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Abbene v. Cohen
Citations: 1957 Ark. LEXIS 426; 228 Ark. 266; 306 S.W.2d 857Docket: 5-1375
Court: Supreme Court of Arkansas; November 18, 1957; Arkansas; State Supreme Court
Yince Abbene, the appellant, filed a lawsuit seeking to prevent Jay Cohen and his wife, the appellees, from closing an alley adjacent to Abbene's business at 617 Main Street in Pine Bluff, Arkansas. Abbene and David White, a lessee of an adjacent property, claimed they and the public had openly and continuously used the passageway for many years, thus establishing a prescriptive right or easement over a portion of the appellees' property, specifically an area 20 feet wide and 118.89 feet long. In response, the appellees denied these claims, asserting that any usage was sporadic, based on specific agreements, and permissive. The chancellor dismissed Abbene's complaint, concluding that there was no intent on the part of Abbene and White to use the passageway adversely against the appellees, and that their use was permissive. The primary legal question is whether these findings contradict the preponderance of the evidence. The law states that an easement can be established by open, notorious, and adverse use for seven years, but such use must indicate to the property owner that it is being done under a claim of right. The burden of proof rested on Abbene to demonstrate that the usage was adverse. The appellees’ lot is shaped like an inverted 'L', with a vacant portion claimed by Abbene extending south from Sixth Avenue. The appellees have rented this vacant area for passageway use to other businesses over the years. Abbene's building, built in 1919, transitioned from a shoe repair shop to a laundry and cleaning business under his ownership since 1946. Testimony revealed that Cohen had previously sought rent from Abbene for the use of the passageway but later agreed to a limited use without charge due to Abbene's financial difficulties. Both Abbene and White acknowledged awareness of other property owners paying for similar access, yet Abbene did not assert any claim to the passageway until this lawsuit. A prospective buyer of Abbene's building testified that Abbene had granted him permission to access appellees’ property and suggested that a similar arrangement could be made. Appellants and their employees indicated that they and their customers had used the disputed area for parking for the past 12 to 15 years, with some freight deliveries also reported, although most deliveries were made through the front entrances on Main Street. A partner in a transfer business noted that his trucks had delivered freight through the passageway at least a dozen times since 1946. Despite some witnesses believing the area was an alley, it was never formally designated as such. Ultimately, appellants modified their claim of an easement from a 20-foot width to "approximately 10 or 12 feet." The chancellor determined that the use of the passageway by appellants and others was permissive rather than adverse, citing the precedent set in LeCroy v. Sigman, which supported the conclusion based on similar circumstances. Factors favoring the appellees included the close friendship between the parties, the closure of the South entrance without objection in 1946, and the collection of rental payments for the area from other owners over 12 to 15 years. The chancellor's findings were upheld as consistent with the evidence, leading to the affirmation of the decree. Chief Justice Carleton Harris did not participate in the decision.