Cite as 2016 Ark. App. 576

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-16-133 

BO D. BRIGGS, INDIVIDUALLY, AND 

D/B BRIGGS & ASSOCIATES, LLC

APPELLANTS

V.

MORGAN MAGNESS, JUDITH B. 

MAGNESS, GEORGE W. FOSTER III, 

JACK LONDON, KAREN LONDON, B. 

DOUGLAS STOKES, SARAH MOORE 

STOKES, MICHAEL ROBERSON,

SARA ROBERSON, DIANNE WOOD, 

AND LINDA YOUNG

APPELLEES

Opinion Delivered: NOVEMBER 30, 2016

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SECOND DIVISION

[NO. 60CV-15-3176]

HONORABLE CHRISTOPHER 

CHARLES PIAZZA, JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge 

 This case involves the interpretation of restrictive covenants for a subdivision known 

as Belle Pointe Subdivision in Little Rock (the subdivision). The trial court ruled that 

restrictive covenants encumbering the subdivision prevented appellant D/B Briggs & 

Associates, LLC (Briggs) from accessing a new planned development through the 

subdivision. On appeal, Briggs contends that the trial court erred in failing to properly apply 

the “unfettered use” rule in construing the restrictive covenants applicable to the 

subdivision. We affirm. 

 In 1989, Darbe Development Company (Darbe) developed Belle Pointe Subdivision 

(the subdivision). The subdivision can be generally described as a one-street subdivision 

lying in a north-south orientation with a cul-de-sac at each end. Belle Pointe Drive 
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2 

connects the two cul-de-sacs with numbered residential lots on either side of the drive. 

This litigation pertains to the cul-de-sac at the north end. Adjacent to, and north of, this 

cul-de-sac is a 40-acre tract of undeveloped land, which is the land that Briggs intends to 

use to build his new development. Lot 25 of the subdivision lies on the left side (west) of 

the cul-de-sac, and Lot 26 lies to the right side (east) of the cul-de-sac. Lot 25 and Lot 26 

do not have a common border. Instead, between Lots 25 and 26 is a triangular area of land 

styled “Tract A.” Briggs desires to build a street or driveway from the cul-de-sac through 

Tract A to gain access to his new 40-acre development. The appellees,1

 various owners of 

lots within the subdivision, do not want the cul-de-sac opened up to the new development. 

Melvyn Bell, Darbe’s principal shareholder, owned the forty acres lying north and 

contiguous to Tract A. When Darbe created the subdivision, Darbe filed a bill of assurance 

(the original bill of assurance) and a plat (the original plat) of the subdivision. The original 

bill of assurance for the subdivision provided, in relevant part: 

 [Darbe] has donated and dedicated to the public no right-of-way for streets, 

but does hereby provide for an easement as a common drive for Belle Pointe, within 

the area shown on the Plat, as access, drainage and utilities, to be used for ingress, egress 

and regress only by the owners of the lots 1-32, Tract ‘A’ and Tract ‘B’ and the 40 acres, 

[description omitted], lying North of and contiguous to Tract ‘A’ and Lots 24 and 25, their 

agents, licensees, family, guests, invitees and for fire, police, postal and related 

services. 

(emphasis added). The original bill of assurance also provided that “[t]he land herein platted 

shall be held, owned and used only as residential building sites. Tract ‘A’ shall remain open 

space until combined with other land to make a buildable residential lot with the approval of the Little 

 

1Morgan Magness, Judith B. Magness, George W. Foster III, Jack London, Karen 

London, B. Douglas Stokes, Sarah Moore Stokes, Michael Roberson, Sara Roberson, 

Dianne Wood, and Linda Young. 
Cite as 2016 Ark. App. 576 

3 

Rock Planning Commission.” (emphasis added). Tract A was shown on the original plat as 

being located between residential lots 25 and 26 and overlapping part of the cul-de-sac at 

the north end of the subdivision. 

 The subdivision was replatted (the replat) in 1993 by a property owners’ 

improvement district owning more than seventy-five percent of the property within the 

subdivision. The replatting was designed to create more lots over the same area, resulting 

in eight additional lots.2 Along with the replat, the improvement district created and filed 

an amended and restated bill of assurance (the restated bill of assurance) for the subdivision. 

In relevant part, the restated bill of assurance provided: 

 The undersigned hereby donates and dedicates to the public an easement of 

way on, over and under the streets owned by the undersigned as shown on the Plat 

to be used as public streets as well as any landscaped areas. 

. . . .

 The Original Bill of Assurance made no dedication or donation to the public 

of right-of-way for streets, but said Original Bill of Assurance and Original Plat did 

provide for certain easements for a common drive, access, drainage and utilities as 

shown on the Original Plat. To the extent not hereby dedicated to public use, the 

undersigned reaffirms such easements as shown on the Original Plat and nothing 

herein shall be deemed to amend or revoke the prior grant of said easements. 

(emphasis added). In addition, the restated bill of assurance again provided that “Tract A 

shall remain open space until combined with other land to make a buildable residential lot with the 

approval of the Little Rock Planning Commission.” (emphasis added). 

 Briggs entered into a contract to purchase Tract A of the subdivision and the 

contiguous forty acres north of Tract A with the intention of creating Belle Pointe View 

 

2Lot 25 became Lot 30R, and Lot 26 became Lot 31R. The configuration of Tract 

A appeared to be unchanged. 
Cite as 2016 Ark. App. 576 

4 

Estates (BPVE) subdivision. In the proposed plat for BPVE, Briggs combined a portion of 

the forty acres of undeveloped land along with Tract A of Belle Pointe to create a new 

proposed buildable residential lot. And, more importantly, the proposed plat showed that 

Tract A would be used for a street or driveway for access to BPVE from the Belle Pointe 

Subdivision.

 On July 14, 2015, appellees, as property owners on the subdivision, filed an action 

for declaratory judgment. They contended that Briggs’s plan to construct a street or 

driveway across Tract A violated the restated bill of assurance providing that Tract A would 

remain open space until combined with other land to make a buildable residential lot. 

 Briggs answered and counterclaimed, contending that it intended to build a gated, 

private drive and that the Belle Pointe subdivision restrictions did not prohibit Tract A from 

being used for a private drive. Briggs requested injunctive relief to enjoin appellees from 

interfering with its development of Tract A for that purpose. Briggs subsequently filed a 

motion for summary judgment. The appellees filed a response to Briggs’s summaryjudgment motion and a countermotion for summary judgment. 

 The trial court conducted a hearing on the pending cross-motions for summary 

judgment. At the conclusion of the hearing, the trial court announced that it would grant 

the appellees’ motion for summary judgment, thereby prohibiting Briggs from using Tract 

A as an access drive to its new proposed subdivision. The order memorializing the trial 

court’s findings and ruling was entered on November 5, 2015, and that order recites in 

relevant part: 

 3. The sole issue to be decided by this court was whether Defendant is 

prohibited by the restrictive covenants of Belle Pointe Subdivision to use Tract A to 
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5 

construct a private drive to access Briggs’s proposed subdivision adjoining Tract A of 

Belle Pointe Subdivision. 

 4. The parties agree that the Court, in construing restrictive covenants, must 

do so by applying the “strict construction” test so that “all doubts are resolved in 

favor of the unfettered use of land.” Royal Oaks Vista, LLC v. Maddox, 372 Ark. 

119, 271 S.W.3d 479 (2008). 

 5. In applying the above standards for construction for Bills of Assurance, the 

Court finds that the operative document is the 1993 Restated and Amended Bill of 

Assurance that says Tract A shall remain open space and it will combine other land 

and make a buildable residential lot with the approval of the Little Rock Planning 

Commission. The Court finds that language amends the original Bill of Assurance 

and is very specific that there was going to be a building with land combined to Tract 

A and the Little Rock Planning Commission was required to approve it. 

6. Accordingly, the Court GRANTS Plaintiffs’ Motion for Summary 

Judgment to declare that Tract A may only be combined with other areas outside 

Belle Pointe Subdivision to make a single residential lot. 

 On appeal, Briggs contends that the trial court erred by imposing a restriction on 

Tract A that was not clearly apparent from the bills of assurance. Briggs further asserts that 

the trial court erred by failing to construe both the original bill of assurance and the restated 

bill of assurance together in arriving at its decision. 

 Ordinarily, on appeal from a summary-judgment disposition, the evidence is viewed 

in the light most favorable to the party resisting the motion, and any doubts and inferences 

are resolved against the moving party. Abraham v. Beck, 2015 Ark. 80, 456 S.W.3d 744. 

However, in a case where the parties agree on the facts, we simply determine whether the 

appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions 

for summary judgment, as they did in this case, they essentially agree that there are no 

material facts remaining, and summary judgment is an appropriate means of resolving the 

case. Id. As to issues of law presented, our review is de novo. Id. 

 At issue in this case is the interpretation of a protective or restrictive covenant on the 

use of land. Our courts have observed that restrictions on the use of land are not favored 
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6 

in the law. Royal Oaks Vista, L.L.C. v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008). 

Further, a restrictive covenant will be strictly construed against limitations on the free use 

of land. Id. Thus, all doubts are resolved in favor of the unfettered use of land. Id. In 

addition, the supreme court has stated that the general rule of interpretation, application, 

and enforcement of restrictive covenants is that the intention of the parties as shown by the 

covenant governs. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). Any 

restriction on the use of land must be clearly apparent in the language of the asserted 

covenant. Id. Where the language is clear and unambiguous, the parties will be confined 

to the meaning of the language employed, so long as the meaning does not defeat the plain 

and obvious purpose of the provision. Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 

S.W.3d 145 (2006). The rule of strict construction is limited by the basic doctrine of taking 

the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 

4 (1996). 

Briggs argues that the application of the “unfettered use” rule, as outlined above, 

allows it to use Tract A to access its adjacent BPVE development and that the trial court 

erred in deciding otherwise. However, applying the principles above to the restrictive 

covenants at issue here, we disagree. 

In arguing that the restrictive covenants prohibited Briggs’s intended use of Tract A, 

the appellees rely on our decision in Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 

S.W.2d 207 (1984). There, we held that a restrictive covenant providing that “no lot shall 

be used except for residential purposes” was violated by the appellant’s intended use of one 

of the subdivision lots to access its apartment complex, which was not part of the 
Cite as 2016 Ark. App. 576 

7 

subdivision. We indicated that such a restrictive covenant permitted only uses that were 

reasonably incidental to residential uses. We concluded in Briarwood Apartments that the use 

of the appellant’s lot as a connecting street to access the adjoining apartment complex was 

not in any sense a residential use or a use incidental thereto. 

In the case at bar, the trial court determined that Briggs’s intended use of Tract A as 

access to a separate subdivision was inconsistent with the use of Tract A as stated in the 

restated bill of assurance. More particularly, the restated bill of assurance provided that Tract 

A shall remain open space until combined with other land to make a buildable residential 

lot with the approval of the Little Rock Planning Commission. The restated bill of 

assurance further provided that “[no] structures or other improvements shall be erected, 

altered, placed or permitted to remain on any building site other than a single detached 

single-family residence and the appurtenance thereunto such as a driveway, sidewalks, and 

fences[.]” Although Briggs argues that the restriction on Tract A as found by the trial court 

was not clearly apparent, we agree with the trial court that the language employed in the 

restated bill of assurance evinced a clear intent to limit Tract A to a single residential use. 

Because a roadway as access to other property is inconsistent with such residential use, the 

trial court’s interpretation of the restrictive covenants was correct. See Briarwood Apartments, 

supra. 

 Briggs, however, argues that the original bill of assurance was incorporated by 

reference into the restated bill of assurance, and that the original bill of assurance granted an 

easement across Tract A to access the 40-acre tract to the north, which allows for the 

common drive that Briggs proposes to develop. Briggs relies on the language in the original 
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8 

bill of assurance providing for an easement for ingress and egress to the property owners 

within the subdivision, and also to Tract A and the 40 acres lying north and contiguous to 

Tract A. 

 Assuming arguendo that the restated bill of assurance did incorporate by reference the 

original bill of assurance, the restated bill of assurance terminated any easement across Tract 

A, if one in fact existed. The person asserting an easement has the burden of proving the 

existence of the easement. Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997). An 

express grant of an easement must be clearly and unmistakably communicated by the clear 

intention of the grantor. 25 Am. Jur. 2d Easements and Licenses § 14 (2016). Moreover, the 

grant should identify the easement’s location with specificity. Wilson v. Johnston, 66 Ark. 

App. 193, 990 S.W.2d 554 (1999). 

 We observe that the original bill of assurance contains inconsistent provisions as to 

whether there was an intention to create an easement over Tract A to the contiguous 40-

acre tract. The provision relied on by Briggs to assert such easement specifically describes 

the easement as being “within the area shown on the plat.” However, the original plat 

depicts the easement ending at the cul-de-sac; the easement as shown on the plat does not 

extend across Tract A to the undeveloped 40-acre tract. Furthermore, the original bill of 

assurance contains conflicting language providing that Tract A shall remain open space until 

combined with other land to make a buildable residential lot with the approval of the Little 

Rock Planning Commission, and this provision would be inconsistent with a public street. 

 Even if we were to determine that the intent of the original bill of assurance was to 

create an express easement across Tract A, we conclude that the easement was subsequently 
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9 

terminated. An easement can terminate either by expiring in accordance with the intent of 

the parties manifested in the creating transaction, or by being extinguished by the course of 

events subsequent to its creation. See Sluyter v. Hale Fireworks P’ship, 370 Ark. 511, 262 

S.W.3d 154 (2007). In this case, the express terms of the restated bill of assurance terminated 

any claim to an easement over Tract A. 

 The operative language in the restated bill of assurance is as follows: 

The Original Bill of Assurance made no dedication or donation to the public of 

right-of-way for streets, but said Original Bill of Assurance and Original Plat did 

provide for certain easements for a common drive, access, drainage and utilities as 

shown on the Original Plat. To the extent not hereby dedicated to public use, the 

undersigned reaffirms such easements as shown on the Original Plat and nothing herein 

shall be deemed to amend or revoke the prior grant of said easements. 

(emphasis added). The original plat does not show an easement across Tract A to the 

contiguous 40-acre tract to the north, nor does the restated plat, so by the express terms as 

restated in the restated bill of assurance, no such easement exists. 

We hold that the trial court’s application of the “unfettered use” rule to these 

restrictive covenants was not erroneous. Because the restated bill of assurance contains 

restrictions preventing Briggs’s intended use of Tract A, and there is no existing easement 

to otherwise allow for access across Tract A, we affirm the trial court’s summary judgment 

entered against Briggs and in favor of the appellee landowners. 

 Affirmed. 

 GLADWIN, C.J., and KINARD, J., agree. 

Friday, Eldredge & Clark, LLP, by: Bruce B. Tidwell, for appellants. 

Marian M. McMullan, for appellees.