{ "id": 1871464, "name": "Joyce Davis HARVEY v. Rod BELL", "name_abbreviation": "Harvey v. Bell", "decision_date": "1987-07-06", "docket_number": "87-12", "first_page": "657", "last_page": "662", "citations": [ { "type": "official", "cite": "292 Ark. 657" }, { "type": "parallel", "cite": "732 S.W.2d 138" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 S.W.2d 645", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1924, "opinion_index": 0 }, { "cite": "164 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382148 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ark/164/0261-01" ] }, { "cite": "280 Ark. 492", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744792 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "wherein no specific location of right of way was given in grant; court held subject to accepted standards of reasonableness, grantee was free to locate pipe line, but once selected, the right of way becomes fixed" }, { "parenthetical": "wherein no specific location of right of way was given in grant; court held subject to accepted standards of reasonableness, grantee was free to locate pipe line, but once selected, the right of way becomes fixed" } ], "opinion_index": 0, "case_paths": [ "/ark/280/0492-01" ] }, { "cite": "90 S.W.2d 1003", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1905, "opinion_index": 0 }, { "cite": "77 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499103 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/77/0177-01" ] }, { "cite": "294 S.W.2d 1006", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1927, "opinion_index": 0 }, { "cite": "174 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719863 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/ark/174/0248-01" ] }, { "cite": "209 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475734 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/209/0093-01" ] }, { "cite": "121 S.W.2d 395", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10233804 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/sw2d/121/0395-01" ] }, { "cite": "91 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511804 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/ark/91/0350-01" ] } ], "analysis": { "cardinality": 575, "char_count": 9957, "ocr_confidence": 0.933, "pagerank": { "raw": 7.552284461341054e-08, "percentile": 0.4481896434888675 }, "sha256": "7c2ebe74d59d2ef6fcf947cb584f68aaad963647ac2aa39bed036af80833d90e", "simhash": "1:5f1f89a2e1d4ca16", "word_count": 1612 }, "last_updated": "2023-07-14T16:51:01.167469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., dissents." ], "parties": [ "Joyce Davis HARVEY v. Rod BELL" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis case involves opposing parties who are real estate developers in Eureka Springs, and who are each developing subdivisions in close proximity of one another. Their conflict ensues from appellee\u2019s \u201chookup\u201d to an existing sewer line located within a subdivision established by appellant. Appellant contends appellee\u2019s action constituted an intentional trespass and encroachment, which entitles appellant to punitive damages and a mandatory injunction, compelling removal of appellee\u2019s sewer connection and manhole from appellant\u2019s property. Appellee\u2019s primary response, contained in his cross-appeal, is that appellant\u2019s sewer line had been dedicated to the public and that appellee\u2019s sewer hookup was lawfully installed within that public easement.\nAt trial, the chancellor rejected the appellant\u2019s and appellee\u2019s contentions (offered again here on appeal) but instead, determined that appellee had performed the sewer construction mistakenly but in good faith, that appellant\u2019s request for removal of the sewer hookup would require a forfeiture and deny equity, and that appellant was entitled to no punitive damages but was entitled to a judgment in the sum of $ 1,000, representing the damage to the lot on which the construction took place. Because we find the law and evidence support appellee\u2019s argument that his sewer connection was constructed within a publicly-dedicated easement, we affirm the chancellor\u2019s decision, denying appellant\u2019s request for an injunction and punitive damages, but reverse his award of compensatory damages to appellant.\nOur decision largely turns on the plat filed by appellant when she developed the Breezy Point Subdivision in 1976. In that plat, appellant dedicated \u201call roads and easements for the use of the general public and for installation of utilities.\u201d While the plat depicted the only road, Breezy Point Drive, that ran through the entire subdivision containing nineteen tracts, it did not define or locate the dedicated easements. The sewer line easement in issue here runs north-south about eight feet inside the west boundary line of Breezy Point tracts 4A, 9, 10, 11 and 12, which tracts, themselves, are located on the west side of the subdivision. Breezy Point Drive fronts these five tracts along their east boundary lines and Dairy Hollow Road abuts them along their west boundary lines.\nIn 1983, appellee purchased property west of Dairy Hollow Road and Breezy Point Subdivision, and in 1984, he contacted officials with the City of Eureka Springs about his plans to build apartments on his newly-acquired land. After submitting his master plan for building the apartment units, the city officials gave appellee permission to connect to the north-south sewer line situated on the aforementioned five tracts in Breezy Point Subdivision. In making this connection, appellee constructed a sewer line from his land east, crossing Dairy Hollow Road and extending about eight feet onto tract 9, where the hookup was made and a manhole was installed. After learning of appellee\u2019s action, appellant filed this suit.\nAppellant, by filing her plat on Breezy Point Subdivision, expressly dedicated that subdivision\u2019s utility easements for the use of the general public. Arkansas law concerning dedicated property is well-established, and in recounting that law in the early case of Frauenthal v. Slaten, 91 Ark. 350, 121 S.W.2d 395 (1909), the court said:\nAn owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.\n* * *\nThe fact of dedication depends upon the intention of the owner to dedicate to the public, as clearly and unequivocally manifested. But it is held that \u201cthe intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts.\u201d\nSee also Poskey v. Bradley, 209 Ark. 93, 189 S.W.2d 806 (1945); Holthoff v. Joyce, 174 Ark. 248, 294 S.W.2d 1006 (1927) and Hope v. Shiver, 77 Ark. 177, 90 S.W.2d 1003 (1905).\nAppellant argues the plat she filed failed to specifically show any defined utility easements. Her plat\u2019s omission of such specifications is not fatal to her dedication of such easements. She immediately caused the construction of the sewer easement in question here in 1976 or 1977, shortly after her filing the plat. Cf. Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983) (wherein no specific location of right of way was given in grant; court held subject to accepted standards of reasonableness, grantee was free to locate pipe line, but once selected, the right of way becomes fixed). Also, the law of this state has been long established that an unbounded easement is a grant of a valid right of way and that the limits are to be determined by the lines of reasonable enjoyment. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W.2d 645 (1924).\nAppellant\u2019s own testimony reflects she intended the sewer line dedicated for public use, but wishes to limit its use to preclude appellee. Although she claimed she had never dedicated the sewer line to Eureka Springs, she conceded the line connected to the city\u2019s main sewer line, and if the line on her tracts clogged or broke, she expected the city to fix it. She also testified that another developer (who owned property outside and north of appellant\u2019s subdivision), and \u201cmaybe\u201d the city, had previously connected onto this Breezy Point sewer line. Mr. Charles Fargo, an inspector for the city, testified that he knew the city had \u201csome type of an easement\u201d to access and fix the sewer line and that the city maintained that line. Fargo said that the city had tapped the sewer line for another apartment development near appellee\u2019s property.\nThus, the record clearly reflects the appellant dedicated the sewer-line easement to the public, and, since then, the city has accepted, maintained and tapped into that line. While appellant now seeks to limit access to the line, she had provided no such restriction or reservation in the Breezy Point plat which was used to dedicate the subdivision\u2019s utility easements. The respective rights of the public and owner dedicating easements are subject to the following rule:\nUnless there are reservations, the general public, that is to say any and everyone, has the right to use dedicated property to the full extent to which such easements are commonly used; and the person making the dedication may not object to such use whether the public owns the fee or only a right of way. However, no right exists to impose on the property dedicated burdens in addition to those placed on the property by the dedicator himself.\n26 C.J.S. Dedication \u00a7 54 (1956).\nHere, the city directed the appellee to hookup to the Breezy Point sewer line on Tract 9 and that connection indisputedly is a use which could reasonably and commonly be expected. In addition, appellant related that she had never intended to build anything \u201cover the sewer line.\u201d Appellant\u2019s objection is that she had not intended the city or appellee to cross onto her tracts to intersect the line\u2014an intention that has not been substantiated by her actions. Appellant has, by manifested acts, expressed that she expects the city to maintain the sewer line and had, even before this suit was filed, permitted the city to hookup to the line for a development north of her subdivision. Such actions only support her earlier dedication of the utility easement contained in the plat that was filed establishing Breezy Point Subdivision.\nIn this de novo review, we conclude the appellant had dedicated the sewer line easement to the general public, and, therefore, the appellee\u2019s sewer hookup was lawful and within the lines of reasonable enjoyment and compatible with the public sewer line.\nPurtle, J., dissents.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "John I. Purtle, Justice,\ndissenting. The majority opinion literally adds insult to injury inasmuch as the opinion not only allows the appellee to appropriate the appellant\u2019s property for his own use, it also takes away the piddling sum awarded by the trial court. I am beginning to understand the dialogue between Socrates and Thrasymachus, as recorded by Plato in his Republic, where it is stated: \u201cJustice is in the interest of the stronger.\u201d\nThe city had no right to permit the appellee to go onto appellant\u2019s property and connect his apartment complex\u2019s sewer system onto the appellant\u2019s privately installed system. I make these statements because I do not find anywhere in the record where the site of the connection was within the dedicated right-of-way. Apparently the majority finds no such dedication either as the opinion resorts to finding an \u201cimplied dedication.\u201d\nAccording to the plat introduced into this record, the appellee constructed a manhole outside the dedicated right-of-way and connected his sewer to a line on the appellant\u2019s property. In all probability appellant deliberately installed the sewer line on her own property in order to prevent such intrusions as in the case before us.\nThe fact that the location of this particular connection was more desirable and less expensive than another does not authorize the appellee to privately condemn appellant\u2019s property for his own personal gain. I am not a real estate expert, but I am able to read the plat of Breezy Point Subdivision, and if the exhibit correctly locates the connecting point of appellee\u2019s sewer line, there is no doubt that the appellee trespassed upon appellant\u2019s property and permanently damaged it. The appellant should at least be indemnified for this permanent trespass on her property.", "type": "dissent", "author": "John I. Purtle, Justice," } ], "attorneys": [ "Davis & Associates, P.A., by: Charles E. Davis, for appellant.", "Ball, Mourton & Adams, Ltd., by: Stephen E. Adams, for appellee." ], "corrections": "", "head_matter": "Joyce Davis HARVEY v. Rod BELL\n87-12\n732 S.W.2d 138\nSupreme Court of Arkansas\nOpinion delivered July 6, 1987\nDavis & Associates, P.A., by: Charles E. Davis, for appellant.\nBall, Mourton & Adams, Ltd., by: Stephen E. Adams, for appellee." }, "file_name": "0657-01", "first_page_order": 689, "last_page_order": 694 }