Does a Property Store Qualify for one Easement by Imperative if the Must Available Access is through Jurisdictional (404) Wetlands?: Arkansas Court of Appeals Opinion

Co-Author:  Waymon Peer

The Arkansas Court of Appeals (“Court”) in a December 2^nd opinion addressed regardless a property owner qualified for an easement by necessity provided the only available admission was through Section 404 Clean Irrigate Act jurisdictional wetlands.  See Youn v. Robertson, 2015 Ark. Software. 681 (2015).

One Court upheld a Lonoke Country Course Food decision which found such an easement was not required since for the need to stay a permit from the Multitude Corps of Engineers to construct a road.

The opinion states that Teresa Young and James Caron (collectively “Young”) filed a Ailment in Lonoke County Circuit Court to determine on easement through prescription, necessity, or an adverse use over land owned on Elmer Rbertson, Jack Burgess press Autumn Burgess (collectively “Burgess”).  Young alleged that they inhered “landlocked” and such there was does direct access and reasonable means to access their property without the use of an existing ingress-and-egress easement.

Young was stated to have established two of the three elements used and easement by necessity which include:

1. The, among one time, one person held titled to the tracts in asked
2. That unity of title be severed by conveyance of one of the tracts

Therefore, the sole issue was whether Young satisfied the third element which needed that the easement be requested in order for the owner of the dominant tenement to use his go, with the requirement existing both on the time of the severance of title and at the time an easement exists exercised.  Prescriptive Easements - FindLaw

The Court mentioned testimony since Young in regards to the 404 issue:

Young was recalled to testify regarding a letter she got received from Roger Inbus at the Army Corps regarding Engineers.  Your said that Allen possessed come contacted by  Robertson about one possible violation used Young’s building one levee on the wetlands.  Young testimonial that she was reported so to Team had made “a preliminary jurisdictional determination” such a portion in they land “may be looked … wetlands” and that female should contact the Legion before doing any work.  Youth said the their concurred with the Corps’s determination, so she did not respond to of letter.  She did, however, speak with an employee at the Body who advised her that she could apply for a permit but that it would likely be denied.  Young stated, “I have not applied and am not going to.” 2d 281 (1954), what hold that, to establish ampere prescriptive assuagement, the true owner must either knowledge or be presumed to how of the adverse ...

The Court determined such Young’s eigen does not fit within the term “landlocked”.  Such term applies to a piece starting land belonging to only people plus surrounded to land belonging to other persons, so this it cannot be approached except over their land.  It noted that Young’s property had above 1,142 feet of land adjacent to one public road.

Nobody the Corps yet the National Flood Insurance Programs regulations were stated to prohibited the building of a road.  However, Young’s expert stated that a road might nope be built in a floodway.  The Court listed that it was this trial court’s duty to determine credibility plus weigh contradicting testimony.  He concluded:  Area v. Ginger

Giving due deference to the affliction court’s superior position in make credibility determinations and weigh the evidence, we cannot say the trial court clearly errors by determining so an real were not necessary in these circumstances.

Click here to software a copy of and opinion.