                                  Cite as 2015 Ark. App. 609

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CV-15-183


JAMES KELLEY and JEWELL KELLEY                     Opinion Delivered   OCTOBER 28, 2015
                     APPELLANTS
                                                   APPEAL FROM THE UNION
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. CV-12-357]

CINDY WILLIAMS                                     HONORABLE MICHAEL R.
                                  APPELLEE         LANDERS, JUDGE

                                                   AFFIRMED


                               DAVID M. GLOVER, Judge


       The sole issue in this appeal is whether the trial court erred in denying appellants’ claim

of a prescriptive easement across appellee’s real property. We affirm.

       In 1965, appellant Jewell Kelley acquired real property on the south side of Mount

Holly Road in Union County.           In 1983, Cliff Swilley purchased the real property

immediately to the east of Mrs. Kelley’s property. There was an old log road on the west side

of Mr. Swilley’s property. In 1987, a number of landowners1 sued Mr. Swilley to enjoin him

from blocking their access to the road after he placed a gate across the road; the trial court

found that the named landowner-plaintiffs had acquired a private prescriptive easement over

the roadway and that, while Mr. Swilley could leave the gate in place, it should be unlocked




       1
       The plaintiffs in that case were Anthony Forest Products Company, J.R. Haney, James
Haney, Wade Lee, Mrs. H.W. Meek, James Willett, M.H. Willett, and Timothy Willett.
                                   Cite as 2015 Ark. App. 609

so that the named plaintiffs could use it.2 In 1988, appellee Cindy Williams purchased Mr.

Swilley’s property with knowledge of the 1987 lawsuit; she and her husband (who died in

2001) never closed the gate and, in fact, removed it because it was in disrepair (it was not

replaced before Mr. Williams’s death).

       In 2005, appellant James Kelley, Jewell Kelley’s son, purchased from Dorothy Marks

eight acres directly south of Mrs. Kelley’s property. In 2008, Mrs. Kelley purchased another

thirty-three-acre tract from Wayne King that was immediately to the south and west of her

son’s property. The Kelleys used the road on Mrs. Williams’s property to access their later-

acquired back properties from 2005 until 2010, at which time Mrs. Williams built a pipe fence

down the common property line and placed a locked gate on the road.3

       We review equity cases de novo on the record and will not reverse a finding of fact

by the trial court unless it is clearly erroneous. Dohle v. Duffield, 2012 Ark. App. 217, 396

S.W.3d 780. A finding is clearly erroneous when, although there is evidence to support it,

the reviewing court on the entire evidence is left with a definite and firm conviction that a

mistake has been committed. Id. In reviewing a trial court’s findings, due deference is given

to that court’s superior position to determine witness credibility and the weight to be

accorded their testimony, as disputed facts and the determination of credibility of witnesses

       2
           Neither the Kelleys nor any of their predecessors in title were parties to the 1987
lawsuit.
       3
        There are discrepancies as to the date Williams denied the Kelleys access. The Kelleys’
amended petition for injunction asserts that the gate was placed across the road on or about
September 30, 2008; the order denying the easement finds that Williams disallowed use in
2008. However, the testimony from both James Kelley and Cindy Williams was that the pipe
fence and the gate were erected in 2010.

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are within the province of the fact-finder. Id.

       Appellants argue that none of the persons in their separate chains of title to their

properties had sought or obtained permission for their use of the road, and that they now, as

a matter of right, were entitled to have access to the road on Mrs. Williams’s property. We

disagree.

       In Carson v. County of Drew, 354 Ark. 621, 625–26, 128 S.W.3d 423, 425–26 (2003)

(citations omitted), our supreme court held:

               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. (“Prescription is the
       acquisition of title to a property right which is neither tangible nor visible (incorporeal
       hereditament) by an adverse user as distinguished from the acquisition of title to land
       itself (corporeal hereditament) by adverse possession.”) 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.” In Arkansas, it is
       generally required that one asserting an easement by prescription show by a
       preponderance of the evidence that one’s use has been adverse to the true owner and
       under a claim of right for the statutory period. This court has said that the statutory
       period of seven years for adverse possession applies to prescriptive easements. That
       statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101
       (1987). See also Ark. Code Ann. § 18-11-106 (Supp. 1999) (enacted as Act 776 of
       1995).

                Overt activity on the part of the user is necessary to make clear to the owner
       of the property that an adverse use and claim are being exerted. Mere permissive use
       of an easement cannot ripen into an adverse claim without clear action, which places
       the owner on notice. Some circumstance or act in addition to, or in connection with,
       the use which indicates that the use was not merely permissive is required to establish
       a right by prescription. The determination of whether a use is adverse or permissive
       is a fact question, and former decisions are rarely controlling on this factual issue. The
       plaintiff bears the burden of showing by a preponderance of the evidence that there has
       been adverse, not permissive, use of the land in question.

       Pursuant to Carson, the Kelleys were required to show that, for a period of at least

seven years, the road had been used adversely to Mrs. Williams’s right, that such use was not

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simply permissive, and that Mrs. Williams was on notice that such use was indeed adverse to

her. There was testimony that other persons had occasionally used the road to access the

property behind Mrs. Williams’s property for various reasons, but that evidence was not

sufficient to show such use was adverse to Mrs. Williams’s interests. The Kelleys’ use of Mrs.

Williams’s driveway did not commence until 2005, when James Kelley purchased the eight

acres immediately behind his mother’s property. His use was discontinued in 2010 when Mrs.

Williams put up the pipe fence and a locked gate. This amount of time falls short of the

seven-year period required to obtain an easement by prescription. Thus, the trial court’s

decision to deny appellants a prescriptive easement is not clearly erroneous.

       Affirmed.

       WHITEAKER and BROWN, JJ., agree.

       James B. Bennett, for appellants.

       Burbank Dodson & Barker, PLLC, by: Don B. Dodson, for appellee.




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