{ "id": 6647490, "name": "DIXIE FURNITURE CO. v. ARKANSAS POWER & LIGHT COMPANY", "name_abbreviation": "Dixie Furniture Co. v. Arkansas Power & Light Co.", "decision_date": "1986-10-29", "docket_number": "CA 85-279", "first_page": "160", "last_page": "164", "citations": [ { "type": "official", "cite": "19 Ark. App. 160" }, { "type": "parallel", "cite": "718 S.W.2d 120" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "222 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1653142 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/222/0526-01" ] }, { "cite": "54 S.W.2d 986", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1932, "opinion_index": 0 }, { "cite": "186 Ark. 625", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724539 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/ark/186/0625-01" ] }, { "cite": "85 S.W.2d 712", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1935, "opinion_index": 0 }, { "cite": "191 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418562 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ark/191/0227-01" ] }, { "cite": "209 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475823 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/209/0469-01" ] }, { "cite": "240 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727670 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0076-01" ] }, { "cite": "12 Ark. App. 62", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137341 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0062-01" ] }, { "cite": "246 Ark. 497", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604093 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ark/246/0497-01" ] }, { "cite": "224 S.W. 615", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "145 Ark. 306", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586136 ], "opinion_index": 0, "case_paths": [ "/ark/145/0306-01" ] }, { "cite": "221 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656528 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/221/0105-01" ] }, { "cite": "8 Ark. App. 157", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139233 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0157-01" ] }, { "cite": "274 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754967 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0066-01" ] }, { "cite": "263 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672606 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0164-01" ] }, { "cite": "11 Ark. App. 33", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648633 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/11/0033-01" ] } ], "analysis": { "cardinality": 526, "char_count": 7574, "ocr_confidence": 0.914, "pagerank": { "raw": 1.1329240581850795e-07, "percentile": 0.576610257972569 }, "sha256": "2b8424ed5d036d5ceb3cf4ed1a560a200362cdf6fffcdbc604dc730f0505c355", "simhash": "1:c14f4961ea2462f4", "word_count": 1273 }, "last_updated": "2023-07-14T22:48:59.358455+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cloninger and Corbin, JJ., agree." ], "parties": [ "DIXIE FURNITURE CO. v. ARKANSAS POWER & LIGHT COMPANY" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nAppellant, Dixie Furniture Company, has appealed a decision of the Phillips County Chancery Court granting partial summary judgment to appellee, holding that appellee had acquired a prescriptive easement over lands of the appellant and that the appellant and its predecessors in title knew or should have known the lands were being used adversely.\nSummary judgment is an extreme remedy and should be granted only when it is clear that there is no genuine question of fact in issue. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). In the present case, oral testimony was taken in addition to the affidavits and pleadings; however, ARCP Rule 56 does not permit supplementation of the pleadings, depositions, answers to interrogatories, admissions and affidavits with oral testimony in considering whether summary judgment is appropriate. Sikes v. Segers, 263 Ark. 164, 563 S.W.2d 441 (1978). Therefore, in keeping with the procedure followed in Montgomery Ward & Co. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981), we do not consider the oral testimony included in the record in this case.\nAn affidavit filed in support of appellee\u2019s motion for summary judgment stated that appellee had constructed a transmission line across appellant\u2019s land in 1945 and that it had been maintained and operated by appellee since that time. The affidavit also stated that a support structure, presently in place and use, was installed in 1967, is over 90 feet tall, and is fairly obvious from the subject property. These allegations were not denied by the affidavit filed by appellant and it had the duty to meet them with sworn allegations of its own that showed there was a genuine issue of fact for trial. Chick v. Rebsamen Insurance-Springdale, 8 Ark. App. 157, 649 S.W.2d 196 (1983).\nThe chancellor\u2019s memorandum opinion relied upon Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952), where the court stated:\nWe announced the rule in this language in Waller v. Dansby, 145 Ark. 306,224 S.W. 615: \u201cThe general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.\u201d\nIn the case of French v. Richardson, 246 Ark. 497, 438 S.W.2d 714 (1969), the appellants had purchased a twenty-five acre tract of land which was burdened with a servitude represented by an unrecorded easement allowing appellees\u2019 radio station to maintain a tower on and transmission lines across the Frenchs\u2019 property. The Arkansas Supreme Court held:\nThe law governing the respective rights of the parties in that situation is well settled. The prevailing rule is found in Am. Jur., Easements, \u00a7 156 (1957):\nIt has often been said that in order to affect the purchaser of a servient estate the easement if unrecorded, must be one that is apparent as well as necessary and continuous, or the marks of the servitude must be open and visible. Accordingly, it is held that if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence, except in so far as he may be charged with constructive notice under the recording laws. On the other hand, the proposition that a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question.\n246 Ark. at 499.\nMore recently, the Court of Appeals has reiterated these rules in Childress v. Richardson, 12 Ark. App. 62, 670 S.W.2d 475 (1984).\nIn Sebastian Lake Development, Inc. v. United Telephone Co., 240 Ark. 76,398 S.W.2d 208 (1966), the telephone company sought an injunction to prevent the construction of a dam which would result in the flooding of existing telephone poles and lines on appellant\u2019s property, claiming it held an easement by prescription. The court agreed that the evidence showed the land had been used adversely under claim of right for more than seven years and, under Ark. Stat. Ann. \u00a7 35-101 (Repl. 1962), compensation for the property taken was barred by the statute of limitations.\nUnder the law set out above, we believe the affidavits before the trial judge in the present case demonstrated that there was no genuine issue of fact to be tried concerning the existence of the appellee\u2019s prescriptive easement.\nAppellant cites LeCroy v. Sigman, 209 Ark. 469, 191 S.W.2d 461 (1945), and Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S.W.2d 712 (1935), in support of its argument that, since its land was unenclosed, there is a presumption that the easement across the property was permissive. However, we cannot agree. The cases cited by appellant deal with passage over land and not with structures on land. Appellant\u2019s cases rely upon Boullioun v. Constantine, 186 Ark. 625, 54 S.W.2d 986 (1932), where the court cited 9 R.C.L., Easements, \u00a7 39, and said:\n[T]he rule that the use of uninclosed lands for passage is to be presumed permissive and not adverse is stated to be that supported by the weight of authority and based on the fact that it was not the custom in this country, or the habit of the people, to object to persons enjoying such privilege until there is a desire to inclose.\n186 Ark. at 629.\nNeither do we agree with appellant\u2019s argument that even if it had been aware of the existence of appellee\u2019s power lines and tower, it would have assumed them to be on adjacent property because there was no recorded easement, and because it was unaware of where its actual boundary lines were located. If, as stated in Hamah v. Daniels, and French v. Richardson, supra, a purchaser is charged with notice of an easement or encroachment where its existence is apparent upon an ordinary inspection of the property, it follows that a property owner is charged with knowledge of where his boundaries are located and whether the encumbrance is on his property or adjacent property. See also Smotherman v. Blackwell, 222 Ark. 526, 261 S.W.2d 782 (1953), in which it was held that the purchasers took subject to an equitable right of reformation by their neighbor who was in possession of part of the property purchased. There the court stated:\nHad the Blackwells taken the precaution of having a survey made before they bought Lot 1 they would have learned of Smotherman\u2019s hostile possession, and they are charged with knowledge of such facts as would have been disclosed by a diligent investigation of his claim. Such an investigation would have led to the discovery of the past events that now entitle him to the relief prayed.\nWe believe the chancellor was correct in granting the summary judgment in the instant case.\nAffirmed.\nCloninger and Corbin, JJ., agree.\nAppellant\u2019s request for injunction to prevent appellee from using the property for any purpose was denied. This was an appealable order, Rules of Appellate Procedure, Rule 2(a)(6), even though the court\u2019s order stated that \u201ca factual issue still remains as to the exact width of the defendant\u2019s prescription easement.\u201d", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "W.G. Dinning, Jr., for appellant.", "Janan E. Kemp, for appellee." ], "corrections": "", "head_matter": "DIXIE FURNITURE CO. v. ARKANSAS POWER & LIGHT COMPANY\nCA 85-279\n718 S.W.2d 120\nCourt of Appeals of Arkansas Division II\nOpinion delivered October 29, 1986\n[Rehearing denied November 26, 1986.]\nW.G. Dinning, Jr., for appellant.\nJanan E. Kemp, for appellee." }, "file_name": "0160-01", "first_page_order": 192, "last_page_order": 196 }