United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3659

___________ Jerry D. Patterson and * Mary Lou Patterson, * * Appellants, * * v. * Appeal from the United States * District Court for the Western Buffalo National River, A Part of * District of Arkansas. the Department of the Interior, * An Agency of the United States of * America, * * Appellee. *

___________ Submitted: April 16, 1998 Filed: May 18, 1998

___________ Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
In 1939, the Jack Hall family acquired approximately 160 contiguous acres i n
no rthern Arkansas. The family divided that acreage and sold about half of it to th e federal government in 1 976. Ten years later, after the government specifically denied that the rest of the acreage had any easement rights across the federal land, the Hal l family sold the rest of the acreage to Jerry and Mary Lou Patterson. In 1994, the-2-

Patters ons sued the federal government under the Quiet Title Act, see 28 U.S.C

. § 2409a, s eeking a declaratory judgment that they owned an easement by implication or by necessity across the federal land.
The district court granted su mmary judgment to the government, holding that in the 1 976 deed conveying approximately half of the original acreage from the Hal l family to the

government, there was specific language that released that acreage from any easement rights across it. The district court concluded that the Hall family (and, constructively, the Pattersons) thus had notice as of 1976 that the government asserted a right adverse to the rest of the acre age -- specifically, that the rest of the acreage had no easement rights acros s the federal land. The district court ruled, therefore, that the 12-year lim itations period, see 28 U.S.C. § 2409a(g), began running in 1976 an d expired in 1988, well before the Pattersons brought their suit. On a very closely related basis, the district court held in the alternative that even if the Hall family (and , constructively, the Pattersons) had no notice until 1986 that the government asserted
a right adverse to the rest of the acreage, and thus that the Pattersons' suit could b e conside red timely, the 1976 deed had already conveyed away any easement right s across the federal land.
On appeal, we reversed. Se e Patterson v. Buffalo National River , 76 F.3d 221, 223, 227 (8th Cir. 1996). We held, first, that the language in the 1976 deed wa s ambiguous and that because the government did not actually deny until 1986 that the rest of the acreage had any easement rights across t he federal land, there was no notice until then of a right adverse to the rest of the acreage. Id. at 224. We concluded , therefore, that the limitations period did not begin to run until then. Id. Accordingly, we ruled that the Pattersons' suit, brought in 1994, was timely. Id. at 223-24.

We also held that the release language in the 1976 deed did not refer to an y easement rights claimed by the Pattersons. Id. at 224-25. Finally, we held that factual questions needed to be reso lved before a determination could be made with respect to-3-

whether the Pattersons had any easement rights at all across the fede ral land, id. at 225- 26, and, if so, whether such easement rights were by implication or by necessity, id. at 226-27.
On remand, the district court held a bench trial and foun d that the Pattersons had proved that the y were entitled to an easement by necessity across the federal land but not to an easement by implication across that land. See generally id. at 226 (unde r Arkansas law, both types of easements require a showing that the Pattersons needed access to the federal land and both would have been cre ated, if at all, when the original acreag e was divided into the federal land and what became the Pattersons' land; a n easement b y necessity, however, would have been created by the division of th e original acreage, while an easement by implication would have been created by the Hall family's open use, before the division of the original acreage, of what became th e federal land).

The Pattersons moved for an award of attor ney's fees under the Equal Access to Ju stice Act, see 28 U.S.C. § 2412(b), but the district court denied the motion. In it s order denying those fees, the district court held that the government's position had been "subs tantially justified," see 28 U.S.C. § 2412(d)(1)(A), and therefore that th e Pattersons were not entitled to attorney's fees under the statute. The Pattersons appeal the order denying attorney's fees.

We review th e district court's order for an abuse of discretion. See , e.g. , Pierce v. Und erwood , 487 U.S. 552, 559, 570-71 (1988); see also id. at 563 an d Friend s of the Boundary Waters Wilderness v. Thomas , 53 F.3d 881, 884 (8th Cir

. 1995). After careful consideration, we reverse the order of the district court denying at torney's fees to the Pattersons, and we remand the case for further proceeding s consistent with this opinion.-4- I. In this circuit, the position of the government was "substantially justified," see 28 U.S.C. § 2412(d)(1)(A), under the Equal Access to Justice Act, see 28 U.S.C

. § 2 412, if that position "was ' clearly reasonable , well founded in law and fact, soli d th oughnot necessarily correct.' " Friends , 53 F.3d at 885, quoting United States v

. 1,378.65 Acres of Land , 794 F.2d 1313, 1318 (8th Cir. 1986) (emphasis in Friends );
see also Pierce , 487 U.S. at 565, 566 n.2. We have examined multiple cases in which
our court has reversed as an abuse of discretion a district court's ruling that th e government's position was substantially justified (and thus that an award of fees to a prevailing opposite party should be denied).

Some such reversals have occurred in circumstances in which a statute wa s unambig uous but the government construed it in a way that was both "contrary to the prope r definition," Friends , 53 F.3d at 884, and "contrary to existing law," id. at 885. See id. at 886; see also Moseanko v. Yeutter , 944 F.2d 418, 428-29 (8th Cir. 1991). Other reversals have occurred in instances in which the government admitted that i t "fa iled to follow established precedent" on the amount of investigation required an d then a sked for permission to reconsider a disability claim, Koss v. Sullivan , 982 F.2d 1226, 1229 (8th Cir. 1993), see also Gamber v. Bowen , 823 F.2d 242, 245 (8th Cir. 1987), and Granville House, Inc. v. Department of Health, Education, and Welfare , 813 F.2d 881, 884 (8th Cir . 1987), and when only the slightest factual evidence supported the government's position with res pect to a disability claim, even that evidence did not directly contradict the claimant's evidence, and the government "disregarded th e
ove rwhelming evidence in the record" supporting the claimant, Gowen v. Bowen , 855 F.2d 613, 616 (8th Cir. 1988), see also Bailey v. Bowen , 827 F.2d 368, 371 (8th Cir. 1 987), Wheat v. Heckler , 763 F.2d 1025, 1031 (8th Cir. 1985), and Cornella v

. Schweiker , 728 F.2d 978, 984 (8th Cir. 1984). See also Derickson Company, Inc. v. National Labor Relations Board , 774 F.2d 229, 233-35 (8th Cir. 1985).-5- II. In the Pattersons' case, the government originally argued that th e 1976 deed gave notice that the government asserted a right adverse to wh at became the Pattersons' land and therefore that the limitations period expired before the Patterso ns brought their suit. Th e government also argued that the release language in the 1976 deed specificall y conveyed a way any easement rights across the federal land. We believe that thes e argument s were clearly not " 'well founded in law,' " Friends , 53 F.3d at 885, quoting 1,378.65 Ac res , 794 F.2d at 1318, and thus that the government's initial litigatin g posture was not substantially justified.

On rem and, furthermore, the Pattersons presented evidence that what becam e their la nd had been inaccessible since 1976, except by crossing the federal land o r adjacent pro perty owned by others. The government never rebutted or even disputed th atevidence but insisted that the Pattersons had to acquire their access from th e owners of those adjace nt parcels, presumably by purchase or by the use of Ark. Code Ann. § 2 7-66-401, which authorizes the creation of a private road on another's lan d under certain ci rcumstances. See also Ark. Code Ann. § 27-66-402 through § 27-66- 404.

As the district

court noted following the bench trial, however, because the Hall family o nce owned both the federal land and what became the Pattersons' land, th e Pattersons, under the common law of Arkansas, were plainly entitled to an easement by necessity across the federal land. See , e.g. , Powell v . Miller , 785 S.W.2d 37, 38-39 (Ark. Ct. App. 1990); see also Burdess v. United States , 553 F. Supp. 646, 649-50, 652 (E.D. Ark. 1982), and Ri ffle v. Worthen , 939 S.W.2d 294, 298 (Ark. 1997). The law of Arkansas, moreover, does not require the Pattersons to resort to the procedure s under state statute, see Ark. Code Ann. § 27-66-401 through § 27-66-404, to obtai n access from the

owners of other adjacent parcels. See , e.g. , Burdess , 553 F. Supp. at 652-53; see also Powell , 785 S.W.2d at 38-39.-6-

We hold that in light of Arkansas law with respect to easements by necessity and in light of the governm

ent's failure to rebut or even to dispute the Pattersons' evidence that what became their land has been inaccessible since 1976, except by crossin g property owned by the g overnment or by others, the government's position on remand
was substantially justified in neither law nor fact. See , e.g. , Friends , 53 F.3d at 885, and Gowen , 855 F.2d at 616.

III. For the re asons stated, therefore, we reverse the district court's order denyin g at torney's fees to the Pattersons, and we remand the case for further proceeding s consistent with this opinion.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.