’s acreage is a three-acre

rectangular tract owned by appellees Kurt and Virginia Phillips. Access to the Phillips acreage

is gained from a gravel drive that commences off Wolf Bayou Road and runs generally


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northeast to the Phillips’ three-acre tract. This access is referred to herein as the “gravel

drive.”

          This gravel drive was built by Bryant Sutherland’s predecessor in title decades ago.

The gravel drive, however, crosses two different tracts of property. As the gravel drive begins

off Wolf Bayou Road, the gravel drive is contained within the west half of the quarter, not

the east half of the quarter. This segment that lies within the west half is referred to herein

as the “southern portion” of the gravel drive. There is some evidence in the record that this

southern portion of the gravel drive is on property owned by Lynn Sutherland. As this gravel

drive continues northward, it crosses over to the east half of the quarter and lies within the

tract owned by Bryant Sutherland. This segment that lies within the east half is referred to

herein as the “northern portion” of the gravel drive.

          Appellees collectively were unwilling to permit the Edges to cross their lands to

connect to Wolf Bayou Road. As a result, the Edges acquired the aforementioned access

from the east over a thirty-foot-wide existing old road easement that had been in existence

for many years, running more than a mile to another point of connection to Wolf Bayou

Road. It was not ideal for the Edges, as it was rough, hilly terrain that required twice crossing

a creek. Their attorney contended that this was not reasonable access to the property. This

was what led to the lawsuit seeking an easement to cross the neighboring properties from the

south.




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       The relief requested by appellants was a combination of at least four, and perhaps, five

different easements linked together from Wolf Bayou Road to gain access to the Edge

property from the south, as follows:

       1.      An easement by necessity or implication over land owned by Lynn Sutherland
               over the southern portion of the gravel drive that lies within the west half of
               the quarter; then
       2.      An easement by necessity or implication over the northern portion of the gravel
               drive that is contained within the east half of the quarter, in the thirty-eight-
               acre tract owned by Bryant Sutherland; then
       3.      An easement by necessity or implication over land owned by Kurt Phillips from
               the point where the gravel drive enters the three-acre tract (approximately in
               the middle of the tract) over to and along an alleged express easement along the
               western boundary of the three-acre tract; then
       4.      An express easement over the western boundary of the three-acre tract owned
               by Kurt Phillips allegedly arising from a reservation of an easement in a deed
               between prior buyers and sellers of the three-acre tract; then
       5.      A prescriptive easement over a purported “gap” discovered by survey between
               the northern border of the Phillips property and the southern border of the
               Edge property (referred to hereinafter as “the gap”).

These combined easements would complete the desired access route from Wolf Bayou Road

to the Edge property from the south.

       The trial court heard extensive testimony about the usage of the gravel drive and paths

from the Phillips acreage toward the property that is now owned by the Edges. It also heard

testimony from Edge about the alternative access from the eastern side of the Edge acreage,

whether it was sufficiently passable, and why appellants wanted the shorter, easier route. The

attorneys for Bryant Sutherland, Lynn Sutherland, and Phillips moved for directed verdict on

all counts. The trial court found that appellants failed to present sufficient evidence to sustain

the burden of proof for easements by necessity or implication on one or more elements and

directed a verdict in favor of appellees.

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       In reviewing the record on appeal, even if we were to hold that there were sufficient

facts and inferences to survive a motion to dismiss over the segments of the requested

easements other than the gravel drive, which we do not decide, there is an absence of

evidence in the record concerning the unity of title regarding the gravel drive. Without an

easement to use the gravel drive, the Edges cannot reach Wolf Bayou Road. Our ultimate

analysis centers on that segment.

       Nowhere in appellants’ complaint is there an allegation that a prescriptive easement

was sought or that an express or dedicated easement already existed across the gravel drive.

The only allegation regarding the gravel drive in the complaint was that an easement by

implication or by necessity2 should be granted. As stated, the ownership of the property over

which the gravel drive exists is divided. The southern portion of the gravel drive is contained

within the western half of the quarter, and the northern portion of the gravel drive is

contained within the eastern half of the quarter. The first essential element of an easement

by necessity or an easement by implication is unity of title. Appellants failed to introduce into

evidence a warranty deed or any other type of deed concerning the ownership of the southern

portion of the gravel drive, the dates of ownership, and whether there was at any time unity

of title to the entirety of the gravel drive and unity of title with the forty-five-acre Edge

property. Even giving appellants the benefit of any reasonable inference, the only evidence

in the record concerning the ownership of the southern portion of the gravel drive was Bryant


       2
        The Edges’ attorney argued to the trial judge in opposition to a directed verdict that
“our easement by necessity is what comes across the Sutherlands. That lower portion. That
gravel road.”

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Sutherland’s testimony that his son Lynn Sutherland currently “owns the gravel driveway.”

Without this element of unity of title, an easement by necessity or implication fails. A failure

of this aspect of the complaint rendered useless any further easement, as it negates the very

remedy sought—this particular access route from Wolf Bayou Road to the Edge property.

       We affirm.

       KINARD and GLOVER, JJ., agree.

       Grayson & Grayson, P.A., by: Keith L. Grayson and Melanie L. Grayson, for appellants.

       Murphy, Thompson, Arnold, Skinner & Castleberry, by: Blair Arnold;
       Blair & Stroud, by: Robert D. Stroud and Barrett S. Moore, for appellees.




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